Gurdeep Singn v. Principal Commissioner Of Income Tax

IN THE HIGH COURT OF PUNJAB & HARYANA ATCHANDIGARH ITA No.143 of 2018(O0&M) Date of decision :2.11.2018 Gurdeep Singn ..... Appellant Versus Principal Commissioner of Income Tax .... Respondent CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.HON'BLE MRS. JUSTICE MANJARI NEHRU KAULPresent: Mr.Divya Suri, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1.The assessee Nas approached this Court under|Section 260A of the Income Tax Act, 1961 (in short, the Act’)against the order dated 10.11.2017, Annexure A3, passed by the Income Tax Appellate Tribunal, Chandigarn Bencn A, Chandigarh (in short, the Tribunal’), in ITA No.694/CHD/2017, for the assessment year 2013-14, claiming the _ followinsubstantial questions of law:- A.Whetner the Hon’bie Income Tax AppellateTribunal has erred both in law and on facts in.upholding the decision of Commission IncomeTax (Appeals) where the Id. Commissioner | =)= Income Tax (Appeals) has treated the sale of.agriculture land as long term capital gain tax.and made an addition of~/7,95,/60/- to thereturned income tax of the assessee. RBWhetner the Honble Income Tax Appellate.Tribunal has erred both in law and on facts In.upholding the decision of Commissioner Income ©Tax (Appeals) and treating the agricultural land. situatedInrural|aredapproximately4kilometresawayfrom outerlimitsof|municipality as capital asset in terms of section2(14(1i|) of the Income Tax Act, 1961. C. Whether the Hon’ble Income Tax AppellateTribunal,|ld.CommissionerIncomeTax.(Appeals) and the Assessing Officer all navewrongly ignored the report of Naib Tenhsildar ofThanesar, DIStrictKurukshetrawho.NasSpecifically stated that the land in question is.rural in nature. 2.The facts as projected by the assessee in the present|appeal are that he declared his dividend income of.<2, Q000/-agricultural Income of 15 lakns, besides the income of | ITA No.143 of 2018(0&M) <1,92,3/0/-from otner sources for the assessment year 2013-14ne Assessing Officer found that the property falls within 4kilometres OT the.municipallimitand,|therefore,vide.assessment order dated 24.2.2016, Annexure A.1, he chargedthe sale of the land to long term capital gains tax and aaded~//7,95,760/- to the returned Income of the assessee. The.aforesaid order was subject matter of challenge before theCommissioner of Income Tax (Appeals) Lin short, the CIT(A)| whoalso dismissed the appeal vide order dated 20.3.2017, AnnexureA.2. Even the further appeal before the Tribunal was alsoaismissed vide order dated 10.11.2017, which Is subject matterof challenge before this Court. | 3.Learned counsel for the appellant submitted that theproperty sold on 16.7.2012 for consideration of ~87,50,000/-Situated in village Wazidpur near Thanesar City, DistrictKurukshetra Is agricultural land and falls out of the municipallimit. However, this fact nas not been considered by the.authorities below while adjudicating the controversy In dispute.Even under the provisions of Section 2(14) of the Act theagricultural land is excluded from the scope of definition of theCapital asset. aWe nave heard the learned counsel for the appellant.and perused the paper book.| ITA No.143 of 2018(0&M) 3.Learned counsel for the appellant submitted that theproperty sold on 16.7.2012 for consideration of ~87,50,000/-Situated in village Wazidpur near Thanesar City, DistrictKurukshetra Is agricultural land and falls out of the municipallimit. However, this fact nas not been considered by the.authorities below while adjudicating the controversy In dispute.Even under the provisions of Section 2(14) of the Act theagricultural land is excluded from the scope of definition of theCapital asset. aWe nave heard the learned counsel for the appellant.and perused the paper book.| ITA No.143 of 2018(0&M) 5.A perusal of the records snows that the AssessingOfficer found that the agricultural land sold by the assessee wassituated within 4 kms of the municipal limits of Tnanesar City.According to notification of the Central Government, theagricultural land situated beyond 5 kms of the municipal limitswas liable to be excluded from the definition of capital assetChargeable to tax. On that basis, the Assessing Officer came tothe conclusion that the land of the assessee was not anagricultural land, rather urban land tn nature. Even theargument of the assessee that any kind of rural land is excludedfrom the scope of definition of the capital asset under Section:2(14) of tne Act does not hold water in the light of thenotification issued by the Central Government as the provision.itself empowers the Central Government to prescribe theagricultural land situated at sucn a distance, having regard tothe extent, and scope of urbanization of that area and otherrelevant consideration and, therefore, It Is apparent that theland of the appellant falls within 5 kms of the municipal limitswhich included in the definition of capital assets chargeabie totax. The said findings were affirmed by CIT(A) and the Tribunal.No tllegality or perversity could be pointed out by the learnedcounsel for the appellant in the concurrent findings of factrecorded by the authorities below. ITA No.143 of 2018(0&M) =-5- 6.No question of law, much less any substantialquestion of law, arises in the present appeal for determination. ].At this stage, learned counsel for the appellantsSuomitted that vide CM No.2384/7-Cll of 2018, the assessee Iclaiming the following additional substantial questions of law:- “1 aWhether in the facts and circumstances of the|case, pursuant to CBDT Circular No.14 (XL-35)|dated 11.4.1955, can the assessee be declined.the benefit of claim & allowance of exemption|u/s54F of the Income Tax Act, 1961?case, pursuant to CBDT Circular No.14 (XL-35)|dated 11.4.1955, can the assessee be declined.the benefit of claim & allowance of exemption|u/s54F of the Income Tax Act, 1961? Whether in the facts and circumstances of the|case, can the legal claim. arising out ofundisputed fact can be raised at any stage ofcase proceedings pursuant to the judgment otfNational Thermal Co. Ltd. vs. CIT (1998) 229 ITR|383 (SC)?” case, can the legal claim. arising out ofundisputed fact can be raised at any stage ofcase proceedings pursuant to the judgment otfNational Thermal Co. Ltd. vs. CIT (1998) 229 ITR|383 (SC)?” 8.We proceed to decide CM No.2384/7-Cll of 2018wherein additional substantial questions of law nave been.claimed. In so far as additional substantial questions of law atSr.No.(II)} Is concerned, there Is no dispute with regard to theproposition of law enunciated therein. However, the applicability.of tne legal position is required to be examined tn the facts and.circumstances of each case. In the present case, the assessee-appellant having lost before the Assessing Officer, CIT(A), and | ITA No.143 of 2018(0&M) 8.We proceed to decide CM No.2384/7-Cll of 2018wherein additional substantial questions of law nave been.claimed. In so far as additional substantial questions of law atSr.No.(II)} Is concerned, there Is no dispute with regard to theproposition of law enunciated therein. However, the applicability.of tne legal position is required to be examined tn the facts and.circumstances of each case. In the present case, the assessee-appellant having lost before the Assessing Officer, CIT(A), and | ITA No.143 of 2018(0&M) the Tribunal has now sought to raise an issue that the assesseewould be entitled to benefit of provisions of Section 54F of theAct as there was an investment made in the residential nouse.A perusal of the order of the Assessing Officer, CIT(A) and theTribunal clearly snows that no such claim was ever made and nofacts relating to this issue had been pleaded, proved orestablisned before any of the authorities below. There is nomaterial on record on the basis of which the claim of the.assessee under Section 54F of the Act can be entertained, atthis stage. Accordingly, we do not find any merit In CMNo.2384/7-Cll of 2018 and the same Is, therefore, dismissed. QO.In view of the above, the present appeal beingdevoid of any merit Is dismissed. (AJAY KUMAR MITTAL) JUDGE| November 02,2018 (MANJARI NEHRU KAUL) JUDGE. KD/gbs Whether speaking / reasoned: Yes/No — Whether Reportable: Yes/ No