Income-tax Officer, V. Smt. Preeti Vasudev Lund, Pune

ITA 197/PUN/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88845 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Capital asset; Rule of consistency; Additional evidence; Competent authority
• Section: 143(3); 2(14); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.197/PN/2014 (ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER, WARD 5(4), PUNE. . APPELLANT VS. SMT. PREETI VASUDEV LUND, AMBEDKAR CHOWK, DAUND, PUNE 413 801. PAN : AAJPL7483M . RESPONDENT ITA NO.198/PN/2014 (ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER, WARD 5(4), PUNE. . APPELLANT VS. SHRI NIKHIL VASUDEO LUND, AMBEDKAR CHOWK, DAUND, PUNE 413 801. PAN : ADCPL2929C . RESPONDENT ITA NO.199/PN/2014 (ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER, WARD 5(4), PUNE. . APPELLANT VS. SHRI VIVEK LALCHAND LUND, SHIVAJI CHOWK, DAUND, PUNE 413 801. PAN : AAJPL7503L . RESPONDENT DEPARTMENT BY : SHRI B. C. MALAKAR ASSESSEE BY : SHRI SUHAS BORA DATE OF HEARING : 13-01-2015 DATE OF PRONOUNCEMENT : 28-01-2015 ORDER PER G. S. PANNU, AM THE CAPTIONED THREE APPEALS HAVE BEEN PREFERRED BY THE REVENUE AND SINCE COMMON ISSUES ARE INVOLVED THEY HAVE BEEN CLU BBED AND HEARD ITA NOS.197 TO 199/PN/2014 TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED F OR THE SAKE CONVENIENCE AND BREVITY. 2. ITA NO.197/PN/2014 IN THE CASE OF SMT. PREETI VA SUDEV LUND IS TAKEN AS THE LEAD CASE. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-III, PUNE DATE D 08.11.2013 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 08.11.2011 PAS SED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2009-10. 3. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE LAW AND FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N CONSIDERING THE PROPERTY BEYOND 8KM FROM DAUND MUNI CIPALITY LIMITS WHEREAS THE TOWN PLANNING DEPARTMENT AUTHORITIES HAS CLARIF IED THAT THE PROPERTY WAS AT A DISTANCE OF BETWEEN 6380 MTRS TO 7360 MTRS I.E . 7.3 KM FROM THE DAUND MUNICIPALITY LIMITS, IGNORING THE FACTS THAT THEY A RE INVOLVED IN THE DECISION MAKING OF THE URBANIZATION PROCESS AND COMPETENT AU THORITIES IN REGARDS TO DISTANCE AND MEASUREMENT. 3. THE RELIANCE PLACED ON MANGALAM INORGANIC PRIVAT E LIMITED IS MISPLACED AS THE SAME HAS BEEN RENDERED IN CONNECTI ON WITH SECTION 80HHA OF THE INCOME TAX ACT, 1961. 4. FOR THESE AND SUCH ABOVE OTHER GROUNDS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE LEARNED C IT (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. BRIEFLY PUT, THE RELEVANT FACTS ARE AS FOLLOWS. THE RESPONDENT-ASSESSEE IS A CO-OWNER OF LAND LOCATED AT SURVEY NOS.99/1/1 TO 99/1/8 AND SURVEY NOS.107/1/1 TO 107/1/4, VILLAGE- PANDHAREWADI, TAL. - DAUND, DISTT.- PUNE. THE ASSESSEE ALONG WITH THE OTHER CO-OWNERS SOLD THE PR OPERTY TO M/S SUGUNA POULTRY FARM LTD. DURING THE YEAR UNDER CONSIDERATI ON FOR A TOTAL CONSIDERATION OF RS.4,88,28,750/-. THE SAID PROPERTY WAS STATED TO HAVE BEEN PURCHASED IN THE YEAR 1989 AT THE COST OF RS.2,86,160/-. IN THE RETURN OF INCOME FILED, ASSESSEE CLAIMED THAT HER SHARE OF CAPITAL GAIN OF RS.64,16,250/- WAS EXEMPT AS THE SAID LAND WAS AT A DISTANCE OF 15 KMS FROM T HE LIMITS OF DAUND ITA NOS.197 TO 199/PN/2014 MUNICIPALITY. IN THE RETURN OF INCOME ASSESSEE CLA IMED THAT IN TERMS OF SECTION 2(14)(III)(B) OF THE ACT THE SAID PROPERTY WAS NOT A CAPITAL ASSET BEING AN AGRICULTURAL LAND WHICH WAS LOCATED AT A DISTANCE E XCEEDING 8 KMS FROM THE MUNICIPAL LIMITS. THE ASSESSING OFFICER SHOW-CAUSE D THE ASSESSEE AS TO WHY THE GAIN ON SALE OF THE IMPUGNED PROPERTY BE NOT BE TAXED UNDER THE HEAD CAPITAL GAINS ON THE GROUND THAT THE SAID PROPERT Y WAS WITHIN A DISTANCE LESS THAN 8 KMS FROM THE LOCAL LIMITS OF THE MUNICIPALIT Y. 5. IN THE CONTEXT OF THE AFORESAID CONTROVERSY, IT IS TO BE NOTED THAT SECTION 2(14)(III)(B) OF THE ACT EXCLUDES AN AGRICULTURAL L AND FROM THE MEANING OF A CAPITAL ASSET IF SUCH A LAND IS SITUATED AT A DISTA NCE OF MORE THAN 8 KMS FROM THE LOCAL LIMITS OF A MUNICIPALITY. THE CASE OF TH E ASSESSEE IS THAT THE SAID PROPERTY IS LOCATED AT A DISTANCE OF MORE THAN 8 KM S FROM THE LOCAL MUNICIPAL LIMITS OF DAUND MUNICIPALITY AND THEREFORE THE SAID PROPERTY DOES NOT FALL WITHIN THE MEANING OF EXPRESSION CAPITAL ASSET AND THERE FORE ANY GAIN ARISING THEREFROM IS EXEMPT FROM TAX. 6. THE ASSESSING OFFICER DISAGREED WITH THE ASSESSE E WITH RESPECT TO THE DISTANCE OF THE IMPUGNED PROPERTY FROM THE LIMITS O F THE DAUND MUNICIPALITY ON THE BASIS OF A COMMUNICATION OF TALATHI OF PANDHARE WADI PANCHAYAT IN TERMS OF WHICH IT WAS STATED THAT THE PROPERTY WAS LOCATE D APPROXIMATELY 7 KMS FROM THE DAUND MUNICIPALITY. HOWEVER, SUBSEQUENTLY THE TALATHI CLARIFIED THAT THE CORRECT DISTANCE 12 KMS AND NOT 7 KMS. THE ASSESSI NG OFFICER MADE FURTHER VERIFICATION FROM THE TOWN PLANNING DEPARTMENT IN V IEW OF THE CONTRADICTORY VERSIONS OF THE TALATHI. AS PER THE COMMUNICATION FROM THE TOWN PLANNING DEPARTMENT, THE ASSESSING OFFICER SHOW-CAUSED THE A SSESSEE AS TO WHY THE PROPERTY BE NOT BE TAKEN TO BE SITUATED AT A DISTAN CE OF LESS THAN 8 KMS FROM THE LIMITS OF THE DAUND MUNICIPALITY. ITA NOS.197 TO 199/PN/2014 7. IN RESPONSE, ASSESSEE FURNISHED A CERTIFICATE FR OM THE PWD EXECUTIVE ENGINEER, DAUND STATING THAT THE DISTANCE BETWEEN D AUND TO THE SUBJECT- PROPERTY WAS OVER 12 KMS. THE ASSESSING OFFICER DI SAGREED WITH THE ASSESSEE AND OBSERVED THAT SINCE THE TOWN PLANNING AUTHORITIES ARE INVOLVED IN THE DECISION MAKING OF THE URBANIZATION PROCESS AND ARE COMPETENT AUTHORITY WITH REGARD TO DISTANCE AND MEASUREMENT T HEREOF, THEIR CERTIFICATE DATED 26.08.2011 WAS TO BE RELIED UPON AND NOT THE CERTIFICATE OF PWD EXECUTIVE ENGINEER, DAUND FURNISHED BY THE ASSESSEE . THEREFORE, THE ASSESSING OFFICER PROCEEDED TO HOLD, BASED ON THE C OMMUNICATION OF THE TOWN PLANNING AUTHORITY, THAT THE DISTANCE BETWEEN SUBJECT-PROPERTY AND THE MUNICIPAL LIMITS OF DAUND MUNICIPALITY WAS LESS THA N 8 KMS AND ACCORDINGLY HE REJECTED ASSESSEES CLAIM FOR EXEMPTION. 8. IN APPEAL BEFORE THE CIT(A), ASSESSEE REITERATED THAT THE DISTANCE BETWEEN THE SUBJECT-PROPERTY AND THE LIMITS OF THE DAUND MUNICIPALITY WAS MORE THAN 8 KMS. BY WAY OF AN ADDITIONAL EVIDENCE, ASSESSEE ALSO FURNISHED A CLARIFICATION ISSUED BY THE TOWN PLANNING DEPARTM ENT TO THE EFFECT THAT THE DISTANCE BETWEEN THE SUBJECT-PROPERTY AND THE MUNIC IPAL LIMITS OF DAUND MUNICIPALITY WAS MORE THAN 8 KMS. IN TERMS OF THE SAID EVIDENCE, THE ASSESSEE ALSO CONTENDED THAT THE TOWN PLANNING AUTH ORITY HAD CLARIFIED ITS EARLIER COMMUNICATION DATED 26.08.2011; WHEREBY, IT WAS CLARIFIED THAT THE BASIS TAKEN EARLIER FOR MEASUREMENT OF DISTANCE WAS THE AERIAL DISTANCE. ASSESSEE CONTENDED THAT THE MEASUREMENT OF DISTANCE BY AERIAL DISTANCE WAS NOT PROPER AND THAT FOR THE PURPOSES OF SECTION 2(1 4)(III)(B) OF THE ACT DISTANCE HAS TO BE MEASURED ON THE BASIS OF THE ROAD DISTANC E. THE CIT(A) ADMITTED SUCH CLARIFICATION LETTER OF THE TOWN PLANNING DEPA RTMENT DATED 03.12.2011 STATING THAT THE DISTANCE OF 6.8 TO 7.6 KMS MENTION ED IN THE EARLIER LETTER DATED 26.08.2011 WAS IN TERMS OF AERIAL DISTANCE. THE CI T(A) ALSO TOOK INTO CONSIDERATION THE LETTER OF THE PWD EXECUTIVE ENGIN EER, DAUND DATED 22.11.2011, WHICH SPECIFICALLY MENTIONED THAT THE D ISTANCE FROM DAUND ITA NOS.197 TO 199/PN/2014 MUNICIPALITY TO THE IMPUGNED PROPERTY WAS 8.8 KMS. THE CIT(A) ADMITTED THE SAID EVIDENCE AND ALSO CONSIDERED THE FOLLOWING EVI DENCES : (A) REQUISITE EVIDENCES IN THE FORM OF DISTANCE CERTIFICATE ISSUE D BY THE TALATHI OF PANDHAREWADI GRAM PANCHAYAT (CERTIFYING THE DISTANC E OF THE PROPERTY FROM MUNICIPAL LIMITS TO BE 12 KMS); AND, (B) CERTIFICAT E OF THE PWD EXECUTIVE ENGINEER, DAUND (CERTIFYING DISTANCE OF PANDHAREWAD I FROM DAUND TO BE 12 KMS BY ROAD). 9. ON THE BASIS OF THE AFORESAID EVIDENCES, CIT(A) HELD THAT THE DISTANCE HAS TO BE MEASURED IN TERMS OF THE APPROACH ROAD AN D NOT THE AERIAL DISTANCE BY FOLLOWING THE JUDGEMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SATINDER PAL SINGH, 229 CTR 82 (P&H ). ON THE SAID BASIS, THE CIT(A) CONCLUDED THAT CONSIDERING THE DISTANCE MEAS URED IN TERMS OF APPROACH ROAD THE SUBJECT-PROPERTY WAS SITUATED AT A DISTANCE EXCEEDING 8 KMS FROM THE MUNICIPAL LIMITS OF DAUND MUNICIPALITY AND THEREFORE THE SAID PROPERTY DID NOT FALL WITHIN THE EXPRESSION OF CAP ITAL ASSET IN TERMS OF SECTION 2(14)(III)(B) OF THE ACT. AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 10. AT THE TIME OF HEARING, THE LD. DEPARTMENTAL RE PRESENTATIVE HAS MERELY REITERATED THE ARGUMENTS OF THE ASSESSING OFFICER C ONTAINED IN THE ASSESSMENT ORDER WHICH WE HAVE ALREADY NOTED IN PARAS 6 AND 7 ABOVE AND ARE NOT BEING REPEATED FOR THE SAKE OF BREVITY. THE LD. DEPARTME NTAL REPRESENTATIVE HAS NOT CONTROVERTED ANY OF THE FACTUAL FINDINGS ARRIVE D AT BY THE CIT(A) OR THE EVIDENCES RELIED UPON BY THE CIT(A) TO HOLD THAT TH E DISTANCE OF THE SUBJECT- PROPERTY FROM THE MUNICIPAL LIMITS OF DAUND MUNICIP ALITY WAS IN EXCESS OF 8 KMS. 11. ON THE OTHER HAND, THE LD. REPRESENTATIVE FOR T HE RESPONDENT-ASSESSEE HAS FURNISHED A PAPER BOOK WHICH, INTER-ALIA, CONTA INS THE EVIDENCES AND OTHER ITA NOS.197 TO 199/PN/2014 MATERIAL RELIED UPON BY THE CIT(A) IN COMING TO HER CONCLUSION THAT THE SUBJECT- PROPERTY WAS NOT A CAPITAL ASSET IN TERMS OF SECT ION 2(14)(III)(B) OF THE ACT. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN THIS CASE, ASSESSEE HAD SOLD HER AGRICULTURAL LAND AND THE GAI N THEREOF WAS CLAIMED AS EXEMPT. ACCORDING TO THE ASSESSEE, THE AGRICULTURA L LAND DID NOT FALL WITHIN THE MEANING OF EXPRESSION CAPITAL ASSET BECAUSE OF SE CTION 2(14)(III)(B) OF THE ACT. THE ASSESSING OFFICER DENIED THE EXEMPTION AN D SOUGHT TO TAX THE GAIN UNDER THE HEAD CAPITAL GAINS ON THE GROUND THAT T HE DISTANCE OF THE SUBJECT- PROPERTY FROM THE MUNICIPAL LIMITS OF DAUND MUNICIP ALITY WAS IN EXCESS OF 8 KMS AND THEREFORE IT DID NOT MEET WITH THE REQUIREM ENTS OF SUB-CLAUSE (B) OF CLAUSE (III) OF SUB-SECTION (14) OF SECTION 2 OF TH E ACT. THE RELEVANT PORTION OF SECTION 2(14)(III) OF THE ACT IS REPRODUCED AS UNDE R :- 2(14) CAPITAL ASSET MEANS PROPERTY OF ANY KI ND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINES S OR PROFESSION, BUT DOES NOT INCLUDE (I) . (II) . [(III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND S ITUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURI SDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNI CIPAL CORPORATION, NOTIFIED AREA COMMITTED, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONME NT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THO USAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR ; OR (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MO RE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALI TY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CE NTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF THAT AREA AND OTHER RELEVANT C ONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFIC IAL GAZETTE;] 13. THE CIT(A) HAS COME TO CONCLUDE THAT THE SUBJEC T-PROPERTY IS AT A DISTANCE OF 8.8 KMS FROM THE MUNICIPAL LIMITS OF DA UND MUNICIPALITY, BASED ON THE LETTER OF THE PWD EXECUTIVE ENGINEER, DAUND DAT ED 22.11.2011. TO THE ITA NOS.197 TO 199/PN/2014 CONTRARY, THE ASSESSING OFFICE RELIED UPON A COMMUN ICATION OF THE TOWN PLANNING DEPARTMENT DATED 26.08.2011 WHEREIN IT WAS STATED THAT THE PROPERTY IS AT A DISTANCE OF BETWEEN 6380 MTRS. TO 7360 MTRS . FROM THE DAUND MUNICIPALITY LIMITS. BEFORE THE CIT(A), IT WAS SUB MITTED, ON THE BASIS OF THE CLARIFICATION ISSUED BY THE TOWN PLANNING DEPARTMEN T DATED 03.12.2011, THAT THE DISTANCE OF 6.38 TO 7.36 KMS MENTIONED EARLIER WAS IN TERMS OF AERIAL DISTANCE. IN OUR CONSIDERED OPINION, HAVING REGARD TO THE JUDGEMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH (SUPRA), THE DISTANCE OF THE AGRICULTURAL LAND IN Q UESTION HAS TO BE MEASURED IN TERMS OF APPROACH ROAD AND NOT AERIAL DISTANCE. TH E RELEVANT DISCUSSION IN THE ORDER OF THE HONBLE HIGH COURT IS AS UNDER :- A PERUSAL OF THE AFORESAID PROVISION SHOWS THAT 'C APITAL ASSET' WOULD NOT INCLUDE ANY AGRICULTURAL LAND WHICH IS NOT SITU ATED IN ANY AREA WITHIN SUCH DISTANCE AN MAY BE SPECIFIED IN THIS BEHALF BY A NO TIFICATION IN THE OFFICIAL GAZETTE, WHICH MAY BE ISSUED BY THE CENTRAL GOVERNM ENT. THE MAXIMUM DISTANCE PRESCRIBED BY S. 2(14)(III)(B) OF THE. ACT WHICH MAY BE INCORPORATED IN THE NOTIFICATION COULD NOT BE MORE THAN 8 KMS. FROM THE LOCAL LIMITS OF MUNICIPAL COMMITTEE OR CANTONMENT BOARD ETC. THE NOTIFICATION HAS TO TAKE INTO ACCOUNT THE EXTENT OF, AND SCOPE FOR URBANIZATION OF THAT A REA AND OTHER RELEVANT CONSIDERATIONS. THE RECKONING OF URBANIZATION AS A FACTOR FOR PRESCRIBING THE DISTANCE IS OF SIGNIFICANT WHICH WOULD YIELD TO THE PRINCIPLE OF MEASURING DISTANCE IN TERMS OF APPROACH ROAD RATHER THAN BY S TRAIGHT LINE ON HORIZONTAL PLANE. IF PRINCIPLE OF MEASUREMENT OF DISTANCE IS C ONSIDERED STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROW'S FLIGH T THEN IT WOULD HAVE NO RELATIONSHIP WITH THE STATUTORY REQUIREMENT OF KEEP ING IN VIEW THE EXTENT OF URBANIZATION. SUCH A COURSE WOULD BE ILLUSORY. IT I S IN PURSUANCE OF THE AFORESAID PROVISION THAT NOTIFICATION NO.9447 DT. 6 TH JAN. 1994 HAS BEEN ISSUED BY THE CENTRAL GOVERNMENT. IN RESPECT OF THE STATE OF PUNJAB, AT ITEM NO.18 THE SUB-DIVISION KHANNA HAS BEAN LISTED AT SE RIAL NO.19. IT HAS INTER- ALIA, BEEN SPECIFIED THAT AREA UPTO 2 KMS. FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS HAS TO BE REGARDED OTHER THAN AGRICULTUR AL LAND. ONCE THE STATUTORY GUIDANCE OF TAKING INTO ACCOUNT THE EXTENT AND SCOP E OF URBANIZATION OF THE AREA HAS TO BE RECKONED WHILE ISSUING ANY SUCH NOTI FICATION 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 HORIZ ONTAL PLANE OR AS PER CROW'S FLIGHT BECAUSE ANY MEASUREMENT BY CROW'S FLI GHT IS BOUND TO IGNORE THE URBANIZATION WHICH HAS TAKEN PLACE. MOREOVER, THE J UDGMENT OF THE MUMBAI BENCH APPEARS TO HAVE ATTAINED FINALITY. KEEPING IN VIEW THE PRINCIPLE OF CONSISTENCY AS LAID DOWN IN RADHASOAMI SATSANG V. C IT [1991] 100 CTR (SC) 267 : (1992) 193 ITR 321 (SC), WE ARE OF THE VIEW T HAT THE OPINION EXPRESSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY LEGAL INFI RMITY WARRANTING INTERFERENCE OF THIS COURT. ACCORDINGLY QUESTION NO. (1) IS ANSW ERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE BY UPHOLDING THE ORDE R OF THE TRIBUNAL. ITA NOS.197 TO 199/PN/2014 14. THERE IS NO DECISION TO THE CONTRARY BROUGHT TO OUR NOTICE AND THEREFORE IT HAS TO BE HELD THAT THE DISTANCE PRESCRIBED BY S ECTION 2(14(III)(B) OF THE ACT HAS TO BE MEASURED IN TERMS OF APPROACH ROAD AND NO T BY AERIAL DISTANCE. THEREFORE, ON THIS ASPECT, WE UPHOLD THE ACTION OF THE CIT(A). 15. FACTUALLY SPEAKING, IF THE DISTANCE OF THE SUBJ ECT-PROPERTY FROM THE MUNICIPAL LIMITS OF DAUND MUNICIPALITY IS SEEN, THE ROAD DISTANCE IS 8.8 KMS AS STATED BY THE PWD EXECUTIVE ENGINEER, DAUND. THERE FORE, THE AFORESAID MATERIAL RELIED UPON BY THE CIT(A) TO HOLD THAT THE CLAIM OF THE ASSESSEE IS IN COMPLIANCE WITH SECTION 2(14)(III)(B) OF THE ACT CA NNOT BE FAULTED. WE MAY ALSO MENTION HERE THAT THE ADDITIONAL EVIDENCE AND MATER IAL ADMITTED BY THE CIT(A) AT THE STAGE OF APPELLATE PROCEEDINGS WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS REMAND REPORT. THE CIT(A) IN PARA 3.3 OF H ER ORDER HAS DISCUSSED THE CONTENTS OF THE REMAND REPORT SUBMITTED BY THE ASSE SSING OFFICER WHEREIN IT IS NOTED AS UNDER :- THE ASSESSING OFFICER HAS ALSO STATED THAT THE LET TER DATED 22.11 2011 OF THE PWD EXECUTIVE ENGINEER, DAUND CLARIFYING THA T THE DISTANCE BETWEEN THE MUNICIPAL LIMITS OF DAUND TO THE IMPUGNED PROPE RTY WAS 8.8. KMS. SHOULD BE TAKEN AS ONLY AN INDICATOR IN VIEW OF THE CLEAR VARIATION IN THE DISTANCE STATED BY THE TOWN PLANNER. 16. THE AFORESAID OBSERVATION OF THE CIT(A) REFERS TO THE STAND OF THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS TO THE EFFECT THAT THE LETTER OF PWD EXECUTIVE ENGINEER, DAUND CLARIFYING THE DISTAN CE BETWEEN SUBJECT- PROPERTY AND THE MUNICIPAL LIMITS, DAUND WAS IN EXC ESS OF 8 KMS IS NOT DISPUTED. 17. CONSIDERING THE MATERIAL AND EVIDENCE ON RECORD AND THE LEGAL POSITION DISCUSSED ABOVE, WE FIND THAT THE CIT(A) MADE NO MI STAKE IN CONCLUDING THAT ASSESSEE WAS JUSTIFIED IN AVAILING THE BENEFIT OF E XEMPTION AVAILABLE IN TERMS OF SECTION 2(14)(III)(B) OF THE ACT IN THE CONTEXT OF THE SAID SALE OF AGRICULTURAL LAND. ITA NOS.197 TO 199/PN/2014 THUS, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) AND THE REVENUE FAILS ON THIS ASPECT. 18. IN THE RESULT, THE APPEAL OF THE REVENUE VIDE I TA NO.197/PN/2014 IN THE CASE OF SMT. PREETI VASUDEV LUND IS DISMISSED. 19. IN SO FAR AS, THE OTHER TWO APPEALS OF THE REVE NUE IN ITA NO.198/PN/2014 (SHRI NIKHIL VASUDEO LUND) AND ITA N O.199/PN/2014 (SHRI VIVEK LALCHAND LUND) FOR THE ASSESSMENT YEAR 2009-1 0 RESPECTIVELY ARE CONCERNED, THE ISSUE INVOLVED IS IDENTICAL AND OUR DECISION IN ITA NO.197/PN/2014 (SMT. PREETI VASUDEV LUND) SHALL APP LY MUTATIS-MUTANDIS IN THESE APPEALS ALSO. ACCORDINGLY, ITA NO.198/PN/201 4 (SHRI NIKHIL VASUDEO LUND) AND ITA NO.199/PN/2014 (SHRI VIVEK LALCHAND L UND) ARE ALSO HEREBY DISMISSED. 20. RESULTANTLY, THE CAPTIONED THREE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 28 TH JANUARY, 2015. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 28 TH JANUARY, 2015. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-III, PUNE; 4) THE CIT-III, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE