Income Tax Appellate Tribunal - Jodhpur
M/S. Accurate Bearings Pvt. Ld. , ... vs Ito Ward-1(1), Jodhpur on 10 May, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH, JODHPUR
BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND
SHRI A. T. VARKEY, JUDICIAL MEMBER
ITA No.35/Jodh/2019
(ASSESSMENT YEAR-2014-15)
M/s. Accurate Bearings Pvt. Vs Income-tax Officer, Ward-1(1),
Ltd. (PAN: AABCA5203H) Jodhpur, Rajasthan.
C/o, Rajendra Jain,
Advocate, 106, Akshay Deep
Complex, 5th B road,
Sardarpura, Jodhpur.
(Appellant) (Respondent)
Appellant By Sh. Rajendra Jain, Advocate
Respondent By Sh. P.K. Singi, DR
Date of hearing 09.05.2019
Date of Pronouncement 10.05.2019
O RDER
PER A. T. Varkey, J.M.
2
ITA No.35/Jodh/2019
M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 This is an appeal preferred by the assessee against the order of Ld. Commissioner of Income Tax (Appeals)-1, Jodhpur dated 26.11.2018 for AY 2014-15.
2. Though the assessee has raised as many as six ground of appeal, the sole issue involved in this appeal is against the action of the Ld. CIT(A) in upholding the decision of the AO that land in dispute (which was sold by assessee as agricultural land) was within Municipal limit i.e. within 8 kms. and, therefore, the assessee's claim that the land was an agricultural land was not accepted and treated as capital asset and thereby erred in sustaining the addition of Rs.1,66,30,754/-.
3. Brief facts of the case are that the AO during the assessment proceedings noted that as per AIR information, the assessee had sold a piece of land on 25.03.2014 for a consideration of Rs.1,73,55,850/- and since the assessee has neither shown any capital gain; nor any agricultural income or any exempt income earlier on the sale of the land in question, the AO issued notice to the assessee as to why the property should not be treated as capital asset? The AO took note that the land in question was purchased by the assessee on 09.12.1994 for Rs. 2 lacs by registered sale deed. And the AO noted that the land is situated at Khasra No. 142 and 142/4 at village Mogra Kalan, Patwar area - Mogra Kalan, Tehsil - Luni and the total area of property was 15.13 (11.09) bigha. According to the AO, though the assessee claimed that the land in question was agricultural land which was situated beyond 8 kms. from the municipal limits of Jodhpur Nagar Nigam and claimed that the income on sale of land is exempt from tax, he did not agree for the following reasons. The AO noted that the assessee company was incorporated in 1991 and since the objects in the memorandum of association was for the company to manufacturing and trading of bearings and other metal machinery parts/items and there was no object in the Memorandum & Articles of Association to purchase agricultural land and to do farming etc. ; and since the assessee has not undertaken any agricultural activities and the adjoining lands were occupied by industrial concerns running their business, according to AO, the land cannot be termed as agricultural property. However, the AO fairly acknowledged the fact that in the 3 ITA No.35/Jodh/2019 M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 Girdwar report (Patwari Report/Revenue report) the sowing of agriculture has been shown by the Patwari upto 16.10.2016 in the land in question, therefore, in order to ascertain whether the land was agricultural land or not as well as to ascertain the distance from municipal limits and taking note of the amendment made by the Finance Act, 2013 w.e.f. 01.04.2014 (AY 2014-15) in sec. 2(14) of the Act that the agricultural land should be situated within the distance of 8 kms which should be measured aerially from the limits of the Municipality i.e. Jodhpur Nagar Nigam, the AO directed the assessee to file evidence to prove its claim. Pursuant to the direction of the AO, the assessee filed on 25.06.2016 details of the land along with a certificate dated 26.03.2014 of Patwari, Mogra Kalan stating that the land is situated at a distance of about 10 kms. from the outer limit of Jodhpur Nagar Nigam (Annexed as Annexure B to the assessment order by the AO). According to AO, since the Patwari in his report has not given Aerial distance of the land from Jodhpur Nagar Nigam and has not given any basis of calculation of arriving at 10 kms. he did not accept the same.
4. Thereafter, the AO deputed on 04.07.2016 Shri Kamal Deep Mourya, Inspector under him to conduct spot enquiry and report about location and actual distance of the land from the municipal limit of Jodhpur Nagar Nigam by 08.04.2016. According to AO, the Inspector gave his report on 30.11.2016 and reported that the land is situated adjoining to Mohini Industries and Press Kaan Society and is near Pali Road on Guda Bishnoiyan Road. In his report he has stated that physical verification of the land was not possible, however, from the Jodhpur Nagar Nigam office he came to know that municipal limit is near Jhalamand Circle and as per Google Map the land is at a distance of 9 to 10 kms. He also filed some copies of the map, which according to AO, is illegible, so he did not accept the same.
5. Meanwhile, on 11.07.2016, the AO wrote a letter to the Patwari, Mogra Kalan to intimate the aerial distance of the land from municipal limits along with Map of the land and its distance. According to AO, no response was received from Patwari, Mogra Kalan. Since no reply was received the AO sent certain reminders 4 ITA No.35/Jodh/2019 M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 etc. to the Tehsildar but the Tehsildar did not give distance clearly from the property in dispute and the municipality. However, the AO acknowledges that copy of Girdwar report suggests that crop is sown upto 16.10.2016 on the land (sale happened on 20.03.2014). However, AO noted that since the Tehsildar report was silent in respect to the aerial distance of the municipal limit and the reports were clearly spelling out the distance of the land in question but speaks only about the distance of the village Mogra only, so, the AO did not accept the report.
6. Thereafter, he deputed an Inspector named Shri Jogal Kishore Choudhary (retired/re-employed with the department) was deputed to give report about the distance from the municipal area. As per his report the land is covered by a boundary wall, two shops have been constructed at road side of the land. The land is a barren land, covered with bushes and trees and since last 7 to 10 years no agriculture operations were done on the land. The boundary of the land at Guda Bishnoiyan road starts at a distance of 500 meters from the main Pali Road, Mogra Over bridge. This Inspector explains means that the land is at a distance of 500 meters from Pali Main Road, on left side while going from Jodhpur to Pali. Thereafter, the Inspector notes that the municipal limit of Jodhpur Nagar Nigam ends at Pali Road about two kilometers from Jhalamand Circle covering PHED office and Prithviraj Nagar and upto new High Court Building at Shatabadi by pass. The road distance from municipal limit to Mogra over bridge on Pali Road is 7.8 kms. According to the Inspector the road is not quite straight road, it has small curves. Thereafter, the aerial distance of the land is measured at 7 kms. from the municipal limits of the Jodhpur city. According to AO, the Inspector has provided copy of Google Map of road from Jhalamand Circle to Mogra over bridge on Pali Road and marked aerial route of land to municipal limits. Thus, according to AO, the land is situated within 8 kms. of the municipal limits and, therefore, the land sold by the assessee is a capital asset and LTCG on sale of land was calculated as on 25.03.2014 as Rs. 1,73,55,850/- and after indexation etc. the long term capital gain was calculated at Rs.1,66,30,754/-. Aggrieved, the assessee preferred an appeal before 5 ITA No.35/Jodh/2019 M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 the Ld. CIT(A) who was pleased to confirm the same. Aggrieved, the assessee is before us.
7. We have heard rival submissions and gone through the facts and circumstances of the case. The detailed brief facts given above are not repeated for the sake of brevity and the aforesaid facts are not disputed by both the parties. The Ld. AR of the assessee drew our attention to the Girdwari Report which is annexed as annexure 'C' to the assessment order by AO which shows that the sowing of agriculture was there upto 15.10.2016 (whereas the property in question was sold on 25.03.2014) which goes on to show that the land in question was an agricultural land. And the Ld. AR drew our attention to the Memorandum of Association of the assessee company and took us to the sub-heading ' other objects 'wherein we note that assessee company's object included agricultural activities, farming etc. so we note that AO was erroneous to say that assessee's objective does not have agricultural activities. According to Ld. AR that the certificate of Patwari Mogra Kalan dated 26.03.2014 has clearly spelt out that the land in question is situate about 10 kms. from the outer limit of Jodhpur Nagar Nigam which fact has been acknowledged by the AO at para 6 of his assessment order. And the Inspector deputed by the AO had submitted his report dated 30.11.2016 has stated that the land is at a distance of 9 to 10 kms. from the municipal limit and for that he relied on the distance between Jhalamand Circle and assessee's property with the aid of Google Map. Thereafter, the Ld. AR drew our attention to page 13 of the paper book which is the screen shot from Google Map, which shows the flight distance (aerial) between Jhalamand Circle (Jodhpur Nagar Nigam outer limit) and Mogra Kalan (place where assessee's property is situated) shown as 13 Kms. According to the Ld. AR when the Patwari, the Revenue Officer who is the custodian of Revenue records has certified the distance and the serving Inspector of the Department also has concurred with the view of the Patwari, the matter should have settled there. However, the AO not getting a report against the claim raised by the assessee, has taken the assistance of a retired re-employed Inspector to give a tailored report 6 ITA No.35/Jodh/2019 M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 which also according to the Ld. AR if seen carefully will show that the report acknowledges the distance of 7.8 kms. plus 500 meters which comes to 8.3 kms. However, in the final conclusion of the report, the re-employed Inspector without any basis has stated the aerial distance to be 7 kms. which has been taken as gospel of truth by AO and denied the claim of the assessee that the agricultural land is situated outside 8 kms. from the outer limit of Jodhpur Nagar Nigam and, therefore, income is not exempt, since immovable property is a capital asset. We note that the aforesaid facts have not been disputed. We note that the AO relying on the re- employed Inspector whose report we have stated above has been relied upon to negate the claim of the assessee which was in-turn supported by certificate dated 26.03.2014 of Patwari, Mogra Kalan stating that land is situated at a distance of about 10 kms. from outer limit of Jodhpur Nagar Nigam and that of the Inspector deputed by the AO which fact has been acknowledged by AO at para 7 of his order who concurred with the distance given by Patwari by report dated 30.11.2016. The assessee had filed Girdwar report which is annexure 'C' to the assessment order which says that the distance is approx. 10 kms. from the municipal limits. The Serving Inspector deputed by the AO also gives a report that it is around 9 to 10 kms. and had relied on the Google map aerial distance. Page 13 of the paper book Google map also suggest that the distance is more than 10 kms. The AO himself has written letter to the Patwari, Mogra Kalan as well as the Tehsilder, Luni and the Tehsilder, Jodhpur on 14.12.2016 giving a copy of Girdwari report which states that crop is sown upto 16.10.2016 on the land in question. Our attention was drawn to the Tribunal's order in ITA No. 84/JP/2013 in the case of ITO Vs. Pooja Agarwal dated 31.01.2014 wherein in a similar matter it was observed as under:
".... It is noticed that alleged physical verifications which are not based on any scientific manner and not done by an expert in the field give divergent opinion. Therefore, these verifications cannot be relied upon. The best evidence in the form of reports of the Sarpanch, the Halka Patwari and even the Municipal Corporation, Jaipur (in the first instance) are emphatic and are reliable. Therefore, we are left with no option but to accept them as correct when these are pitted against the variant statements which in our considered opinion do not seem to be devoid of fearlessness or fairlessness."7 ITA No.35/Jodh/2019
M/s. Accurate Bearings Pvt. Ltd., AY 2014-15
8. Further, in order to counter the argument of Ld. DR that the assessee did not return any agricultural income or claimed expenditure on the land in question earlier goes on to shows that the land in question is not agricultural property, the Ld. AR drew our attention to CIT Vs. Smt. Debbie Alemao 331 ITR 59 (Bom) in which a similar contention was taken by the Revenue that the land sold which was claimed as agricultural land by the assessee was not actually used for agriculture inasmuch as no agricultural income was derived from this land and was not shown by the assessee in their income returns. In that case it was explained by the assessee saying that there were coconut trees in the land but the agricultural income derived by sale of coconuts was just enough to maintain the land and there was not actual surplus. Hence, no agricultural income was shown from this land. In the aforesaid factual matrix, the Hon'ble High Court opined "if an agricultural operation does not result in generation of surplus that cannot be a ground to say that the land was not used for agriculture purposes. It is not disputed that the land was shown in the revenue record to be used for agricultural purposes........'' And also in this respect we note that the objectives in the memorandum of Association (other objectives) of assessee at para 3 includes, inter alia, agricultural activities also. Likewise, in the present case, we note that the revenue authorities pursuant to the notice of AO has reported that in the land in question a Patwari has reported that seed was sowed in the land till 16.10.2016 which the AO acknowledges at para 4 of his assessment order. According to Ld. AR the land in question was an agricultural land as clear from the reports of Patwari who had inspected the property as on 16.10.2016. Therefore, in the aforesaid facts and the explanation of the assessee that crops from the land in question could not give any surplus, so the agriculture income was not reflected in the return or expenses claimed because agricultural activity was on a break even manner. According to us, the contention of the revenue that since there was no agricultural income shown by the assessee in the previous year cannot be the sole ground to deny the claim of the assessee when the fact is that the reports of Patwari reflects the property as agricultural land and the Patwari report says that 8 ITA No.35/Jodh/2019 M/s. Accurate Bearings Pvt. Ltd., AY 2014-15 the agricultural activities were carried out in the property till 16.10.2016 and the assessee had stated that the agricultural activities did not yield any surplus.
9. Taking into consideration the certificate of Patwari which is annexure 'C' to the assessment order and also the Inspector deputed by the AO which is placed at page 8 of the paper book and taking note of the copy of the Google Map, and even a perusal of the map annexed by the retired/reemployed official Jugal Kishore, the distance is 7.8 Kms. plus 50 meters and the distance of road and arerial road is almost in a straight line. Taking into consideration the overall facts and circumstances of the case, we are inclined to accept the claim of the assessee that the land in question is situated beyond 8 kms. from the municipal limits of Jodhpur Nagar Nigam and, since the land being agricultural property, consequently the sale consideration is exempt from LTCG. Therefore, the appeal of assessee is allowed.
8. In the result, appeal of assessee is allowed.
Order pronounced in the open court on 10th May, 2019
Sd/- Sd/-
(N.K. SAINI) (A. T. Varkey)
Vice President Judicial Member
Dated : 10.05.2019
"J.D. Sr. PS."
आदे शक त ल पअ े षत/ Copy of the order forwarded to :
अपीलाथ / The Appellant
यथ / The Respondent
आयकरआयु त/ CIT
आयकरआयु त (अपील)/ The CIT(A)
वभागीय त न ध, आयकरअपील यआ धकरण, च#डीगढ़/ DR, ITAT, Jodhpur
गाड&फाईल/ Guard File
आदे शानुसार/ By order
सहायकपंजीकार/ Assistant Registrar