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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV & SHRI A. K. GARODIA
Per Sunil Kumar Yadav, Judicial Member
This appeal is preferred by the Revenue against the order of CIT(A), inter alia, on the following grounds:
The order of the Learned CIT(Appeals), in so far as it is 1. prejudicial to the interest of revenue, is opposed to law and the facts and circumstances of the case. 2. The Ld.CIT(A) erred in relying on the certificate issued by the Assistant Executive Engineer of the Public Works Ports and Inland Water Transport Department to arrive at the conclusion that the distance of the subject agricultural land is more than 8 km from the nearest municipal limit i.e., Bangalore as the AO has Page 2 of 9 rightly relied on the competent authorities notifications viz., Gazette Notification of Govt. of Karnataka dtd.02.11.2006 and BBMP 0.M dtd.17.01.2007 while determining that the subject land is situated in an area which is within 8 kms from the nearest village coming under the BBMP limits, by road, and thus qualifies as 'capital asset' within the meaning of section 2(14) of the I.T. Act. In the facts and circumstances of the case, the Ld.CIT(A) 3. erred in allowing relief to the assessee by deleting the addition of LTCG made by the AO, as the assessee has made contradictory claims of exemption under various sections regarding capital gain for which he is not entitled, in different returns filed by the assessee for the A.Y under consideration. For these and such other grounds that may be urged at the 4. time of hearing, it is humbly prayed that the order of the Ld.CIT(A) be reversed and that of the Assessing Officer be restored.
5. The appellant craves leave to add, to alter, to amend or delete any of the grounds that may be urged at the time of hearing of appeal.
During the course of hearing, the learned DR has invited our attention that during the course of assessment proceedings, AO has noted that assessee has claimed the exemption under section 54B for the entire capital gain worked out at Rs.49,40,43,000/- on sale of agricultural land. Subsequently, the assessee has filed a revised return on 15.09.2014 and in computation, the long term capital gain on sale of agricultural land has been worked out to be at Rs.5,09,23,879/- on net sale consideration of Rs.5,25,00,000/- and exemption was claimed under section 54B for the entire long term capital gain. The assessee was asked to justify his claim and in response thereto he has stated that he has not sold any capital asset as per sale deed dated 28.08.2012. It was further contended that land is situated in the village of Bettahalasur of population of 2693. Before the AO, the assessee has filed a certificate of the President, Bettahalasur Gram Panchayat stating that the Bettahalasur Village is 11 K.M. away from Yelahanka and 12 K.M. away from Page 3 of 9 Devanahalli.
Having carefully examined the details furnished by the assessee, the AO came to the conclusion on the basis of copy of google map showing the distance from Govindapura Village (BBMP limit) to Bettahalasur Village from nearest road distance is 6.8 K.M. and copy of Govt. of Karnataka notification dated 02.11.2006 notifying the BBMP limit, that agricultural land is within 8 KM from the BBMP limit and the AO asked the assessee to explain and justify the distance between the impugned property and the municipal limit of BBMP. A query raised by the AO was not properly replied by the assessee and the AO came to the conclusion that the distance between Bettahalasur and BBMP limit is 6.8 KM, therefore, the agricultural land is not a capital asset within the meaning of section 2(14) of the Act. He accordingly computed the long term capital gain of Rs.5,09,23,878/-.
Aggrieved, the assessee has preferred an appeal before the CIT(A) and filed a certificate from the Assistant Executive Engineer dated 01.06.2016 certifying that the distance from the impugned land and the BBMP limit is 8.1 KM by road. Though the certificate was sent to the AO but the AO has not made any comments thereon and the CIT(A) having relied upon the certificate of PWD has held that the distance between the impugned land and the BBMP limit is more than 8 KM and accordingly the addition made on account of capital gain was deleted.
Aggrieved, the Revenue has preferred an appeal and placed the reliance upon the notification issued by the Urban Development department determining the boundary of BBMP. It has also been stated in the notification that in north the boundary starts from the junction of Govindapura and Biderapura but in the certificate issued by the Assistant Executive Engineer Public Works Department, it was simply stated that the distance of impugned land in Bettahalasur place from Page 4 of 9 the BBMP limits as on 28.08.2012 is 8.1KM by road, whereas the distance is to be calculated from the Govindapura and Biderapura upto which the BBMP limit goes. It was further contended that notification was confronted to the assessee during the course of assessment proceedings but he did not furnish any reply. It was also contended that distance between the impugned property and the municipal limit is to be determined through aerial distance. During the course of assessment proceedings, AO has confronted the google map to the assessee along with the notification. As per the google map, the distance between Govindapura and Bettahalasur Village is 6.8 kms. Therefore, the distance between the impugned agricultural land and the BBMP is less than 8 KM and Assessee is liable for long term capital gain on sale of its agricultural land. It was further contended that distance between the agricultural land and the municipal limit is only to be calculated by the Revenue authorities i.e., Tahsildar, etc., and not by the PWD officers. Therefore, the certificate given by the Assistant Engineer, PWD, is unreliable and no cognizance of the same can be taken in the light of the google map according to which distance between the impugned land and the BBMP limit can be measured. The learned DR further contended that if it appears that further verification of the facts are required, the matter may be sent to the AO for readjudiction of the issue.
Per contra, the learned counsel for the assessee has contended besides placing reliance upon the order of the CIT(A) that undisputedly the Revenue is the competent authority who can give a certificate with regard to the distance between the agricultural land and the municipal limit. After the completion of the assessment, the assessee has approached the Tahsildar for the issuance of certificate of distance between the impugned property i.e., the agricultural land and the municipal limit. The Tahsildar, instead of issuing the certificate, has directed Page 5 of 9 the assessee to approach the Assistant Executive Engineer, North Sub Division, PWD, Bangalore, who is competent to issue the same. Consequently, the assessee approached the Assistant Executive Engineer, North Sub Division, PWD, Bangalore and after making verification, he has issued the distance certificate according to which the distance between the BBMP border and the impugned property at Sy. No.337, Bettahalasur Village, Jala Hobli, Bangalore North Taluk, the impugned agricultural land is 8.10 kms. The learned counsel for the assessee has further placed reliance upon the judgment of the Hon’ble Punjab and Haryana High Courts (325 ITR 588) in which it has been held that the competent authority for issuing the distance certificate are revenue authorities. The learned counsel for the assessee further contended that in order to resolve the controversy with regard to the jurisdiction of the authorities for issuing the certificate, the assessee has approached the Assistant Executive Engineer, PWD, to verify whether they are competent to issue the distance certificate vide letter dated 18.09.2017. After the conclusion of the hearing of the appeal, in response to letter dated 18.09.2017, the Assistant Executive Engineer, PWD, responded to the assessee stating therein that the distance certificate is to be issued by the Department of Public Works and they are competent to issue the certificate. A copy of the letter written by the assessee in reply to PWD is filed before us. Therefore, assessee has placed the relevant evidence to demonstrate that distance between the municipal limit and the impugned agricultural land is more than 8 kms. There is no dispute with regard to the nature of land and since it was agricultural land, it is not a capital asset on which capital gain is to be charged.
Having carefully examined the orders of the authorities below and the documents placed before us, we find that during the course of assessment proceedings, AO has confronted the notification issued by the Urban Development Page 6 of 9 Department and the Google Map according to which the distance between the impugned land and the BBMP limit was shown as 6.8 kms. Relying upon this evidence, the AO has computed the long term capital gain on sale of agricultural land.
The assessee preferred an appeal before the CIT(A) with the submission that distance between the agricultural land and the municipal limit is more than 8 kms. Therefore, no capital gain is to be charged on transfer of agricultural land. In support of his contention, he has filed a certificate from the Assistant Executive Engineer, PWD, according to which the distance between the BBMP limit and the impugned agricultural land was 8.1 kms. The CIT(A) called for a remand report/comments from the AO, but he did not submit the report in time. The CIT(A), relying upon the certificate of the Assistant Executive Engineer, PWD, held that since the distance between the impugned agricultural land and the BBMP limit is more than 8 kms, therefore the agricultural land is a not a capital asset and therefore no gain is to be charged on transfer of agricultural land. During the course of hearing of the appeal, the learned DR has emphatically argued that the Assistant Executive Engineer, PWD, is not the competent authority who can issue distance certificate. The distance certificate can only be issued by the revenue authorities. Therefore, the certificate issued by the Assistant Executive Engineer, PWD, does not carry any weight.
During the course of hearing, a specific query was raised to learned counsel for the assessee to demonstrate whether the Assistant Executive Engineer, PWD, was competent authority for issuing the distance certificate between the municipal limit and the agricultural land, which was sold out. At the time of hearing of appeal, relevant evidence could not be filed and the hearing was concluded on Page 7 of 9 11.09.2017. During the course of pendency of appeal for dictation, the assessee has moved an application along with the evidence in support of his contention that the Assistant Executive Engineer, PWD, is the competent authority for issuing the distance certificate. On receipt of this application, the matter was refixed for hearing on 09.10.2017 and during the course of hearing, these evidences were confronted to the learned DR and the matter was reargued by both the parties. During the course of hearing, the learned counsel for the assessee has invited our attention to letter dated 22.04.2016 through which he has asked the Tahsildar for issuing the distance certificate. Along with this letter, the Tahsildar made an endorsement and made it clear that the distance certificate is to be issued by the Assistant Executive Engineer, PWD. Consequently, the assessee approached the Assistant Executive Engineer, PWD, for issuing the distance certificate. Thereafter, the distance certificate dated 01.06.2016 was issued by the Assistant Executive Engineer, PWD, in which it has been stated that distance between the BBMP limit and the impugned agricultural land bearing certificate Sy. No.337, Bettahalasur Village, Jala Hobli, Bangalore North Taluk is 8.10 Kms. After conclusion of the hearing, the assessee further approached the Assistant Executive Engineer, PWD, to issue certificate as to whether they are competent to issue the distance certificate. The Assistant Executive Engineer, PWD, vide letter dated 20.09.2017 has responded to the assessee stating therein that they are quite competent to issue a distance certificate. The relevant portion of the letter is extracted hereunder for the sake of reference:
“In the interest of Public at large, action will be initiated for issuance of Distance Certificate from the Department of Public Works. In this application also, as the Department has jurisdiction concerning to the Bangalore North Taluk, on your request, the same procedure is adopted and the Distance Certificate was issued. This is for your information.”
Page 8 of 9 10. On perusal of these documents, it has become abundantly clear that competent authority for issuing the distance certificate is the Assistant Executive Engineer, PWD, and according to the certificate issued by the Assistant Executive Engineer, PWD, the distance between the BBMP limit and the impugned agricultural land is more than 8 kms. Therefore, the impugned agricultural land is not a capital asset and no capital gain is to be charged on its transfer. We have also carefully examined the judgments referred to by the assessee in the case of CIT Vs. Lal Singh and others (325 ITR 588) in which it has been held that the competent authority for issuing distance certificate is the revenue authority. In the light of these facts and circumstances discussed above, we are of the view that the competent authority in this case is the Assistant Executive Engineer, PWD. Therefore, as per certificate issued by the Assistant Executive Engineer, PWD, the distance is more than 8 kms. Thus, on transfer of such agricultural land, no capital gain is to be charged. In the light of these discussions, we are of the view that CIT(A) has properly adjudicated the issue and no interference is called for. Accordingly, we confirm his order.
In the result, appeal of Revenue stands dismissed.
Pronounced in the open court on 13th October, 2017.