Case Law Details
Mohideen Sharif Inayathulla Sharif Vs ITO (ITAT Chennai)
Ground- The Ld. Commissioner of Income-tax (Appeals)-13, Chennai failed to independently apply his mind that the village in which this land is situated is more than 5 kilometers from the nearest municipal limits. A mere misstatement or confusion with regard to the identical name of 2 villages cannot form the basis for making an huge addition under the head Capital Gains under the surmise and suspicion that this village could be within 5 kilometers from the nearest municipal limits.
Upon careful consideration, the undisputed fact that emerges are that the assessee’s land is situated at Village No.92, Eachangaranai which is located near Sri Esani Angala Parameshwari Amman Temple and Avigna. The name of Village no. 92 has since been changed to No.94, Eachangaranai which is evidenced by certificate of VAO as placed on record. Another locality having similar name i.e., Eachankarania is located near Bethesda IPA Church. The Ld. AR has submitted that the land is situated near Avigna which is approx. 9.90 Kms from Chengalpattu Village in comparison to second Eachankarania which is very close to Chengalpattu. In support, the copy of Google map has been placed on record which shows that shortest route between these two points is 9.90 Kms. The exact location of the land is also certified in various certificates issued by Village Administrative Officer (VAO), the copies of which have been placed on record. Quite clearly, the assessee’s land is situated beyond 5 Kms since notification, as referred to by the assessee during appellate proceedings, has been accepted by Ld. CIT(A) and according to notification, the relevant area is 5 Kms. and not 8 Kms. Therefore, the assessee’s land could not be considered as non-agricultural land and the same would be out of ambit of ‘capital asset’ as defined in Sec.2(14). The fact that land continues to be agricultural land in revenue record could also not be controverted before us. This being the case, the assessment of capital gains, would have no legs to stands. By deleting the impugned additions, we allow the appeal.
FULL TEXT OF THE ORDER OF ITAT CHENNAI
1. Aforesaid appeal by assessee for Assessment Year (AY) 2011-12 arises out of the order of learned Commissioner of Income Tax (Appeals)-13, Chennai [CIT(A)] dated 27-02-2020 in the matter of assessment framed by Ld. Assessing Officer [AO] u/s.143(3) r.w.s. 147 of the Act on 27-12-2018. The grounds raised by the assessee read as under: –
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