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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Satbeer Singh Godara & Shri Amarjit Singh
Appellant by: ------ None ------ Respondent by: Smt. V. Swarnalatha, Sr. D.R. Date of Hearing: 13.08.2024 Date of Pronouncement: 25.09.2024 O R D E R Per Bench This assessee’s appeal for A.Y. 2012-13 arises against the National Faceless Appeal Centre, Delhi [CIT(A)]’s DIN & Order No. ITBA/ NFAC/S/250/2023- 24/1057138889(1) dated 17.10.2023 in proceedings u/s. 250 of the Income Tax Act, 1961 (the Act). Case called twice. None appears at assessee’s behest. We accordingly proceed exparte.
Coming to assessee’s sole substantive grievance that both the lower authorities herein have erred in law and on facts in assessing the long term capital gain amounting to Rs.1,9,41,345/- in his hands, the learned DR invited our attention to the CIT(A)’s detailed discussion confirming the assessment findings to this effect as follows: – “5.5 I have considered the assessment order, facts of the case and submissions of the appellant filed during the appeal proceedings. The appellant has claimed that during the F.Y. 2011-12, he sold an agricultural land (22.3 Cent) situated at Narikkuni Grama Panchayat of Kozhikode District which was purchased on 02/05/2007. The appellant has claimed that the land was used only for agricultural purposes for more than four years from the date of purchase to the date of sale. The appellant has produced the certificate from Village Officer Narikuni Village, the President Narikuni Grama Panchayat and two persons who are residing near to the plot of land certifying that the land was used for agricultural activities and stated that the same were filed before the AO also which were not considered by him. The appellant has claimed to have filed the certificate from the Tahsildar but on perusal of record, it is seen that the said certificate has not been filed. 5.6 The AO in assessment order has observed that as per fair value classification, the land was classified by the Revenue authorities as " commercially important" as per Government Notification and the value was fixed at Rs.3,60,000/- per Are. The AO has stressed on the fact that this classification enabled the purchaser to construct a commercial building in the above site immediately after the sale. On spot enquiry was also conducted by the AO confirming that the land sold was not utilized for agricultural purpose. The AO has specifically pointed out that physical characteristics of the land indicated non agricultural use and the surrounding and adjoining land were developed for commercial purposes and was not used for agricultural purpose and rightly classified by land revenue authorities as a 'land having commercial importance. Further, the land was registered adopting a value @ Rs. 3,60,000/- per are at Rs. 33,55,000/-. However, the appellant disclosed the sale consideration at Rs. 75,02,546/- in the return. i.e.@ of Rs.3.30 lacs per cent. The actual sale consideration later admitted by the appellant (subsequent to findings of the department) was at Rs.2,05,00,000/- which meant per cent value of Rs.9.19 lacs. The high centage value itself indicates that the land is non agricultural and purchase is for non-agricultural purpose. 5.7 The decision of the Hon'ble High Court of Delhi in the case of CIT vs Sri Vijay Singh Kadan dated 14.09.2015 quoted by the appellant does not support the present case as the order of the Hon'ble High Court speaks only about the measurement of the distance of agricultural land from the outer limit of the municipality. However, in the present case, the land was classified by the Revenue authorities under "commercially important". 5.8 It is further pertinent to note that the appellant in his ITR for the year under consideration has himself claimed exemption u/s 54F of the Act on the sale of the said property/land treating it as 'Capital Asset'. It is only during the scrutiny proceedings, on finding by the AO that the sale consideration is not Rs. 75,02,546/- but Rs.2,02,55,545/- and on questioning of the correctness of the exemption u/s 54F claimed by the appellant by the AO, the appellant raised a new claim that the said land is an agricultural land. 5.9 I have perused the certificates filed by the appellant from the Village Officer Narikuni Village, the President Narikuni Grama Panchayat and two persons from nearby locality. The said documents do not carry much evidentiary value as they are not from the revenue records of the state. They are simply statements of these persons. The purchase bill of manure etc. also do not conclusively prove that they pertain to which land. In this backdrop,
considering the entire sequence of events clubbed with the fact that on spot enquiries conducted by the department confirmed the land not being used for agricultural purposes, non- production of Khasra/Jamabandi (Revenue Record) confirming the cultivation of the said land, non-filing of certificate from Tehsildaar, the land being developed for commercial purposes by the purchaser, under statement of sale consideration by the appellant in his ITR and non-consistent claim of the appellant in treatment of the said land, it is held that the subject land is not an agricultural land but capital asset liable for Capital Gains tax. Accordingly, the addition of Rs. 2,02,55,545/- is upheld. The ground of appeal is dismissed.”
3. Learned DR vehemently submits in light of the above extracted lower appellate detailed discussion that the impugned long term capital gain addition has been rightly made in assessee’s hands. We sought to know the clinching fact as to whether the assessee’s land transferred in the relevant previous year forms a capital asset u/s. 2(14) of the Act or not. Learned DR submits in light of the CIT(A)’s detailed discussion in para 5.6 that the Revenue authorities has classified assessee’s land as “commercial land”.
4. We are afraid that merely because of the fact that the land is situated near by some civic amenities or having potential of getting developed in commercial terms would not make it a capital asset as section 2(14) of the Act is a self exhaustive code for determining the nature of the asset sold or transferred in the relevant previous year. We thus deem it fit appropriate in these facts and circumstances that the Assessing Officer needs to reexamine the entire issue afresh as per law preferably within three effective opportunities. Ordered accordingly.