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Income Tax Appellate Tribunal, DELHI BENCH “SMC-F”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI
O R D E R PER PRASHANT MAHARISHI, A. M. 01. This appeal is filed by the assessee against the order of the learned Commissioner of Income Tax (Appeals) – 2, Noida dated 20/12/2017 for Assessment Year 2009 – 10 raising several grounds of appeal
. The learned Commissioner Of Income Tax Appeals has confirmed the order of the learned Assessing Officer wherein the addition of Rs. 4687500/-being one half share of the assessee on sale of property was charged to capital gain by the learned Assessing Officer vide order dated 8/11/2016 u/s 147 read with section 144 of The Income Tax Act 1961 for that year.
02. The learned Assessing Officer received AIR information in case of the assessee that he has sold an immovable property for ₹ 9375000/– jointly with Sri Jaiveer Singh during the financial year 2008 – 09 but has not paid taxes on capital gains arising on the said transaction. Therefore, the case of the assessee was reopened u/s 147 and notice under section 148 was Page | 1 issued on 18/3/2016. Further the notice under section 142 (1) of the act was also issued to the assessee requiring him to file return of income but assessee has neither filed a return of income nor made any compliance of notice. Therefore, the learned assessing officer passed in assessment order on 8/11/2016 assessing the total income of the assessee at ₹ 4687500 holding that the assessee has earned the short-term capital gain on the sale of the above property.
3. The assessee aggrieved with the order of the AO preferred an appeal before the learned CIT (A) who also confirmed the action of the learned assessing officer however, he granted the deduction of the cost of acquisition after indexing.
The brief fact shows that assessee sold one property on 31/7/2008 and sale consideration was received of ₹ 24.40 lakhs whereas the stamp value of the property was at ₹ 9 375000/–. The assessee submitted that the land sold by the assessee is situated in village Daryapur Buzurg and is out of the limits of Nagar Palika Gajuraula, Dist Amroha. The main contention of the assessee is that the impugned land is situated beyond 8 km from the outer limits of nearest municipal Corp. Therefore such land was not a capital asset within the meaning of section 2 (14) (iii) (b) of the act. The assessee relied on the certificate dated 24/10/2017 issued by the executive officer, Nagar Palika Parishad Gaujraula. The learned commissioner of income tax found that the impugned municipal Corp had a population of 39826 and the land is situated 2.9 km away from the outer limit of that corporation. Therefore, it was held that the impugned land sold is a capital asset as measured by Google Maps. Therefore the simple issue in appeal is that whether the distance from the outer limit of municipal corporation is Page | 2