Shri Dashratbhai Gopalbhai Patel,, Ahmedabad v. The Income Tax Officer, Ward-2(2)(1),, Ahmedabad

ITA 1356/AHD/2017 | 2012-2013
Pronouncement Date: 31-08-2021 | Result: Allowed

Appeal Details

RSA Number 135620514 RSA 2017
Assessee PAN ASXPP5053B
Bench Ahmedabad
Appeal Number ITA 1356/AHD/2017
Duration Of Justice 4 year(s) 2 month(s) 25 day(s)
Appellant Shri Dashratbhai Gopalbhai Patel,, Ahmedabad
Respondent The Income Tax Officer, Ward-2(2)(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-08-2021
Last Hearing Date 25-02-2021
First Hearing Date 20-07-2021
Assessment Year 2012-2013
Appeal Filed On 05-06-2017
Judgment Text
C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD ( CONVENED THROUGH VIRTUAL COURT ) BEFORE SHRI PRADIP KUMAR KEDIA ACCOUNTANT MEMBER & SMT. MADHUMITA ROY JUDICIAL MEMBER I.T.A. NO. 1356/AHD/2017 ( ASSESSMENT YEAR : 2012-13) SHRI DASHRATBHAI GOPALBHAI PATEL 291 SUKAN PALACE-2 BESIDES HETARTH PARTY PLOT SCIENCE CITY ROAD SOLA AHMEDABAD-380060 OR C/O. M/S. BHATI & ASSOCIATES A-902 TITANIUM SQUARE THALTEJ CROSS ROADS S. G. HIGHWAY AHMEDABAD - 380054 / VS. THE INCOME TAX OFFICER CIRCLE -2(2)(1) 1 ST FLOOR C. U. SHAH BUILDING ASHRAM ROAD AHMEDABAD - 380014 / / PAN/GIR NO. : ASXPP5053B ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI U. S. BHATI A.R. / RESPONDENT BY : SHRI L. P. JAIN SR.D.R. DATE OF HEARING 20/07/2021 !'# / DATE OF PRONOUNCEMENT 31/08/2021 ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 2 - / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-10 AHMEDABAD (CIT(A) IN SHORT) DATED 29.03.2017 ARISING IN THE ASSESSMENT ORDER DATED 23.03.2015 PA SSED BY THE ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT 1961 (THE ACT) CONCERNING AY 2012-13. 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE READ AS UNDER: 1.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELL ANT. 2.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) ERRED IN LAW AND ON FACTS IN TREATING THE AGRICULTURE LAND BEARI NG SURVEY NO. 361/1 362 BLOCK NO.474 IN VILLAGE ADALAJ DISTRICT GANDHINAGAR AS A CAPITAL ASSET U/S 2(14)(III) (A) AS WELL AS U/ S 2(14)(III) (B) OF THE INCOME TAX ACT 1961. 3.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) FURTHER ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.1 33 25 071/- MADE BY THE LD. A.O. AS LONG TERM CAPITAL GAIN. 4.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. A.O. W HEREBY THE EXEMPTION CLAIMED U/S 54B HAS BEEN RESTRICTED TO RS .20 00 000/- INSTEAD OF RS.2 11 00 000/-. 3. BRIEFLY STATED THE ASSESSEE IN ITS RETURN OF IN COME FOR A.Y. 2012-13 INTER ALIA DECLARED LONG TERM CAPITAL GAINS OF RS.1 33 25 071 /- ON SALE OF CERTAIN LAND PARCELS AT ADALAJ GUJARAT. THE ASSESSEE CLAIMED DEDUCTION UNDER S.54B OF THE ACT TO THE EXT ENT OF AFORESAID LONG TERM CAPITAL GAIN BY WAY OF PURCHASE OF ANOTHE R LAND AT KHORAJ FOR A CONSIDERATION OF RS.2 11 00 000/-. CONSEQUEN TLY THE TAXABLE CAPITAL GAIN WAS SHOWN AT NIL IN THE RETURN OF INCO ME. WHILE FRAMING THE ASSESSMENT UNDER S.143(3) OF THE ACT THE AO HE LD THAT THE CAPITAL GAINS ON SALE OF AGRICULTURAL LAND ARISING TO THE A SSESSEE FALLS WITHIN ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 3 - THE DEFINITION OF CAPITAL ASSET UNDER S.2(14)(III) OF THE ACT FOR THE REASON THAT THE LAND PARCEL GIVING RISE TO CAPITAL GAINS IS SITUATED IN AN AREA WHICH IS COMPRISED WITHIN THE MUNICIPALITY AND SUCH AGRICULTURAL LAND FALLS WITHIN THE DISTANCE NOT BEING MORE 8 KIL OMETERS FROM THE LOCAL LIMITS OF MUNICIPALITY/CONTENTMENT BOARDS. T HE AO ACCORDINGLY HELD THAT CAPITAL GAINS ARISING ON SALE OF AGRICULT URAL LAND SITUATED WITHIN THE MUNICIPAL LIMITS ARE NOT EXCLUDED FROM T HE DEFINITION OF CAPITAL ASSET AND IS THUS CHARGEABLE TO TAX. FUR THER THE EXEMPTION CLAIMED BY THE ASSESSEE UNDER S.54B OF THE ACT TO T HE TUNE OF RS.2 11 00 000/- WAS RESTRICTED TO RS.20 LAKHS ON T HE BASIS OF ACTUAL PAYMENTS MADE BY THE ASSESSEE AGAINST THE AGREED CO NSIDERATION. 4. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 5. THE CIT(A) HOWEVER DID NOT FIND MERIT IN THE P LEA RAISED ON BEHALF OF THE ASSESSEE FOR EXCLUSION OF THE AGRICUL TURAL LAND FROM THE DEFINITION OF CAPITAL ASSET. THE CIT(A) ALSO END ORSED THE ACTION OF THE AO IN RESTRICTING THE EXEMPTION TO THE EXTENT O F RS.20 LAKHS STATED TO BE INVESTED BY THE ASSESSEE FOR PURCHASE OF ANOT HER AGRICULTURAL LAND. 6. FURTHER AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL. 7. IN THE COURSE OF HEARING THE LEARNED COUNSEL FO R THE ASSESSEE MADE EXTENSIVE ARGUMENTS TO SUPPORT ITS PLEA THAT T HE AGRICULTURAL LAND PARCEL SITUATED AT ADALAJ DID NOT FALL WITHIN 8 KIL OMETERS OF THE MUNICIPAL LIMITS IN THE PECULIAR FACT SITUATION AND CONSEQUENTLY THE LAND IN QUESTION WAS CLAIMED TO BE OUTSIDE THE SCOP E AND AMBIT OF SECTION 2(14) OF THE ACT. IT WAS THUS ARGUED THAT THE LAND NOT BEING A CAPITAL ASSET IS NOT CHARGEABLE TO CAPITAL GAIN A RISING ON SALE THEREOF. WE SHALL DEAL WITH VARIOUS PLEA AT APPROPRIATE PLAC E IN SUCCEEDING PARAGRAPHS. ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 4 - 8. THE LEARNED DR FOR THE REVENUE MAINLY RELIED UPO N THE ORDER OF THE CIT(A). 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE MATE RIAL REFERRED TO IN TERMS OF RULE 18(6) OF THE ITAT RULES 1963 AND ALS O CASE LAWS CITED. THE PRINCIPLE QUESTION THAT ARISES IN THE INSTANT C ASE IS WHETHER THE AGRICULTURAL LAND PARCEL IN QUESTION SITUATED AT VI LLAGE ADALAJ GUJARAT FALLS WITHIN THE DEFINITION OF CAPITAL ASSET UNDE R S.2(14) OF THE ACT FOR THE PURPOSES OF CHARGEABILITY OF CAPITAL GAINS ON SALE THEREOF OR NOT. THE OTHER QUESTION RELATES TO QUANTIFICATION OF CAPITAL GAINS UNDER S.54B OF THE ACT IN THE EVENT OF THE CAPITAL GAIN A RISING ON SALE OF ADALAJ LAND IS FOUND CHARGEABLE TO TAX. 10. THE KEY POINTS RAISED ON BEHALF OF THE ASSESSEE TO DEFEND THE STANCE OF THE ASSESSEE THAT THE AGRICULTURAL LAND S OLD GIVING RISE TO CAPITAL GAINS DOES NOT FALL WITHIN THE PURVIEW OF D EFINITION OF CAPITAL ASSET AND CONSEQUENTLY NOT CHARGEABLE CAPITAL GAIN TAX ARE LISTED HEREUNDER: (A) IT IS ADMITTED FACT THAT THE IMPUGNED LAND AT S URVEY NO.361/LM 362 BLOCK NO.474 VILLAGE ADALAJ (SOLD ON 17.06.201 1) WAS AN 'AGRICULTURE LAND BECAUSE THE ABOVE FACT IS NEITHE R DISPUTED BY THE ID. A.O NOR BY THE LD. CIT(A). IT IS ALSO ADMITTED THA T ADALAJ IS A VILLAGE ADMINISTERED BY THE/GRAM PANCHAYAT AND NOT BY ANY ' MUNICIPALITY ETC. (B) THE FINAL FIGURES OF CENSUS 2011 WERE NOT PUBLI SHED BEFORE 1ST APRIL 2011. IN VIEW OF THE ABOVE THE POPULATION O F VILLAGE ADALAJ AS PER DATA LAST PUBLISHED AS PER THE CENSUS OF 2001 W ERE LESS THAN 10 000. MOREOVER ADALAJ IS A VILLAGE NOT HAVING 'MUNICIPAL ITY' OR 'MUNICIPAL CORPORATION' AND THEREFORE THE SUB-CLAUSE (A) OF SE CTION 2(14)(III) WOULD NOT BE APPLICABLE IN VIEW OF THE DECISIONS IN THE F OLLOWING CASES:- (A) CIT V/S P.J. THOMAS (1995) 211 ITR 897 (B) SRICHAND DEMBLA V/S DCIT 39 TAXMANN.COM 180 (JO DH-TRIB.) (C) ITO V/S UPPALA BHKTAVATSALA RAO 12 TAXMANN 40 ( HVD-TRIB.) (C) THE GANDHINAGAR URBAN DEVELOPMENT AUTHORITY (GU DA) WAS CREATED ON 12.03.1996 UNDER 'THE GUJARAT TOWN PLANN ING & URBAN DEVELOPMENT ACT 1976' WITH A VIEW TO CARRY OUT SUS TAINED PLANNED DEVELOPMENT OF THE AREA FALLING OUTSIDE THE PERIPHE RY OF GANDHINAGAR NOTIFIED AREA. A MUNICIPALITY OR MUNICIPAL CORPORAT ION IS ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 5 - CONSTITUTIONAL BODY WHILE A DEVELOPMENT AUTHORITY IS A CREATION OF STATUTE. THE ROLE OF MUNICIPALITY OR MUNICIPAL CORP ORATION IS ALL- TOGETHER DIFFERENT FROM DEVELOPMENT AUTHORITY. GUDA DOES NOT HAVE ELECTED REPRESENTATIVES BUT ONLY NOMINATED REPRESEN TATIVES BY THE GOVERNMENT FURTHER IT DOES NOT PROVIDE CIVIC AMENIT IES ETC. MOREOVER IT DOES NOT HAVE POWER TO LEVY TAXES. LATER ON 16. 03.2010 CONSEQUENT TO THE JUDGMENT DELIVERED BY THE HON'BLE GUJARAT HI GH COURT IN 2009 AN ELECTED BODY ADMINISTRATING GANDHINAGAR WAS SET UP AS 'GANDHINAGAR MUNICIPAL CORPORATION'. SIMILARLY AHMEDABAD URBAN DEVELOPMENT AUTHORITY (AUDA) IS ALSO NOT TERMED AS 'MUNICIPALIT Y' OR 'MUNICIPALITY CORPORATION'. IT IS HELD BY HON'BLE KERALA HIGH COU RT IN THE CASE OF CIT V/S MURALI LODGE 194 ITR 125 (KER) THAT ONLY THOSE LOCAL AUTHORITIES TOWNSHIP ETC. CAN BE TREATED AS MUNICIPALITY WITHI N MEANING OF SECTION 2(14)(III)(A) WHICH SATISFY THE REQUIREMENTS OF A M UNICIPALITY WITHIN THE MEANING OF RELEVANT MUNICIPAL ACT. IT IS HELD IN FO LLOWING JUDGEMENTS THAT A DEVELOPMENT AUTHORITY IS NOT A MUNICIPALITY: - (A) SMT. T. URMILA V/S ITO (2012) 34 CCH 0477 H VDTRIB & (B) ITO V/S SHRI ADELA KRISHNA REDDY [ITA NO.L83 8/HVD/2013] (D) THE PROVISION REGARDING MEASUREMENT OF DISTANCE 'AERIALLY HAS BEEN INTRODUCED FOR THE FIRST TIME BY THE FINANCE A CT 2013 W.E.F 01.04.20L5 ONLY. THUS IN THIS CASE THE DISTANCE B ETWEEN THE IMPUGNED LAND 'MUNICIPALITY' OR 'MUNICIPAL CORPORATION' MUST BE MEASURED VIA THE SHORTEST ROAD DISTANCE. RELIANCE IS PLACED IN THE C ASE OF CIT(A) V/S NITISH RAMESHCHANDRA CHORDIA (2015) 374 ITR 531 (BO M) & ITO V/S AKASH DEEP FARMS P. LTD. 2016 (9) TMI 918-ITAT AHME DABAD. (E) FOR THE PURPOSE OF SUB-CLAUSE (B) OF SECTION 2( 14)(III) THE DISTANCE OF 8 KMS. FROM THE 'MUNICIPALITY' OR 'MUNI CIPAL CORPORATION' HAS TO BE SEEN AS ON THE DATE OF NOTIFICATION NO. [ SO 9447] [FILENO.L64/3/87-ITA.L] DATED 06.01.1994 I.E. 06.01 .1994 AS PER EXPLANATION (2) TO THE ABOVE NOTIFICATION. MOREOVER THE FOLLOWING DECISIONS ALSO SUPPORT THE ABOVE VIEW:- (A) PR CIT V/S KHETILAL SHARMA (HUF) 2017 (11) TMI 1651 -RAJ HC (B) ITO V/S AKASH DEEP FARMS P. LTD 2016 (9) TMI 9 18-ITAT AHD (F) IN VIEW OF THE ABOVE PROPOSITIONS IT IS EVIDEN T THAT THE IMPUGNED LAND IS NOT A 'CAPITAL ASSET' BEING NOT A LAND WHIC H FALLS IN EITHER SUB- CLAUSE (A) OR (B) OF SECTION 2(14)(III) OF THE INCO ME TAX ACT 1961. (G) MOREOVER IN THE CASE OF ONE OF THE CO-OWNERS S HRI GABHAJI SOMAJI THAKUR (L/3 RD SHARE) THE LD. CIT(A) GANDHINAGAR VIDE HIS ORDER DATED 18.01.2019 HAS HELD THAT THE IMPUGNED LAND IS NOT A 'CAPITAL ASSET' WITHIN MEANING OF SECTION 2(14) OF THE ACT. 11. WE STRAIGHTWAY NOTICE THAT THE CIT(A) GANDHINA GAR IN THE CASE OF OTHER CO-OWNER SHRI GABHAJI SOMAJI THAKUR (L/3 RD SHARE) HAS GIVEN A REASONED ORDER AND HELD THAT IMPUGNED LAND IS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT AND CONSEQUENTLY NOT ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 6 - SUSCEPTIBLE TO CAPITAL GAIN TAX. THE RELEVANT PARA OF THE CIT(A) IN THE CASE OF SHRI GABHAJI SOMAJI THAKUR (SUPRA) IS REPRO DUCED HEREUNDER: 5.2 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER AND SUBMISSION FILED BY APPELLANT. THE BRIEF FACTS OF PRESENT CASE ARE THAT APPELLANT ALONGWITH CO-OWNERS HAD SOLD LAND AT ADALAJ DIST. GANDHINAGAR FOR RS.4 12 50 000/- AND CLAIMED THAT SUCH LAND IS AGRI CULTURAL LAND SITUATED BEYOND 4 KMS FROM GANDHINAGAR MUNICIPAL CO RPORATION (CMC). THE AO HAS TAXED GAIN ARISING ON SALE OF ABO VE LAND AS INCOME FROM LONG TERM CAPITAL GAIN AND AGRICULTURAL LAND E XIGIBLE TO CAPITAL GAINS TAX MAINLY ON THE REASON THAT LAND SOLD WAS T RANSFERRED FROM CATEGORY OF 'NEW CONDITION' TO 'ONLY AGRICULTURE PU RPOSE AND ELIGIBLE FOR PREMIUM' AND ALSO GATHERED THAT THE POPULATION OF V ILLAGE ADALAJ WAS 11 957 PEOPLE AS WAS GATHERED FROM TAIATI-CUM-MANTR I U/S 133(6) OF THE ACT. ON THIS BASIS THE AO CONCLUDED THAT LAND SOLD BY APPELLANT IS NOT A CAPITAL ASSET THUS THE AO HAS TAXED INCOME F ROM LONG TERM CAPITAL GAIN OF RS. 1 33 33 645/-. ON THE OTHER HAN D THE APPELLANT HAS REFERRED TO PROVISIONS OF SECTION 2(14)(III) OF THE ACT AND STATED THAT CBDT HAS ISSUED NOTIFICATION NO. 9447 DATED 6TH JAN UARY 1994 SPECIFYING THE LIMIT OF 4 KMS OF GANDHINAGAR MUNICI PAL CORPORATION. THE CASE OF THE APPELLANT IS SQUARELY COVERED BY TH E DECISION OF HYDERABAD TRIBUNAL IN CASE OF ADELA KRISHNA REDDY V IDE ITA NO: 1838/HYD/2013 DATED 29/06/2016 AS UNDER: CAPITAL ASSETAGRICULTURAL LANDASSESSEE FILED HIS RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.5 05 620AO COM PLETED ASSESSMENT BY DETERMINING TAXABLE INCOME OF ASSESSE S AT RS.76 12 500ASSESSING OFFICER CONSIDERED HADA AS G OVT. NOTIFIED LOCAL AUTHORITY AND CONCLUDED THAT IT WAS MUNICIPALITY WITHIN MEANING OF SECTION 2(14)(III)(A)AO HELD THA T LAND SOLD BY ASSESSEE WAS NOT IN NATURE OF AGRICULTURAL LAND AND ASSESSES FELL WITHIN CAPITAL ASSET AS DEFINED U/S 2(14)(III) CIT(A) HELD THAT LAND SOLD BY ASSESSES DID NOT FALL WITHIN SUCH DISTANCE OF NOT BANG MORE THAN 8 KM FROM LOCAL LIMIT OF ANY MUNICIP ALITY OR CANTONMENT BOARD AS REFERRED TO IN SUB-CLAUSE(B) OF SECTION 2(14)(III) AS LANDS COVERED UNDER HADA WERE MORE TH AN 21 KMS FROM MUNICIPAL AREAS CIT (A) ALLOWED RELIEF TO ASSESSEE DECLARING SAID LAND AS AGRICULTURAL LAND AND THAT T HEY DID NOT FALL WITHIN CAPITAL ASSET AS DEFINED U/S 2(14)(III) HELD IT WAS IN RECORD THAT LAND SOLD BY ASSESSEE ALSO DID NOT F ALL WITHIN SUCH DISTANCE OF NOT BEING MORE THAN 8 KMS FROM LOC AL LIMIT OF ANY MUNICIPALITY OR CANTONMENT RATHER LANDS COVERED UNDER HADA WERE MORE THAN 21 KMS FROM MUNICIPAL AREAS I E. GHMC OF HYDERABAD IN CASE OF T. URMILA IN SIMILAR ISSUE TRIBUNAL HELD THAT HADA WAS NOT LOCAL BODY AND LANDS WITHIN HADA WAS NOT CAPITAL ASSET U/S 2(14)(III) IN ASSESSEE'S CASE LAND SOLD BY ASSESSEE WAS WITHIN HADA AND THEREFORE CHARACTER OF LAND WAS AGRICULTURAL LANDITAT DID NOT SEE ANY REASON TO INTERFERE WITH ORDER OF CIT (A)REVENUE'S APPEAL DI SMISSED. IT IS OBSERVED THAT THE NOTIFICATION NO SO: 9447 DA TED 06/01/1994 ISSUED BY THE CENTRAL GOVERNMENT SPECIFI CALLY PROVIDES FOR MEASURING THE DISTANCE OF PARTICULAR LAND FROM MUNI CIPAL CORPORATION ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 7 - LIMIT AND ACCORDINGLY IT IS HELD THAT THE RELIANCE OF AO ON THE CERTIFICATE OF AUDA IS JUSTIFIED. FURTHER IT IS ALSO OBSERVED THAT DISTANCE OF PARTI CULAR LAND IS TO BE 'MEASURED FROM THE DATE OF NOTIFICATION NO: 9447 DATED 06/01/1994 AND EVEN CONSIDERING SUCH FACT THAT DISTANCE BETWEE N GANDHINAGAR MUNICIPAL CORPORATION TO ADALAJ IS BEYOND 4 KMS AND ACCORDINGLY THE APPELLANT HAS CORRECTLY CLAIMED CAPITAL GAMMON SALE OF LAND AS EXEMPT U/S 2(14)(III) OF THE ACT. THE CASE OF THE APPELLAN T IS SQUARELY COVERED BY THE DECISION OF HON'BLE AHMEDABAD TRIBUNAL IN CA SE OF AKASH DEEP FARM PVT LTD VIDE ITA NO: 2138/AHD/2012 DATED 11/08 /2015 AS UNDER: 10. NEXT OBJECTION OF THE AO WAS THAT THE STATE GOV ERNMENT HAS ENHANCED THE MUNICIPAL LIMIT IN 2006 AND THE DISTAN CE IS TO BE MEASURED FROM NEW BOUNDARY OF THE AHMEDABAD MUNICIP AL CORPORATION LIMIT AMC LIMIT WAS EXTENDED UPTO SARK HEJ SINCE 2006. THE LD.CIT(A) HAS EXAMINED THIS ASPECT AND H AS OBSERVED THAT PERUSAL OF SUB-CLAUSE (B) OF SECTION 2(13)(III ) WOULD INDICATE THAT THE MUNICIPAL LIMIT IS TO BE TAKEN FROM THE AR EA WHICH HAS BEEN NOTIFIED BY THE CENTRAL GOVERNMENT IN ITS GAZE TTE NOTIFICATION. CENTRAL GOVERNMENT HAS NOTIFIED THE A REA ON 6.1.1993 AND FROM THAT NOTIFICATION THE AGRICULTU RE LAND OF THE ITA NO.2564 AND 2138/AHD/2012 ASSESSEE WAS SITUATED BEYOND A DISTANCE OF 8KMS. THIS ASPECT HAS BEEN LUCIDLY CONS IDERED BY THE LD. CIT(A) IN THE FINDING EXTRACTED SUPRA. WE DO NO T SEE ANY REASON TO INTERFERE IN THIS FINDING. IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. IT IS DISMISSED. THE AO HAS CONTENDED THAT THE LAND WAS SITUATED WIT HIN 100 MTRS FROM ZUNDAL CIRCLE OF AMC LIMIT AND FROM ZUNDAL CIR CLE TO ADALAJ IS 5.66 KMS. 8 KMS FROM MUNICIPAL LIMIT OF AHMEDABAD A ND THEREFORE GAIN IS TAXABLE AS LONG TERM CAPITAL GAIN. ON THE OTHER HAND APPELLANT HAS REFERRED TO NOTIFICATION NO 9447 DATED 06/11/1994 W HEREIN DISTANCE OF AREA FALLING OUTSIDE LOCAL LIMIT OF GANDHINAGAR MUN ICIPALITY HENCE ARGUED THAT LAND IS BEYOND THE PRESCRIBED MUNICIPAL LIMIT AND NOT LIABLE FOR CAPITAL GAIN. ON CAREFUL CONSIDERATION OF ENTIRE FACTS ALONG WITH CIRCULAR REFERRED BY THE APPELLANT IT IS OBSERVED THAT FOR THE PURPOSE OF SECTION 2(14) DISTANCE OF LAND FROM GANDHINAGAR MUNICIPALI TY IS MORE THAN 5 KMS AND FALLING IN THE GANDHINAGAR DISTRICT AND NOT AHMEDABAD DISTRICT AS HELD BY THE AO IN THE ASSESSMENT ORDER. THE APPE LLANT HAS ALSO SUBMITTED A CERTIFICATE FROM THE OFFICE OF THE DIST RICT INSPECTOR LAND RECORDS GANDHINAGAR WHEREIN IT IS STATED THAT ABOV E LAND IS SITUATED AT 5017 METERS FROM MUNICIPAL LIMIT OF GANDHINAGAR WHI CH SUPPORTS THE CONTENTION OF THE APPELLANT THAT THE LAND IS BEYOND 4 KMS FROM THE LIMITS OF GANDHINAGAR MUNICIPAL CORPORATION. FROM THE ABOV E IT CAN BE CONCLUDED THAT THE LAND IN QUESTION IS SITUATED 5.0 17 KMS FROM THE GANDHINAGAR MUNICIPALITY LIMIT AND POPULATION OF AD ALAJ IS 9776 PEOPLE AS PER LAST CENSUS CONDUCTED IN 2001 HENCE GAIN ON SALE OF LAND IS NOT LIABLE FOR TAXATION U/S 2(14) OF THE AC T. THEREFORE IT IS HELD THAT THE AO IS NOT JUSTIFIED IN TREATING THE GAIN ON SALE OF LAND AS TAXABLE LONG TERM CAPITAL G AIN. THE LAND IS ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 8 - AGRICULTURE LAND WITHIN THE DEFINITION OF SECTION 2 (14) OF THE ACT AND THEREFORE THE ADDITION MADE BY THE AO OF RS.1 33 3 3 645/- IS DIRECTED TO BE DELETED . NEEDLESS TO SAY THE STANCE OF THE REVENUE HAS TO B E CONSISTENT IN THE SAME LIS . THE ORDER OF THE CIT(A) IN THE CASE OF OTHER CO- OWNER OF THE IMPUGNED LAND SHRI GABHAJI SOMAJI THAKUR IN NOT UND ER CHALLENGE. THEREFORE THE VIEW TAKEN IN THE CASE OF OTHER CO-O WNER HAS ATTAINED FINALITY AND OUGHT TO HAVE BEEN FOLLOWED AS A MATTE R OF JUDICIAL DISCIPLINE. THE REVENUE CANNOT BE PERMITTED TO TAK E DIFFERENT STAND IN TWO DIFFERENT CASES EMANATING FROM SAME SET OF FACT S. THE CASE OF THE ASSESSEE FOR EXCLUSION OF AGRICULTURAL LAND FROM TH E DEFINITION OF CAPITAL ASSET PLACED IN IDENTICAL FACTUAL MATRIX THUS REQUIRES TO BE UPHELD ON THIS GROUND ALONE. 12. MOVING FURTHER ON MERITS WE FIND THAT THE ASSE SSEE HAS SUCCESSFULLY DEMONSTRATED THAT THE LAND PARCELS SIT UATED AS ADALAJ DOES NOT FALL WITHIN THE MEANING OF EXPRESSION MUNICIPA LITY OR MUNICIPAL CORPORATION AND THEREFORE FALLS IN EXCEPTION PROVI DED IN SUB-CLAUSE (A) TO SECTION 2(14)(III) OF THE ACT. AS STATED ON BEHALF OF ASSESSEE THE DEVELOPMENT AUTHORITY I.E. GUDA IS A CREATION O F STATUTE. IT CANNOT BE EQUATED WITH MUNICIPAL CORPORATION IN THE LIGHT OF THE RATIO OF DECISIONS OF HONBLE KERALA HIGH COURT IN THE CA SE OF MURALI LDGE (SUPRA) AND SMT. T. URMILA (SUPRA) AS RIGHTLY POINTED OUT ON BEHALF OF THE ASSESSEE. THE PROVISIONS REGARDING AERIAL MEAS UREMENT OF DISTANCE IS APPLICABLE PROSPECTIVELY AFTER THE AMENDMENT BY WAY OF FINANCE ACT 2013. WE ALSO TAKE AFFIRMATIVE NOTE OF THE SI GNIFICANT PLEA ON BEHALF OF THE ASSESSEE THAT DISTANCE OF 8 KMS. FROM THE MUNICIPALITY HAS TO BE SEEN FROM THE DATE OF NOTIFICATION DATED 06.11.1994 IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS QUOTED ABOVE. 13. HENCE ON OBJECTIVE ANALYSIS OF THE FACTS AND L AW ENUNCIATED BY THE JUDICIAL PRONOUNCEMENTS WE FIND THAT IMPUGNED LAND FALLS OUTSIDE THE AMBIT OF DEFINITION OF CAPITAL ASSET PROVIDED I N SECTION 2(14) OF ITA NO. 1356/AHD/17 [SHRI DASHRATBHAI G. PATEL VS. ITO] A.Y. 2012-13 - 9 - THE ACT. CONSEQUENTLY THE CAPITAL GAINS ARISING ON SALE OF AGRICULTURAL LAND WHICH IS NOT A CAPITAL ASSET CANN OT BE BROUGHT TO CHARGE UNDER S.45 OF THE ACT. WE THUS FIND MERIT I N THE PLEA OF THE ASSESSEE FOR EXEMPTION OF CAPITAL RECEIPT FROM AMBI T OF TAXATION. 14. ONCE IT IS FOUND THAT THE CAPITAL GAINS ARISIN G FROM SALE OF AGRICULTURAL LAND ITSELF IS NOT SUSCEPTIBLE TO CHAR GEABILITY THE CLAIM OF DEDUCTION UNDER S.54B BECOMES INFRUCTUOUS AND THERE FORE NOT ADJUDICATED UPON. 15. AS A CONSEQUENCE APPEAL OF THE ASSESSEE IS ALL OWABLE BOTH ON MERITS AS WELL AS ON THE GROUNDS OF DOCTRINE OF CON SISTENCY. THE ORDER OF THE CIT(A) IS ACCORDINGLY SET ASIDE AND ADDITION S MADE BY THE AO ON THIS SCORE IS QUASHED. 16. IN THE RESULT THE CAPTIONED APPEAL OF THE ASSE SSEE IS ALLOWED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT ME MBER AHMEDABAD: DATED 31/08/2021 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ / CONCERNED CIT 4 - / CIT (A) / 012 33*+4 *+#4 56) / DR ITAT AHMEDABAD 7 289 / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER PRONOUNCED ON 31/08/2021