SHRI SHANKARRAO J. DIOTE, Nagpur V. ITO,WARD-1(1), Nagpur

ITA 139/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93375 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Question of law
• Section: 2(14); 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO. 139/NAG/2013 ASS ESSMENT YEAR : 200 9-10. SHRI SHISHIR DIOTE, THE INCOME-TAX OFFICER , L/H OF SHRI SHANKARRAO J. DIOTE, V/S . WARD-1(1), 153B, SHIVAJI NAGAR, NAGPUR. NAGPUR. PAN AANPD1177C APPELLANT. RESPONDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : S HRI P.R. MANE. DATE OF HEARING - 24-04-2015 DATE OF ORDER 8 TH MAY,2015. O R D E R PER SHRI MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM THE ORDER LEARNED CIT(APPEALS)-I, NAGPUR DATED 20 TH FEB., 2012 AND THE SUBSTANTIAL GROUNDS RAISED ARE REPRODUCED BELOW : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS)-I, WAS TOTALL Y ARBITRARY AND UNJUSTIFIED IN UPHOLDING THE ACTION OF THE A.O. AND IN CONFIRMING THAT THE MEASUREMENT OF THE DISTANCE OF 8 KM FROM LOCAL MUN ICIPAL LIMIT SHALL BE STRAIGHT LINE ON A HORIZONTAL PLANE AND NOT BY R OAD. 2 2. THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS )-I WAS WRONG IN COMING TO THE CONCLUSION THAT THE SECTION 2(14)(II I) (A) AND (B) IS NOT APPLICABLE TO THE AGRICULTURAL LAND IN QUESTION. 3. THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS )-I WAS TOTALLY ARBITRARY AND UNJUSTIFIED IN DIRECTING THE ASSESSI NG OFFICER TO BRING THE SURPLUS AMOUNT TO TAX AS BUSINESS INCOME. 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT THE FA CTS OF THIS CASE AS EMERGED FROM THE CORRESPONDING ORDER PASSED UNDER SECTION 1 43(3) DATED 31-10-2011 WERE IDENTICAL WITH THE FACTS OF THE CASES ALREADY DECIDED OF THE FOLLOWING PERSONS : 1. SANJAY NAGORAO PAIDLEWAR ITA NO. 112/NAG/2012 2. NITISH RAMESHCHANDRA CHORDIA ITA NO. 113/NAG/2 012. 3. SHAISHIR S. DIOTA ITA NO. 147/NAG/2013 IN THIS REGARD OUR ATTENTION WAS DRAWN ON THE FACTS AS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE ALONG WITH THREE OTHER CO -OWNERS HAD SOLD AGRICULTURAL LAND SITUATED AT MOUZA : PIPLA BEARING KH. NO. 90/1 AND 108/2 ADMEASURING 1.22 HECTARES AND 2.02 HECTARES RESPECTIVELY. IN THE CAS E OF THE ASSESSEE THE ASSESSING OFFICER HAS TAXED AN AMOUNT OF ` .34,74,615/- AS SHORT TERM CAPITAL GAIN. THE ASSESSING OFFICERS CALCULATION AND CONNECTED OBSER VATIONS IN RESPECT OF IMPUGNED PLOTS WAS AS UNDER : AGRICULTURAL LAND SITUATED AT MOUZA, PIPLA, NAGP UR [P.H. NO. 38,KH.NO.90/1] THE ASSESSEE HAD SOLD AGRICULTURAL LAND AT MOUZA P IPLA, KH. NO. 90/1, P.H. NO.38 ADMEASURING 1.22 HECTARES TAH. & DIST. NAGPU R ON 5/04/2008 FOR A TOTAL CONSIDERATION OF ` .80 LACS. THE ASSESSEE HAD PURCHASED THE 3 PROPERTY ALONG WITH THREE OTHERS CO-OWNERS ON 19/0 4/2007 FOR A TOTAL CONSIDERATION OF ` .28 LACS. THE ASSESSEE IS HAVING 1/4 TH SHARE IN THE LAND AND THEREBY THE ASSESSEE EARNED PROFIT OF ` .12,66,250/- ON THE SALE OF THIS LAND. AGRICULTURAL LAND SITUATED AT MOUZA: PIPLA, NAGPU R [P.H. NO. 38, KH. NO. 108/2. THE ASSESSEE HAD SOLD AGRICULTURAL LAND AT MOUZA P IPLA, KH. NO. 108/2, PH. NO. 38 ADMEASURING 2.02 HECTARES TAH. & DIST. NAGP UR ON 15/04/2008 FOR A TOTAL CONSIDERATION OF ` .1.50 CRORES. THE ASSESSEE HAD PWURCHASED THIS PROPERTY ALONGWITH THREE OTHERS CO-OWNERS ON 23/08 /2007 FOR A TOTAL CONSIDERATION OF ` .59,00,000/-. THE ASSESSEE IS HAVING 1/4 TH SHARE IN THE LAND AND THEREBY THE ASSESSEE EARNED PROFIT OF ` .22,08,365/- ON THE SALE OF THIS LAND. ON THE OTHER HAND, THE ASSESSEE HAD CLAIMED THE TRA NSACTION AS EXEMPT UNDER SECTION 2(14) OF I.T. ACT ON THE GROUND THAT THE LA ND IN QUESTION WAS AN AGRICULTURAL LAND SITUATED BEYOND 8 KMS. OF MUNICIP AL LIMIT OF NAGPUR MUNICIPAL CORPORATION. CONTRARY TO THIS, ASSESSING OFFICER HA S MADE AN OBSERVATION THAT THE LAND WAS WITHIN 8 KMS. FROM MUNICIPAL LIMIT AS MEAS URED BY TOWN PLANNING AUTHORITY OF NAGPUR MUNICIPAL CORPORATION. THE ASS ESSING OFFICER HAS REFERRED A CERTIFICATE BY TOWN PLANNING AUTHORITY THAT THE PL OTS IN QUESTION WERE SITUATED AT 1.30 KMS. AND 1.10 KMS. RESPECTIVELY FROM THE MUNIC IPAL LIMITS. THE ASSESSING OFFICER HAS, THEREFORE, HELD THAT THE LAND IN QUEST ION WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(47) OF THE I.T. ACT. THE O THER OBSERVATION OF THE ASSESSING OFFICER WAS THAT THE ASSESSEE WAS NOT AN AGRICULTURIST AND THE LAND WAS HELD FOR A PERIOD OF 13 MONTHS AND 8 MONTHS RESPECT IVELY IN RESPECT OF BOTH THE PLOTS. SINCE THE AFOREMENTIONED LAND WAS TAXED IN T HE HANDS OF THE ASSESSEE, THEREFORE, THE ASSESSEE HAD GONE IN APPEAL. 3. THE LEARNED CIT(APPEALS) HAS REITERATED THE FACT S OF THE CASE AS UNDER : 4 THE APPELLANT ALONG WITH THREE OTHER CO-OWNERS S HRI NITISH RAMESHCHANDRA CHORDIA, SHRI SANJAY NAGORAO PADLEWAR AND SHRI SHISIR S. DIOTE HAD PURCHASED LAND ON 10-04-2007 BEING AGRIC ULTURAL LAND OF 1.22 HECTARES AT MOUZA PIPLA S. NO. 90/1, PH 38 AT TAH. DIST. NAGPUR FOR AN AGGREGATE CONSIDERATION OF ` . 28 LACS, THE PROPORTIONATE SHARE IN THE COST OF THE APPELLANT BEING ` . 7 LACS. THE SAID PROPERTY WAS SOLD ON 15-04-2008 FOR ` ,80 LACS. THE PROPORTIONATE SHARE OF THE APPELLANT IN THE SAID SALE TRANSACTION WAS THUS ` .20 LACS. THE APPELLANT HAS CLAIMED THAT THE PROFIT FROM SALE OF LAND IN QUESTION IS EXEMPT FROM TAX A S IT IS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSET ACCORDING TO THE PROVISION S OF SEC5TION 2(14) OF THE ACT THE APPELLANT HAS STATED THAT THE ACTUAL DISTA NCE BETWEEN THE PROPERTIES AT MOUZA PIPLA, S.NO. 90/1, PH 38 AT TA H. DISTRICT NAGPUR AND THE MUNICIPAL JURISDICTION IS MORE THAN 8 KM. AND FURNI SHED A CERTIFICATE FROM THE PATWARI IN SUPPORT OF ITS CLAIM. THE AO HAS R EJECTED THE APPELLANTS CLAIM HOLDING THAT THE PROPERTY IN QUESTION WAS WI THIN THE SPECIFIED DISTANCE OF THE MUNICIPAL JURISDICTION OF NAGPUR AN D THEREFORE NOT EXEMPT FROM TAXATION AND THEREFORE BROUGHT TO TAX AN AMOU NT OF ` .12,66,250/- UNDER THE HEAD SHORT TERM CAPITAL GAIN. THE APPELLANT HAS SIMILARLY PURCHASED 2.02 HECTA RES OF LAND AT MOUZA PIPLA S.NO. 108/2, PH 38 AT TAH. DISTRICT NAGPUR ALONGWI TH THREE CO-OWNERS SHRI NITISH RAMESHCHANDRA CHORDIA, SHRI SANJAY NAGORAO P ADLEWAR AND SHRI SHANKARRAO KAIRAMJI DIOTE ON 23-08-2007 FOR AN AGGR EGATE CONSIDERATION OF ` .61,66,540/- APPELLANTS SHARE IN CONSIDERATION BEI NG ` .15,41,635/-. THIS LAND WAS SOLD ON 15-04-2008 FOR AN AGGREGATE CONSI DERATION OF ` .1,50,000/- , THE PROPORTIONATE SHARE OF THE APPELLANT BEING ` .37,50,000/-. THE APPELLANT HAS CLAIMED THAT THE PROFIT ON SALE OF THIS LAND IS ALSO EXEMPTED DUE TO THE FACT THAT THE LAND SOLD IS IN THE NATUR E OF AGRICULTURAL LAND AND NOT THE CAPITAL ASSET ACCORDING TO SECTION 2(14) O F THE ACT. APPELLANT HAS STATED THAT LAND IN QUESTION AT MOUZXA PIPLA, S.NO . 90/1, PH 38 AT TAH. DISTRICT NAGPUR IS BEYOND A DISTANCE OF 8 KM FROM THE MUNICIPAL JURISDICTION OF NAGPUR. THE CERTIFICATE FROM PATWARI WAS SUB MI TTED TO SUPPORT ITS CLAIM. HOWEVER, THE AO HAS REJECTED THE APPELLANTS CONT ENTION AND HELD THAT THE PROPERTY WAS WITHIN THE DISTANCE OF 8 KM FROM MUNI CIPAL LIMITS AND BROUGHT TO TAX AN AMOUNT OF ` .22,08,365/-. THE AO HAS RELIED ON SECTION 11 OF T HE GENERAL CLAUSES ACT, 1897 IN SUPPORT THAT DISTANCE MUST BE MEASURED NOT BY ROAD DISTANCE BUT BY SHORTEST DISTANCE AS THE CROW FILES. 5 THE FIRST FINDING OF LEARNED CIT(APPEALS) WAS THAT ON PRINCIPLE, THE DISTANCE IS TO BE MEASURED IN A STRAIGHT LINE ON A HORIZONTA L PLANE. FOR THIS FINDING, HE HAS REFERRED SECTION 11 OF GENERAL CLAUSES ACT, 1897. ON THE SECOND ISSUE ABOUT THE NATURE OF LAND WHETHER AGRICULTURAL OR NOT, HE HAS HELD THAT THE ASSESSEE HAD ENTERED INTO A BUSINESS VENTURE. ACCORDING TO HIM, THE ASSESSEE WAS NOT HAVING AN INTENTION TO CULTIVATE THE LAND AS AGRICULTURAL LAND BUT TO EXPLOIT THE LAND AS A COMMERCIAL ASSET, THEREFORE, NOT ENTITLED FOR ANY EXEMPTION. BEING AGGRIEVED, NOW THE ASSESSEE IS FURTHER IN APPEAL. 4. AS STATED ABOVE, WE HAVE BEEN INFORMED IN THE B EGINNING OF THE CASE ITSELF, THAT IN RESPECT OF THE OTHER THREE CO-OWNERS THE IT AT, NAGPUR BENCH (E-COURT), MUMBAI VIDE AN ORDER DATED 22 ND MARCH, 2013 IN THE CASES OF 1. SANJAY NAGORAO PAIDLEWAR ITA NO. 112/NAG/2012, 2. NITISH RAMESHCH ANDRA CHORDIA ITA NO. 113/NAG/2012 AND 3. SHAISHIR S. DIOTA ITA NO. 147 /NAG/2013 HAS NARRATED THE FACTS AS UNDER : BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AL ONG WITH THREE CO- OWNERS SHRI SANJAY NAGORAO PAIDLEWAR, SHRI SHISHIR SSHANKARRAO DIOTE AND SHRI SHANKARRAO JAIRAMJI DIOTE HAD PURCHASED LAND O N 10-04-2007 BEING AGRICULTURAL LAND OF 1.22 HECTARES AT MOPUZA PIPLA S.NO. 90/1, PH 38 TAH. DIST. NAGPUR FOR AN AGGREGATE CONSIDERATION OF ` . 29,40,420/-, THE PROPORTIONATE SHARE IN THE COST OF THE ASSESSEE BE ING ` . 7,35,105/-. THE SAID PROPERTY WAS SOLD ON 15-04-2008 FOR ` . 80 LACS. THE PROPORTIONATE SHARE OF THE ASSESSEE IN THE SAID SALE TRANSACTION WAS THU S ` . 20 LACS. ASSESSEE HAS CLAIMED THAT THE PROFIT FROM SALE OF LAND IN QUEST ION IS EXEMPT FROM TAX AS IT IS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSET A CCORDING TO THE PROVISIONS OF SECTION 2(14) SOF THE ACT. ASSESSEE HAS STATED THA T THE ACTUAL DISTANCE BETWEEN THE PROPERTY AT MOUZA PIPLA, S. NO.90/1 PH 38 AT TAH. DISTRICT NAGPUR AND THE MUNICIPAL JURISDICTION IS MORE THAN 8 KM AND FURNISHED A CERTIFICATE FROM THE PATWARI IN SUPPORT OF ITS CLA IM. AO REJECTED THE ASSESSEES CLAIM HOLDING THAT THE PROPERTY IN QUES TION WAS WITHIN THE 6 SPECIFIED DISTANCE OF THE MUNICIPAL JURISDICTION OF NAGPUR AND THEREFORE NOT EXEMPT, THEREFORE, BROUGHT TO TAX AN AMOUNT OF ` .12.64,895/- UNDER THE HEAD SHORT TERM CAPITAL GAIN. SIMILARLY THE ASSESS EE PURCHASED 2.02 HECTARES OF LAND AT MOUZA PIPLA S.NO. 108/2, PH 38 AT TAH. DISTRICT NAGPUR ALONGWITH THREE CO-OWNERS SHRI SANJAY NAGORAO PAIDL EWAR, SHRI SHISHIR SHANKARRAO DIOTE AND SHRI SHANKARRAO JAIRAMJI DIOTE ON 23-08-2007 FOR AN AGGREGATE CONSIDERATION OF ` .61,66,540/- ASSESSEES SHARE IN CONSIDERATION BEING ` .15,41,635/-. THIS LAND WAS SOLD ON 15-04-2008 FOR AN AGGREGATE CONSIDERATION OF ` .1,50,000/-. THE PROPORTIONATE SHARE OF THE ASSESSE E BEING ` .37,50,000/- THE ASSESSEE CLAIMED THAT THE PROFIT O N SALE OF THIS LAND IS ALSO EXEMPTED DUE TO THE FACT THAT THE LAN D SOLD IS IN THE NATURE OF AGRICULTURAL LAND AND NOT THE CAPITAL ASSET ACCORD ING TO SECTION 2(14) OF THE ACT. THE ASSESSEE STATED THAT LAND IN QUESTION AT MOUZA PIPLA S. NO. 90/1, PH 38 AT TA H. DISTRICT NAGPUR IS BEYOND A DISTANCE OF 8 KM FRO M THE MUNICIPAL JURISDICTION OF NAGPUR. THE CERTIFICATE F ROM PATWARI WAS SUBMITTED TO SUPPORT ITS CLAIM. HOWEVER AO REJECTE D THE ASSESSEES CONTENTION AND HELD THAT THE PROPERTY WAS WITHIN T HE DISTANCE OF 8 KM FROM MUNICIPAL LIMITS AND BROUGHT TO TAX AN AMOUNT OF ` .22,08,365/-. AO RELIED ON SECTION 11 OF GENERAL CLAUSES ACT, 1897 IN SUPP ORT THAT DISTANCE MUST BE MEASURED NOT BY ROAD DISTANCE BUT BY THE SHORTEST DISTANCE AS THE CROWS FLIGHT. 5. ON THE ISSUE OF CONSIDERATION RECEIVED ON SALE O F AGRICULTURAL LAND, WHETHER TO BE TAXED OR NOT, FINDING OF THE TRIBUNAL WAS AT PAGE 17 PARA 21 OF THE ORDER WHICH IS REPRODUCED BELOW : SINCE THIS ISSUE HAS ALREADY BEEN DECIDED BY VAR IOUS BENCHES OF THE TRIBUNAL AND THE HONBLE BOMBAY HIGH COURT AS WELL AS THE HONBLE DELHI HIGH COURT AND THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DLF UNITED LIMITED (SUPRA), WHICH HAS BEEN CONFIRM ED BY THE HONBLE SUPREME COURT, THEREFORE, WE HOLD THAT ANY CONSIDE RATION RECEIOVED OUT OF SALE OF AGRICULTURAL LAND, CANNOT BE TREATED AS BU SINESS INCOME FOR THE PURPOSE OF CAPITAL GAIN OR FOR THE PURPOSES OF BUS INESS INCOME, WHATEVER THE CASE MAY BE. IN VIEW OF THE AFORESAID FACTS AN D CIRCUMSTANCES OF THE CASE, WE ALLOW THIS GROUND IN FAVOUR OF ALL THE AS SESSEES. 7 IN RESPECT OF THE ISSUE OF MEASURING THE DISTANCE THE TRIBUNAL HAS GIVEN FINDING ON PAGE 14 PARA 15 OF ITS ORDER AS UNDER : WE HAVE ALSO TAKEN INTO CONSIDERATION VARIOUS AR GUMENTS OF LEARNED CIT DR AND FOUND THAT SINCE THE ISSUE IS COVERED B Y THE DECISION OF THE VARIOUS BENCHES OF THE TRIBUNAL AS WELL BY HONBL E PUNJAB AND HARYANA HIGH COURT, THEREFORE, IN VIEW OF THE CONSISTENCY THE VIEW TAKEN BY VARIOUS BENCHES HAS TO BE FOLLOWED. THERE IS NO CONTRARY D ECISION IS AVAILABLE ON THE SAME FACTS AND, THEREFORE, IT CANNOT BE SAID T HAT THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT HAS ONLY PERS UASIVE VALUE. IF THERE IS ANY CONTRARY DECISION IS AVAILABLE EITHER BY TH E HONBLE HIGH COURT OR BY ANY OTHER BENCHES OF THE TRIBUNAL, THEN OF COURSE IT CAN BE SAID THAT THE DECISION OF OTHER BENCHES HAVE PERSUASIVE VALUE. I N VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT DISTANCE OF 8 KMS. HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAI GHT LINE DISTANCE ON HORIZONTAL PLANE OR CROWS FLIGHT. HENCE THIS ISSU E IS DECIDED IN FAVOUR OF THE ASSESSEES. 6. THE REVENUE DEPARTMENT HAS CHALLENGED THE SAID O RDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT OF JUDICATURE AT BOMBA Y, NAGPUR BENCH, NAGPUR AND IN TAX APPEAL NO. 120 OF 2013 OF NITISH RAMESHC HANDRA CHORDIA, TAX APPEAL NO. 121 OF 2013 IN THE CASE OF SHRI SANJAY NAGORAO P AIDLEWAR AND IN TAX APPEAL NO. 122 OF 2013 IN THE CASE OF SHISHIR S. DIOTE VID E ORDER DATED 30 TH OF MARCH, 2015 HAS DECIDED A SUBSTANTIVE QUESTION OF LAW RAIS ED AS TO WHETHER THE ITAT WAS CORRECT TO HOLD THAT THE DISTANCE OF 8 KMS. OUGHT TO BE MEASURED BY THE APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD. ON THIS ISSUE THE HONBLE COURT HAS HELD AS UNDER ON PAGE 20 PARA 15 OF THE ORDER WHICH IS REPR ODUCED BELOW : INSOFAR AS RELEVANCE OF SECTION 11 OF THE GENERA L CLAUSES ACT IS CONCERNED, IT NEEDS TO BE NOTED THAT HERE THE RELE VANT AMENDMENT PRESCRIBING DISTANCE TO BE COUNTED MUST BE AERIAL HAS COME INTO FORCE W.E.F. 1 ST APRIL, 2014. THE NEED OF AMENDMENT ITSELF SHOWS TH AT, IN ORDER TO AVOID ANY CONFUSION, THE EXERCISE BECAME NECESSARY. THE PARLIAMENT NOTICED THE 8 JUDGMENTS BEING DELIVERED AND THEREFORE, EMPHATICA LLY POINTED OUT AERIAL DISTANCE AS THE RELEVANT NORM. THIS EXERCISE TO CL EAR THE CONFUSION, THEREFORE, SHOWS THAT BENEFIT THEREOF MUST B E GIV EN TO THE ASSESSEE. IT IS SETTLED LAW THAT, IN SUCH MATTERS, WHEN THERE IS A NY DOUBT OR CONFUSION, THE VIEW IN FAVOUR OF THE ASSESSEE NEEDS TO BE ADOPTED . THE CIRCULAR NO. 3/240, DT. 24.1.2004 SHOWS VIDE CLAUSE NO. 4 AMENDMENT IN DEFINITION OF CAPITAL ASSET AND CLAUSE 4.5 DEALING WITH APPLICABILITY E XPRESSLY STIPULATES THAT IT TAKES EFFECT FROM 1.4.2004 AND THEREFORE, PROSPECT IVE APPLIES IN RELATION TO THE ASSESSMENT YEAR 2014-15 AND SUBSEQUENT ASSESSM ENT YEARS. HENCE, THE QUESTION WHETHER PRIOR TO THE SAID ASSESSMENT YEAR 2014-15 THE AUTHORITIES ERRED IN COMPUTING THE DISTANCE BY ROAD DOES NOT A RISE AT ALL. THE IT CANNOT BE QUESTIONED ON THAT GROUND. FOR THESE REASONS, S ECTION 11 OF THE GENERAL CLAUSES ACT ALSO HAS NO APPLICATION IN THE PRESENT MATTER WHERE THE ITAT WAS CONCERNED WITH THE ASSESSMENT YEAR 2009-10 OR PRIOR TO THE TIME WHEN AMENDMENT TOOK EFFECT. SIMULTANEOUSLY, IN RESPECT OF THE TAXABILITY OF TH E GAIN, THE HONBLE COURT IN PARA 14 HAS HELD THAT THE CAPITAL GAIN AROSE FROM T HE TRANSACTION WAS IN RESPECT OF AGRICULTURAL LAND, HENCE COULD NOT BE CONSIDERED AS BUSINESS INCOME. SINCE ON BOTH THE ISSUES A VIEW HAS ALREADY BEEN T AKEN BY RESPECTED COORDINATE BENCH AS WELL AS BY THE HONBLE HIGH COU RT, THEREFORE, THE FACTS OF THE CASE BEING IDENTICAL AS THE ASSESSEE IS ONE OF THE CO-OWNER OF THAT VERY PROPERTY, HENCE SQUARELY COVERED BY THOSE DECISIONS. BEING ON LAW AND ON FACTS THE GROUNDS RAISED ARE COVERED BY THE PRECEDENTS CITED SUPRA, H ENCE HEREBY ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. SD/- SD/- (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. NAGPUR, DATED: 8 TH MAY, 2015. 9 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY BY ORDER ASSISTANT REGISTRAR, WAKODE ITAT, NAG PUR