Smt. Dharmishta Narendra Parekh, Nagpur V. Income tax Officer Ward 3(1), Nagpur

ITA 163/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3883 (ITAT-NAGPUR)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MILLIND BHUSARI
• Keywords: Capital asset; Business income
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR A RAO , A M ITA NO. 1 63 / N AG / 20 1 2 ( ASSESSMENT YEAR 200 8 - 09 ) SMT. DHARMISTHA NARENDRA PAREKH, SARAFA BAZAR, ITWARI, NAGPUR - 440 002 VS. I TO, WARD 3 ( 1 ) , GROUND FLOOR, SARAF CHAMBAR S SADAR, NAGPUR - 440 001 . PAN NO. : A DNPP 1713 D ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : MR. VIJAY CHANDAK REVENUE BY : DR. MILLIND BHUSARI DATE OF HEARING : 15 TH MARCH., 2013 DATE OF PRONOUNCEME NT : 0 3 /04/2 013 O R D E R P ER BENCH : TH IS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAIN ST THE ORDER OF LEANED CIT(A) - I I , NAGPUR (MAHARASHTRA) RELATING TO ASSESSMENT YEAR 200 8 - 09 , WHICH HA S BEEN HEARD THROUG H E - COURT, MUMBAI. \ 2 . THE ASSESSEE IN ITS APPEAL RAISES OBJECTION IN REGARD TO INACTION ON THE PART OF THE LEARNED CIT(A) IN HOLDING AND MAINTAINING THE AGRICULTURAL LANDS SOLD BY THE ASSESSEE IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(III)(B) OF THE ACT BY ADOPTING THE ARIEL DISTANCE BY STRAIGHT LINE METHOD INSTEAD OF ROAD DISTANCE. 3 . IN THIS CASE THE ASSESSEE SOLD THE LAND IN MOUZA KHADKA MEASURING 1 HECTARE AND 2.21 HECTARE ON 21 - 8 - 2007 FOR A CONSIDERATION OF RS. 72,92, 000/ - AND RS. 1 , 61 , 15 , 0 00/ - . THE ASSESSEE CLAIMED THAT NO CAPITAL GAIN IS PAYABLE SINCE THE CONSIDERATION RECEIVED WAS ON ACCOUNT OF SALE OF AGRICULTURAL LAND AND NOT HIT BY THE PROVISION OF SECTION 2(14)(III)(B) OF THE ACT. FURTHER THE AO MEASURED THE DISTANCE BY ARIEL VIEW I.E . STRAIGHT LINE METHOD ON HORIZONTAL LINE , WHICH ITA NO. 1 63 / NAG/2012 2 WAS AT 5.1 KMS. ACCORDINGLY, HE HELD THAT THE AGRICULTURAL LAND SOLD BY THE ASSESSEE IS AN ASSET WITHIN THE MEANING OF SECTION 2(14)(III)(B) OF THE ACT . 4 . IN APPEAL BEFORE THE CIT(A) , THE ACTION OF THE AO HAS BEEN CONFIRMED BY PASSING A DETAILED ORDER. NOW, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 5 . DETAILED WRITTEN SUBMISSIONS WERE FILED. RELIANCE WAS PLACED IN VARIOUS CASE LAWS MENTIONED IN THE WRITTEN SUBMISSIONS. 6 . ON THE OTHER HAND, LEARN ED DR PLACED STRONGLY RELIANCE ON THE ORDER OF LEARNED CIT(A) AND PLACED RELIANCE ON THE ARGUMENTS ADVANCED IN THE CASE OF SANJAY NAGORAO PAIDLEWAR & NITISH RAMESHCHANDRA CHORDIA VS. ACIT, LISTED UNDER ITA NOS.112 & 113/NAG/2012 , WHICH WAS HEARD ON THE SA ME DATE. 7 . WE HAVE HEARD RIVAL SUBMISSION AND CONSIDERED THEM CAREFULLY. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ISSUE IS SQUARELY COVERED BY OUR OWN ORDER PASSED I N THE CASE OF SANJAY NAGORAO PAIDLEWAR & NI TISH RAMESHCHANDRA CHORDIA VS. ACIT, LISTED UNDER ITA NOS.112 & 113/NAG/2012 , WHICH WAS DECIDED ON 22 - 03 - 201 3 . THE ISSUE HAS BEEN DISCUSSED AT GREAT LENGTH AND FOUND THAT THIS IS SQUARELY COVERED BY VARIOUS HONBLE HIGH COURTS AND VARIOUS BENCHES OF THE TR IBUNAL. THE FINDINGS OF THE TRIBUNAL IN THE AFORESAID CASE HAVE BEEN RECORDED IN PARA 9 TO 21 , WHICH ARE AS UNDER : - 9 . WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. WE HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS FILED ON BEHALF OF BOTH THE PARTIES I.E. ASSESSEES AND DEPARTMENT AND HAVE ALSO PERUSED THE RELEVANT MATERIAL ON RECORD, ON WHICH OUR ITA NO. 1 63 / NAG/2012 3 ATTENTIONS WERE DRAWN. WE HAVE ALSO TAKEN INTO CONSIDERATION THE VARIOUS CASE LAWS RELIED UPON BY THE LEARNED AR AS WELL AS LEARNED CIT DR . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ISSUE IN RESPECT TO WHETHER THE AGRICULTURAL LAND IN QUESTION IS AN ASSET WITHIN THE MEANING OF SECTION 2(14) OR NOT, HAVE ALREADY BEEN DECIDED BY THE HON BLE PUNJAB AND HARY ANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH(SUPRA) . THIS DECISION OF THE HON BLE PUNJAB AND HARYANA HIGH COURT HAS BEEN CONSISTENTLY FOLLOWED BY VARIOUS BENCHES OF THE TRIBUNAL IN VARIOUS PARTS OF THE COUNTRY. ONE OF US HAS ALSO TAKEN INTO CONSIDERING THIS ISSUE WHILE SITTING IN JAIPUR BENCHES OF THE TRIBUNAL AND FOUND THAT THE DECISION OF THE HON BLE PUNJAB AND HARYANA HIGH COURT HAS TO BE FOLLOWED AND THE DISTANCE HAS TO MEASURED THROUGH APPROACH ROAD AND NOT THROUGH THE CROWS FLIGHT DISTANCE. THE HO N BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH (SUPRA) HAS HELD THAT THE DISTANCE OF AGRICULTURAL LAND BELONGING TO THE ASSESSEE WITHIN THE MEANING OF SECTION 2(14)(III) (B) HAS TO BE MEASURED IN TERMS OF APPROACH ROAD AND NOT BY A ST RAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT. COPY OF THE ORDER IS ALSO PLACED IN THE COMPILATION AT PAGES 1 & 2 . 10 . THE CONTENTION RAISED BY LEARNED CIT(A) THAT THE RECKONING OF URBANIZATION AS A FACTOR FOR PRESCRIBING THE DISTANCE IS OF SIGNIFICANCE WHICH WOULD YIELD TO THE PRINCIPLE OF MEASURING DISTANCE IN TERMS OF APPROACH ROAD RATHER THAN BY STRAIGHT LINE ON HORIZONTAL PLANE, THIS CONTENTION OF LEARNED CIT(A) HAS ALSO BEEN CONSIDERED BY THE HON BLE PUNJAB AND HARYANA HIGH COURT AN D HAS OBSERVED THAT THE PRINCIPLE OF MEASUREMENT OF DISTANCE IS CONSIDERED AS STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT THEN IT WOULD HAVE NO RELATIONSHIP WITH THE STATUTORY REQUIREMENT OF KEEPING IN VIEW THE EXTENT OF URBANIZATION . SUCH A COURSE WOULD BE ILLUSORY, WHICH IS IN PURSUANCE OF THE AFORESAID PROVISION THAT NOTIFICATION NO. 9447 DATED. 6 TH JANUARY, 1994 HAS BEEN ISSUED BY THE CENTRAL GOVERNMENT. IN RESPECT OF THE STATE OF PUNJAB, AT ITEM NO. 18, THE SUB - DIVISION KHANNA HAS BEEN LISTED AT SERIAL NO. 19. IT HAS INTER ALIA BEEN SPECIFIED THAT AREA UPTO 2 KMS. FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS HAS TO BE REGARDED AS OTHER THAN AGRICULTURAL LAND. ONCE THE STATOR GUIDANCE OF TAKING INTO ACCOUNT THE EXTENT AND SCOPE OF URBA NIZATION OF THE AREA HAS TO BE RECKONED WHILE ISSUING ANY SUCH NOTIFICATION THEN IT WOULD BE INCONGRUOUS TO THE ARGUMENT OF THE REVENUE THAT THE DISTANCE OF LAND SHOULD BE MEASURED BY THE METHOD OF STRAIGHT LINE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT BECAUSE ANY MEASUREMENT BY CROWS FLIGHT IS BOUND TO IGNORE THE URBANIZATION WHICH HAS TAKEN PLACE. THE DECISION OF THE MUMBAI BENCH IN THE CASE OF LAUKIK DEVELOPERS VS DCIT, REPORTED IN (2007) 108 TTJ (MUMBAI) 364 , WAS ALSO TA KEN INTO CONSIDERATION BY THE HO NBLE PUNJAB AND HARYANA HIGH COURT AND FOUND THAT THE DECISION OF THE TRIBUNAL HAS ATTAINED FINALITY. 1 1 . IN CASE OF LAUKIK DEVELOPERS (SUPRA) , THE MUMBAI BENCH OF THE TRIBUNAL HAS OBSERVED THAT ONCE THE PRINCIPLE OF MEASURING DISTANCE HAS BEEN SETTLE D NAMELY THAT THE DISTANCE OF THE AGRICULTURAL LAND BELONGING TO THE ASSESSEE - RESPONDENT HAS TO BE MEASURED IN TERMS OF BY APPROACH ROAD AND NOT BY A STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT. ACCORDINGLY, THE ITA NO. 1 63 / NAG/2012 4 HON BLE PUNJAB AND HA RYANA HIGH COURT HELD THAT THE DISTANCE HAS TO BE MEASURED BY APPROACH ROAD AN D NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT. IN CASE OF LAUKIK DEVELOPERS (SUPRA) , THE ASSESSEE DISPUTED THAT THE DISTANCE FOR THE PURPOSE OF SECT ION 80IB(10) HAS TO BE MEASURED THROUGH STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE AND NOT BY APPROACH ROAD. THE MUMBAI BENCH OF THE TRIBUNAL HAS HELD THAT THE ISSUE REGARDING DISTANCE TO BE MEASURED WITH REGARD TO ROAD DIS TANCE OR A STRAIGHT LINE DISTANCE IS COVERED WITH THE DECISION OF THE PUNE TRIBUNAL IN THE CASE OF MANGALAM INORGANICS (P) LTD (SUPRA) , WHEREIN IT WAS HELD THAT THE DISTANCE BETWEEN THE MUNICIPAL LIMITS AND ASSESSEES INDUSTRIAL UNDERTAKING HAS TO BE MEASURED HAVING REGARD TO THE RO A D DIS TANCE AND NOT AS PER THE CROWS FLIGHT I.E., A STRAIGHT - LINE DISTANCE AS CANVASSED BY THE REVENUE. 1 2 . IN CASE OF ITO VS. ASHOK SHUKLA, DECIDED IN ITA NO. 207/ INDORE/2012 , FOR ASSESSMENT YEAR 2008 - 09 , VIDE ORDER DATED 31 - 8 - 2012, THE ISSUE WAS IN RESPECT T O WHETHER THE ASSESSEE WAS ENTITLED TO EXEMPTION FROM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND. THIS ISSUE WAS EXAMINED IN DETAIL AND IT WAS FOUND THAT THE TEHSILDAR AND PATWARI HAVE GIVEN A REPORT THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AND THE D ISTANCE IS 9.7 KMS FROM THE MUNICIPAL LIMIT. THIS DISTANCE WAS THROUGH THE APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE METHOD. THEREAFTER DISCUSSING THE ISSUE ON MERIT AND HAVING TAKING INTO CONSIDERATION THE DECISION OF THE TRIBUNAL IN THE CASE OF LAU KIK DEVELOPERS (SUPRA) AND CONSIDERING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF BALKRISHNA HARIBALLABHADAS VS. CIT, REPORTED IN 138 ITR 245 , WHICH WAS RELIED UPON BY THE LEARNED DR AND FOUND THAT THE MEASUREMENT HAS TO BE ADOPTED BY TH E APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HON BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH (SUPRA) . 1 3 . IN CASE OF ACIT VS. M/S SHAGUN INFRASTRUCTURE PVT. LTD., DECIDED IN ITA NO . 209/NAG/2009 , FOR ASSESSMENT YEAR 2006 - 07, VIDE ORDER DATED 27 - 6 - 2011, THE NAGPUR BENCH OF THE TRIBUNAL HAS HELD THAT THE LAND IN QUESTION WHICH WAS SITUATED MORE THAN 8 KMS. FROM THE LOCAL MUNICIPAL LIMIT AND IS CLEARLY AGRICULTURAL LAND IN TERMS OF SEC TION 2(14)(III) OF THE ACT,, THEREFORE, ANY INCOME FROM SUCH LAND INCLUDING PROFIT ARISING FROM SALE OF SUCH AGRICULTURAL LAND IS NOT ASSESSABLE AS INCOME. 1 4 . IN CASE OF ACIT VS. GAURAV KHANDELWAL , DECIDED IN ITA NO. 195/AGRA/2010 , FOR ASSESSMENT YEAR 2006 - 07, THE AGRA BENCH OF THE TRIBUNAL FOLLOWING THE DECISION OF MUMBAI BENCH IN CASE OF LAUKIK DEVELOPERS (SUPRA) AND THE DECISION OF HON BLE PUNJAB AND HAR YANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH (SUPRA) , HE LD THAT THE DISTANCE OF 8KMS HAS TO BE ME ASURED BY APPROACH ROAD DISTANCE AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE. SIMILAR VIEW HAS BEEN EXPRESSED IN CASE OF SHRI MA I NRAJ VS. ACIT , DECIDED IN ITA NO. 1371/M D S /2011 , FOR ASSESSMENT YEAR 2007 - 08 VIDE ORDER DATED 18 - 8 - 2011. IN THIS CASE ALSO IT HAS BEEN HELD THAT THE DISTANCE HAS TO BE MEASURED BY APPROACH ROAD AND NOT THROUGH CROWS FLIGHT OR STRAIGHT LINE METHOD. IN CASE OF SMT. SAVITHRI AMMAL VS. ITO , DECIDED IN ITA NO.487/M D S /201 2 , VIDE ORDER DATED 12 - 7 - 2012 AGAIN IT HAS BEEN HELD TH AT THE DISTANCE HAS TO BE MEASURED AS PER THE APPROACH ITA NO. 1 63 / NAG/2012 5 ROAD AND NOT BY STRAIGHT LINE METHOD. SIMILAR VIEW HAS BEEN EXPRESSED IN CASE OF ITO VS. SHRI CHAGANLAL LAL JI ASWIN BUSINESS , DECIDED IN ITA NO. 857/M D S /2011, FOR THE ASSESSMENT YEAR 2007 - 08 , VIDE ORDER DATED 18 - 2 - 2011 . IN CASE OF ITO VS. M/S RANJIT RATTAN MEHRA (HUF), DECIDED IN ITA NO. 442/ASR/2011 FOR ASSESSMENT YEAR 200 8 - 09 , THE AMRITSAR BENCH OF THE TRIBUNAL HAS TAKEN A VIEW THAT THE DISTANCE OF 8 KMS HAS TO BE MEASURED THROUGH THE APPROACH ROAD AND NOT THROUGH THE STRAIGHT LINE METHOD. WHILE HOLDING SO, THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF SATINDER PAL SINGH (SUPRA) , WAS TAKEN INTO CONSIDERATION AND ANOTHER DECISION O F THE SAME HIGH COURT IN CASE OF CIT VS. LAL SINGH & OTHERS, REPORTED IN (2010) 228 CTR 575 WAS ALSO TAKEN INTO CONSIDERATION AND HAS ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE DISTANCE OF 8KM HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD ON HORIZONTAL PLANE. 1 5 . WE HAVE ALSO TAKEN INTO CONSIDERATION VARIOUS ARGUMENTS OF LEARNED CIT DR AND FOUND THAT SINCE THE ISSUE IS COVERED BY THE DECISION OF THE VARIOUS BENCHES OF THE TRIBUNAL AS WELL BY HON BLE PUNJAB AND HARYANA HIGH COURT, THEREFORE, IN VIEW OF THE CON SISTENCY THE VIEW TAKEN BY VARIOUS BENCHES HAS TO BE FOLLOWED. THERE IS NO CONTRARY DECISION IS AVAILABLE ON THE SAME FACTS AND, THEREFORE, IT CANNOT BE SAID THAT THE DECISION OF THE HON BLE PUNJAB AND HARYANA HIGH COURT HAS ONLY PERSUASIVE VALUE. IF THER E IS ANY CONTRARY DECISION IS AVAILABLE EITHER BY THE HON BLE HIGH COURT OR BY ANY OTHER BENCHES OF THE TRIBUNAL, THEN OF COURSE IT CAN BE SAID THAT THE DECISION OF OTHER BENCHES HA VE PERSUASIVE VALUE. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF TH E CASE, WE HELD THAT DISTANCE OF 8 KMS. HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR CROWS FLIGHT. HENCE, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEES. 1 6 . REGARDING THE ISSUE IN REGARD TO WHETHER THE SALE CONSIDERATION OUT OF AGRICULTURAL INCOME IS ASSESSABLE AS BUSINESS INCOME OR NOT, ONCE WE HAVE HELD THAT THIS WAS AN AGRICULTURAL LAND AND, THEREFORE, ANY CONSIDERATION OUT OF SALE OF AGRICULTURAL LAND, WHICH IS NOT ASSESSABLE AS THE LAND WAS SITU ATED BEYOND 8 KMS., THEREFORE, THE DIRECTION OF THE LEARNED CIT(A) THAT THE SURPLUS MAY BE TREATED AS BUSINESS INCOME , HAS BECOME NOW MEANINGLESS. E VEN AND OTHERWISE, THIS ISSUE IS ALSO DECIDED BY VARIOUS HIGH COURTS INCLUDING THE HON BLE BOMBAY HIGH COURT . THOUGH LEARNED CIT(A) HAS PLACED RELIANCE ON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN CASE OF GOPAL RAMNARAYAN KASAT, REPORTED IN 9 TAXMAN.COM 236 (BOM) , HOWEVER, IN A LATEST DECISION THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SMT. DEBB IE ALEMAO, REPORTED IN (2011) 331 ITR 59 , HAS HELD THAT THE LAND WHICH WAS SHOWN AS AGRICULTURAL LAND IN THE REVENUE RECORDS AND NEVER SOUGHT TO BE USED FOR NON - AGRICULTURAL PURPOSE S BY THE ASSESSEE TILL IT WAS SOLD HAS TO BE TREATED AS AGRICULTURAL LAND, EVEN THOUGH NO AGRICULTURAL INCOME WAS SHOWN BY THE ASSESSEE FROM THIS LAND AND, THEREFORE, NO CAPITAL GAIN WAS TAXABLE ON THE SALE OF THE SAID LAND. 1 7 . FACTS IN THE CASE IN HAND ARE SIMILAR. THE LAND IN QUESTION WAS SHOWN AS AGRICULTURAL LAND IN THE REVE NUE RECORD. WHETHER THERE WAS ANY AGRICULTURAL INCOME OR NOT , IS NOT THE MOOT QUESTION TO DECIDE THE ISSUE, HOWEVER, THE IMPORTANT FACTOR IS TO BE DECIDED ITA NO. 1 63 / NAG/2012 6 AS TO WHETHER THE CHARACTER OF THE LAND IS AGRICULTURE OR NOT. UNDISPUTEDLY , IN THE REVENUE RECORD AN D AS PER THE PATWARI CERTIFICATE, THE LAND IN QUESTION IS AGRICULTURAL LAND. THEREFORE, THE SALE CONSIDERATION WAS NOT TAXABLE ON THE SALE OF SAID LAND I.E. EITHER ON ACCOUNT OF CAPITAL GAIN OR ON ACCOUNT OF BUSINESS INCOME. 1 8 . EVEN WE FOUND THAT THIS ISS UE HAS BEEN DECIDED BY THE HON BLE APEX COURT WHILE CONFIRMING THE ORDER OF THE HON BLE DELHI HIGH COURT IN THE CASE OF DLF UNITED LIMITED , 217 ITR 337 . THE FACTS IN THE CASE OF DLF UNITED LIMITED (SUPRA) WERE THAT THE DLF LIMITED PURCHASED AGRICULTURAL LA ND FROM VARIOUS FARMERS IN THE EAR AND SHOWN EXEMPTION, HOWEVER, THE AO TREATED THE SALE CONSIDERATION AS REVENUE RECEIPT. UPTO THE STAGE OF TRIBUNAL, THE ORDER OF AO WAS CONFIRMED, HOWEVER, THE HON BLE DELHI HIGH COURT HELD THAT THE LAND IN QUESTION WAS O F AGRICULTURAL LAND AND THEREFORE, ANY RECEIPT ON ACCOUNT OF SALE OF AGRICULTURAL LAND IS NOT TAXABLE. THIS DECISION OF THE HON BLE DELHI HIGH COURT HAS BEEN CONFIRMED BY THE HON BLE APEX COURT, WHEREBY IT HAS BEEN HELD THAT EVEN AND OTHERWISE WE SEE NO ME RIT IN THE SPECIAL LEAVE PETITION AND THE SAME ARE ACCORDINGLY DISMISSED ON THE GROUND OF DELAY AS WELL AS ON MERITS. COP IES OF THESE ORDERS ARE PLACED IN THE COMPILATION. 1 9 . THIS ISSUE HAS ALSO BEEN CONSIDERED IN VARIOUS OTHER DECISION I.E. IN CASE OF HI NDUSTAN INDUSTRIAL RESOURCES LIMITED VS. ACIT, REPORTED IN 335 ITR 77 , WHEREIN IT WAS HELD THAT IN VIEW OF THE FINDING OF THE TRIBUNAL THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AT THE TIME OF PURCHASE BY THE ASSESSEE AS ALSO AT THE TIME OF ACQUISITIO N, THE LAND WAS CLEARLY AGRICULTURAL LAND IRRESPECTIVE OF THE FACT THAT THE ASSESSEE INTENDED TO USE THE LAND FOR INDUSTRIAL PURPOSES AND DI D NOT CARRY OUT ANY AGRICULTURAL OPERATIONS AND, THEREFORE, NO CAPITAL GAINS COULD BE CHARGED ON ACQUISITION THEREOF UNDER THE LAND ACQUISITION ACT, 1894. WHILE HOLDING SO, THE DECISION IN THE CASE OF DLF UNITED LIMITED (SUPRA) , WAS TAKEN INTO CONSIDERATION BY THE H O N BLE DELHI HIGH COURT. 20 . IN CASE OF SHRI SATYANARAYAN O. AGRAWAL VS. ADCIT, DECIDED IN ITA NO. 169/NAG /2012 FOR ASSESSMENT YEAR 2007 - 08, SIMILAR VIEW ALSO WAS TAKEN FOLLOWING THE VARIOUS CASE LAWS AND ULTIMATELY IT WAS HELD THAT THE CONSIDERATION RECEIVED OUT OF SALE OF AGRICULTURAL LAND WAS NOT TAXABLE. 2 1 . SINCE THIS ISSUE HAS ALREADY BEEN DECIDED BY VA RIOUS B ENCHES OF THE TRIBUNAL AND THE H ON BLE BOMBAY HIGH COURT AS WELL AS THE HON BLE DELHI HIGH COURT AND THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF DLF UNITED LIMITED (SUPRA) , WHICH HAS BEEN CONFIRMED BY THE HON BLE SUPREME COURT, THERE FORE, WE H O LD THAT ANY CONSIDERATION RECEIVED OUT OF SALE OF AGRICULTURAL LAND, CANNOT BE TREATED AS BUSINESS INCOME FOR THE PURPOSE OF CAPITAL GAIN OR FOR THE PURPOSE OF BUSINESS INCOME, WHATEVER THE CASE MAY BE. IN VIEW OF THE AFORESAID FACTS AND CIRCUMS TANCES OF THE CASE, WE ALLOW THIS GROUND IN FAVOUR OF ALL THE ASSESSEES. 8 . SINCE FACTS ARE SIMILAR, THEREFORE, FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL, WE ALLOW THIS GROUND OF THE ASSESSEE BY HOLDING THAT THE ITA NO. 1 63 / NAG/2012 7 DISTANCE OF 8KM HAS TO BE MEASURED THRO UGH APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD ON HORIZONTAL PLANE AND IF THROUGH APPROACH ROAD THE DISTANCE IS TAKEN, THEN IT IS SEEN THAT THE DISTANCE IS BEYOND 8 KM FROM THE MUNICIPAL LIMIT . A CCORDINGLY, WE H O LD THAT NO CAPITAL GAIN IS PAYABLE AS THE AGRICULTURAL LAND SOLD IS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) (III)(B) OF THE ACT. 9 . RESULTANTLY, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF APR. 2013. SD/ - SD/ - (D.KARUNAKAR A R AO) (R.K.GUPTA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 0 3 / 04 / 2013 . PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) ,NAGPUR . 4. CIT 5. DR, ITAT, MUMBAI /NAG PUR 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. 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