Shri Umashankar B Thakur, Nagpur V. Income Tax Officer Ward-5(3), Nagpur

ITA 209/NAG/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84670 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 08-06-2012
• Court: TRIBUNAL
• Department Lawyers: RAMESH DAWANDE
• Assessee Lawyers: C J THAKAR MR S C THAKAR
• Keywords: Capital asset; Rule of consistency; Earning of tax free income
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER .209/NAG/2012 ( AY: 2007 - 2008 ) SHRI UMASHANKAR B. THAKUR, NEW SHUKRAWARI, NAGPUR 440 032. / VS. INCOME TAX OFFICER, WARD - 5(3), GROUND FLOOR, SARAF CHAMBER, NAGPUR 440 001. ./ PAN: AAQPT5746C ( / APPELLANT) .. ( / RESPONDENT ) .235/NAG/2012 ( AY: 2007 - 2008 ) SHRI SURESHSINGH U THAKUR, NEW SHUKRAWARI, NAGPUR 440 032. / VS. INCOME TAX OFFICER, WARD - 6(1), 3 RD FLOOR, AAYAKARBHAVAN, TELANGKHEDI ROAD, CIVIL LINES, NAGPUR 440001. ./ PAN: ALHPT9583D ( / APPELLANT) .. ( / RESPONDENT ) .236/NAG/2012 ( AY: 2007 - 2008 ) SHRI RAMESH SINGH U THAKUR, NEW SHUKRAWARI, NAGPUR 440 032. / VS. INCOME TAX OFFICER, WARD - 6(1), 3 RD FLOOR, AAYAKARBHAVAN, TELANGKHEDI ROAD, CIVIL LINES, NAGPUR 440001. ./ PAN: AL HP T9552E ( / APPELLANT) .. ( / RESPONDENT ) .237/NAG/2012 ( AY: 2007 - 2008 ) SHRI GANESH SINGH U. THAKUR, NEW SHUKRAWARI, NAGPUR 440 032. / VS. INCOME TAX OFFICER, WARD - 5(3), GROUND FLOOR, SARAF CHAMBER, NAGPUR 440 001. ./ PAN: AEGPT6202B ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI C.J. THAKAR& MR. S.C. THAKAR / REVENUEBY : SHRI RAMESH DAWANDE , SR. DR / DATE OF HEARING : 01.09.2014 / DATE OF PRONOUNCEMENT : 03 .09.2014 2 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE 4 APPEALS UNDER CONSIDERATION. ALL THE SE APPEALS ARE FILED BY THE ASSESSEES AGAINST THE SEPARATE ORDERS OF THE CIT (A) - II, NAGPUR COMMONLY DATED 25.1.2012 INVOLVING THE ASSESSMENT YEAR 2007 - 08. SINCE, THE ISSUE RAISED IN ALL THE 4 APPEALS IS IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE AND GROUND WISE ADJUDICATION IS GIVEN IN THE SUCCEEDING PARAGRAPHS OF THIS ORDER. 2. FIRSTLY, WE SHALL TAKE UP THE APPEAL ITA NO.209/NAG/2012 , WHICH IS FILED BY THE ASSESSEE ON 8.6.2012 AGAINST THE SAID ORDER OF THE CIT (A) - II, NAGPUR DATED 25.1.2012 . 3. IN THIS APPEAL, ASSESSEE ORIGINALLY RAISED 11 GROUNDS. DURING THE PROCEEDINGS BEFORE US, ASSESSE E FILED THE REVISED GROUND OF APPEAL SUMMARIZING THAT THE CIT (A) IS NOT JUSTIFIED IN HOLDING THAT T HE DISTANCE OF T HE IMPUGNED LAND IS 8 KMS BY ADO PTING AERIAL METHOD OF MEASUREMENT I.E., AS CROW FLIGHT . THE SAID REVISED GROUND READS AS UNDER: ASSESSEES AGRICULTURAL LAND WAS BEYOND 8 KMS BY ROAD DISTANCE FROM NAGPUR MUNICIPAL CORPORATION LIMIT AND HENCE, IT WAS NOT A CAPITAL ASSET AND NOT LIABLE TO TAX . HOWEVER, LD CIT (A) ERRED IN HOLDING THAT THE DISTANCE IS TO BE MEASURED AS CROW FLIES AND ACCORDING TO THAT METHOD THE DISTANCE WAS EIG HT KMS AND HENCE TAXABLE TO CAPITAL GAINS. THE SAID DECISION OF LD CIT (A) IS ERRONEOUS. 4. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND OWNS 5.47 ACRES OF LAND SITUATED AT VILLAGE PANJARI (LODHI), KHASRA NO.44/1 OF MOUZADHUTI AREA 2.21 HECTORS (5.47 ACRES) PSK NO.73, TAHSIL NAGPUR RURAL, DISTRICT NAGPUR. AS PER THE ASSESSEE, THE DISTANCE OF THE SAID LAND IS BEYOND 8 KMS FROM THE LOCAL LIMITS OF NAGPUR MUNICIPAL CORPORATION. THIS CLAIM IS SUPPORTED BY THE LETTERS F ROM THE CONCERNED REVENUE AUTHORITIES OF STATE GOVERNMENT. THUS, THE SALE PROCEEDS EARNED BY THE ASSESSE ON SALE OF THIS LAND WAS CONSIDERED AS EXEMPT INCOME , WHICH IS NOT TAXABLE. IN THIS REGARD, ASSESSEE RELIED ON THE LEGAL PROVISIONS OF SECTION 2(14)( III)(B) RELATING TO CAPITAL ASSET . DURING THE ASSESSMENT PROCEEDINGS, AO HELD THAT THE SAID LAND IS NOT LOCATED BEYOND 8 KMS FROM THE NAGPUR 3 MUNICIPAL CORPORATION LIMITS AND THE SAID MEASUREMENT IS TAKEN AERIALLY AS CROW S FLIGHT . EX CONSEQUENTI , IT IS THE CASE OF THE AO THAT THE SAID TRANSACTION ATTRACTS THE PROVISIONS RELATING TO THE CAPITAL GAINS. EVENTUALLY, AO SUBJECTED THE SAME TO CAPITAL GAINS AND THE ASSESSED INCOME WAS DETERMINED AT RS. 37,94,465/ - AGAINST THE RETURNED INCOME OF RS. 1,4 8,333/ - . AGGRIEVED WITH THE DECISION OF THE AO, ASSESSE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 5. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) CONFIRMED THE ORDER OF THE AO. WHILE DISMISSING THE APPEAL OF THE ASSESSEE, CIT (A) OPINED THAT WHEN THE PROVISIONS DO NOT SPECIFY THE METHOD OF MEASUREMENT OF DISTANCE, THEN THE DISTANCE HAS TO BE MEASURED ON A STRAIGHT LINE BASIS . PARA 13.4 OF THE CIT (A)S O RDER IS RELEVANT IN THIS REGARD. IN THE ABOVE BACKGROUND OF FACTS, ASSESSEE FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUND. 6. DURING THE PROCEEDINGS BEFORE US, SHRI C.J. THAKAR, LD COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET , FILED COMPILATION OF THE DECISIONS AND MENTIONED THAT THE ISSUE UNDER CONSIDERATION STANDS COVERED IN FAVOUR OF THE ASSESSEE. FURTHER, HE MENTIONED THAT THER E IS NO DISPUTE ON THE DISTANCE IN KMS AS MENTIONED IN THE ORDERS. ACCORDING TO THE LD CO UNSEL S , IF THE MEASUREMENT IS TAKEN AERIALLY, THE DISTANCE IS BELOW 8 KMS AND OTHERWISE, THE DISTANCE IS BEYOND 8 KMS. HOWEVER, AS PER THE LD COUNSELS, THE CORE ISSUE TO BE DECIDED RELATES TO WHETHER THE MEASUREMENT SHOULD BE TAKEN BY THE STRAIGHT LINE ME ASUREMENT AS THE CROWS FLIES OR BY NEAREST APPROACH ROAD. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ORDER OF THE TRIBUNAL IN THE CASES OF SAJAY NAGORAO PAIDLEWAR VS. ACIT VIDE ITA NO.112/NAG/2012 FOR THE AY 2009 - 2010; NITISH RA MESH CHANDRA CHORDIA VS. ACIT VIDE ITA NO.113/NAG/2013 FOR THE AY 2009 - 2010 AND SHAISHIR S DIOTE VS. ACIT VIDE ITA NO.147/NAG/2012 FOR THE AY 2009 - 2010, DATED 22.03.2013 AND BROUGHT OUR ATT ENTION TO PARAS 9 TO 15 OF TRIBUNALS ORDER AND MENTIONED THAT THE ITAT HAS DISCUSSED THE PROVISIONS OF SECTION 2(14)(III)(B) AND CONSIDERED THE JUDGMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SATINDER PAL SINGH REPORTED IN 229 CIT 82 (P&H) AND ALSO VARIOUS OTHER DECISIONS OF THE TRIBUNAL SUCH AS LA UKIK DEVELOPERS VS DCIT [2007] 108 TTJ 364 (MUMBAI); ITAT 4 PUNE BENCH DECISION IN THE CASE OF MANGALAM INORGANICS (P) LTD ; ITAT INDORE BENCH DECISION IN THE CASE OF ITO VS. ASHOK SHUKLA VIDE ITA NO.207/INDORE/2012 (AY 2008 - 2009); ITAT AGRA BENCH DECISION IN THE CASE OF ACIT VS. GAURAV KHANDELWAL VIDE ITA NO.195/AGRA/2010; NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. SHAGUN INFRASTRUCTURE PVT LTD VIDE ITA NO.209/NAG/2009 AND OTHERSTO SUPPORT THE VIEW THAT THE DISTANCE OF 8 KMS HAS TO BE MEASURED BY AP PROACH ROAD DISTANCE AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE. FINALLY, LD COUNSEL READ OUT THE CONTENTS OF PARA 15 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) DATED 22.3.2013 , WHEREIN THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE DISTANCE OF 8 KMS HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR CROW S FLIGHT. FURTHER, LD COUNSEL MENTIONED THAT SINCE, THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE, THE SAME S HOULD BE DECIDED ACCORDINGLY. 7. ON THE OTHER HAND, SHRI RAMESH DAWANDE, LD DR FOR THE REVENUE RELIED ON THE ELABORATE ORDERS OF THE AO AS WELL AS THE CIT (A). FURTHER, HE BROUGHT OUR ATTENTION TO THE AMENDED PROVISIONS OF SECTION 2(14)(III) RELATING TO CAPITAL ASSET AND MENTIONED THAT THE PROVISIONS ARE NOW AMENDED AND IT IS THE STATUTORY REQUIREMENT THAT THE DISTANCE HAS TO BE MEASURED AERIALLY ONLY AND NOT BY THE NEAREST APPROACH ROAD. DURING THE REBUTTAL TIME, LD COUNSEL FOR THE ASSESSEE MENTIONED T HAT THE AMENDED PROVISIONS WERE BROUGHT IN BY THE FINANCE ACT 2013 W.E.F., 1.4.2014 AND THEREFORE, THE SAME HAS PROSPECTIVE APPLICATION AND THEY ARE INAPPLICABLE TO THE FACTS OF THE PRESENT CASE. FURTHER, BOTH THE PARTIES MENTIONED THAT THE DECISIONS RELIED ON BY THE TRIBUNAL IN THE CASES OF SAJAY NAGORAO PAIDLEWAR; NITISH RAMESH CHANDRA CHORDIA AND SHAISHIR S DIOTE (SUPRA) REMAINED UNALTERED AND THEREFORE, THE CONCLUS IONS OF THE TRIBUNAL IN THE SAID CASE ARE APPLICABLE, IN PRINCIPLE, TO THE FACTS OF THE PRESENT CASE. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISIONS OF THE TRIBUNAL AND THE RELEVANT MATERI AL PLACED BEFORE US. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THERE IS A NEED FOR PERUSING THE SAID PAR AS FROM 5 TO 15 OF THE TRIBUNALS ORDER IN THE CASES OF SAJAY NAGORAO PAIDLEWAR; NITISH RAMESH CHANDRA CHORDIA AND SHAISHIR S DIOTE (SUPRA), 5 WHEREIN ONE OF US (AM) IS THE PARTY TO THE SAID ORDER. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE FIND I T RELEVANT TO REPRODUCE THE PARA S 9 TO 15 OF THE TRIBUNALS ORDER (SUPRA) WHICH READ 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 IE., ASSESSSEE AND THE DEPARTMENT AND HAVE ALSO PERUSED THE RELEVANT MATERIAL ON RECORD, ON WHICH OUR ATTENTIONS WERE DRAWN. WE HAVE ALSO TAKEN INTO CONSIDERATION THE V ARIOUS CASE LAWS RELIED UPON BY THE LEARNED AR AS WELL AS THE LD 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 SE CTION 2(14) OR NOT HAVE ALREADY BEEN DECIDED BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SATINDER PAL SING (SUPRA). THE DECISION OF THE HNBLE PUNJAB & HARYANA HIGH COURT HAS BEEN CONSISTENTLY FOLLOWED BY VARIOUS BENCHES OF THE TRIBUNAL IN V ARIOUS PART OF THE COUNTRY. ONE OF US HAS ALSO TAKEN INTO CONSIDERING THE ISSUE WHILE SITTING IN JAIPUR BENCHES OF THE TRIBUNAL AND FOUND THAT THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT HAS TO BE FOLLOWED AND THE DISTANCE HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT THROUGH THE CROWS FLIGHT DISTANCE. THE HONBLE PUNJAB & 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(1 4)(III)(B) HAS TO BE MEASURED IN TERMS OF APPROACH ROAD AND NOT BY A STRAIGHT 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 THE LD 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 LD CIT (A) HAS ALSO BEEN CONSIDERED BY THE HONBLE PUNJAB AND HARYANA HIGH COURT AND HAS OBSERVED THAT THE PRINCIPLE OF MEASUREMENT OF DISTANCE IS CONSIDERED AS STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE O R AS PER CROWS FLIGHT THEN IT WOULD HAVE NO RELATI ONSHIP 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 DATE 6 TH JA NUARY, 1994 HAS BEEN ISSUED BY THE CENTRAL GOVERNME NT 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 THE AREA UPTO 2 KMS FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS HAS TO BE REGARDED AS OTHER THAN AGRICULTUR AL LAND. ONCE THE STATOR GUIDANCE OF TAKING INTO ACCOUNT THE EXTENT AND SCOPE OF URBANIZATION OF THE AREA HAS TO RECKONED WHILE ISSUING ANY SUCH NOTIFICATION THEN IT WOULD BE INCONGRUOUS TO THE ARGUMENT OF THE REVENUE THAT THE DISTANCE OF LAND SHOULD BE M EASURED 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. DC IT REPORTED IN (2007) 108 TTJ (MUMBAI) 364, WAS ALSO TAKEN INTO CONSIDERATION BY THE HONBLE PUNJAB & HARYANA HIGH COURT AND FOUND THAT THE DECISION OF THE TRIBUNAL HAS ATTAINED FINALITY. 11. IN CASE OF LAUKIK DEVELOPERS (SUPRA), THE MUMBAI BENCH OF THE TRIBUNAL HAS OBSERVED THAT ONCE THE PRINCIPLE OF MEASURING DISTANCE HAS BEEN SETTLED NAMELY THAT THE DISTANCE OF THE AGRICULTURAL LAND BELONGING TO THE ASSESSEE - RESPONDENT HAS TO BE MEASURED IN TERMS OF BY APPRO ACH ROAD AND NOT BY A STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT. ACCORDINGLY, THE HONBLE PUNJAB AND HARYANA HIGH COURT HELD THAT THE DISTANCE HAS TO BE MEASURED BY APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLA NE OR AS PER CROWS FLIGHT. IN CASE OF LAUKIK DEVELOPERS (SUPRA), THE ASSESSEE DISPUTED THAT THE DISTANCE 6 FOR THE PURPOSE OF SECTION 80IB(10) HAS TO BE MEASURED THROUGH STRAIGHT LINE DISTANCE ON HORIZONTAL PLACE 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 DISTANCE OR STRAIGHT LINE DISTANCE IS COVERED WITH THE DECISION OF THE PUNE BENCH OF ITAT IN THE CASE OF MANGALAM INORGANICS (P) LTD (SUPRA), WHEREIN IT WAS HELD THAT THE DISTANCE BETWEEN THE MUNICIPAL LIMITS AND THE ASSESSEES INDUSTRIAL UNDERTAKING HAS TO BE MEASURED HAVING REGARD TO THE ROAD DISTANCE AND NOT AS PER THE CROWS FLIGHT I.E., A STRAIGHT LINE DISTANCE AS CANVASSED BY THE REVENUE. 12. IN CASE OF ITO VS. ASHOK SHUKLA , DECIDED IN ITA NO.207/INDORE/2012, FOR ASSESSMENT YEAR 2008 - 2009, VIDE ORDER DATED 31.8.2012, THE ISSUE WAS IN RESPECT TO WHETHER THE ASSESSEE WAS ENTITLED TO EXEMPTION FROM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND. THIS ISSUE WAS EXAMI NED 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 DISTANCE IS 9.7 KMS FROM THE MUNICIPAL LIMIT. THIS DISTANCE WAS THROUGH THE APPROACH ROAD AND NOT BY STRAIGHT LINE DI STANCE METHOD. THEREAFTER DISCUSSING THE ISSUE ON MERIT AND HAVING TAKING INTO CONSIDERATION THE DECISION OF THE TRIBUNAL IN THE CASE OF LAUKIK DEVELOPERS (SUPRA) AND CONSIDERING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF BALKRISHNAHARI BALLABHADAS 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 THE APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD . RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF SATINDER PAL SINGH (SUPRA). 13. IN THE CASE OF ACIT VS. M/S. SHAGUN INFRASTRUCTURE PVT LTD DECIDED IN ITA NO.209/NAG/2009, FOR ASSESSMENT YEAR 2006 - 2007, 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 LIMITS AND IS CLEARLY AGRICULTURAL LAND IN TERMS OF SECTION 2(14)(III) OF THE ACT., THEREFORE, ANY INCOME FROM SUCH LAND INCLUDING PROFIT ARISING FROM SALE OF SUCH AGRICULTURA L LAND IS NOT ASSESSABLE AS INCOME . 14. 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 THE CASE OF LAUKIK DEVELOPERS (SUPRA) AND THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SATNDER PAL SINGH (SUPRA), HELD THAT THE DISTANCE OF 8 KMS HAS TO BE MEASURED BY APPROACH ROAD DISTANCE AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE . SIMILAR VIEW HAS BEEN EXPRESS ED IN THE CASE OF SHRI MAINRAJ VS. ACIT , DECIDED IN ITA NO.1371/MDS/2011, FOR ASSESSMENT YEAR 2007 - 2008 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 S TRAIGHT LINE METHOD. IN CASE OF SMTSAVITHRIAMMAL VS. ITO, DECIDED IN ITA NO.487/MDS/2012, VIDE ORDER DATED 12.7.2012 AGAIN IT HAS BEEN HELD THAT THE DISTANCE HAS TO BE MEASURED AS PER THE APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD. SIMILAR VIEW HAS BE EN EXPRESSED IN CASE OF ITO VS. SHRI CHAGANLALLALJIASWIN BUSINESS, DECIDED IN ITA NO.857/MDS/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 ASSESSMEN T YEAR 2008 - 2009, 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 C OURT IN THE CASE OF SATINDER PAL SINGH (SUPRA), WAS TAKEN INTO CONSIDERATION AND ANOTHER DECISION OF THE SAME HIGH COURT IN THE CASE OF CIT VS. LAL SINGH & OTHERS, REPORTED IN (2010) 228 CTR 575 WAS ALSO TAKEN INTO CONSIDERATION AND HAS ALLOWED THE ISSUE I N FAVOUR OF THE ASSESSEE BY HOLDING THAT THE DISTANCE OF 8 KMS HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE METHOD ON HORIZONTAL PLANE. 7 15. WE HAVE ALSO TAKEN INTO CONSIDERATION VARIOUS ARGUMENTS OF LD CIT DR AND FOUND THAT SINCE THE I SSUE IS COVERED BY THE DECISION OF THE VARIOUS BENCHES OF THE TRIBUNAL AS WELL AS BY THE HONBLE PUNJAB AND HARYANA HIGH COURT, THEREFORE, IN VIEW OF THE CONSISTENCY THE VIEW TAKEN BY VARIOUS BENCH ES 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 HONBLE PUNJAB & HARYANA HIGH COURT HAS ONLY PERSUASIVE VALUE. IF THERE IS ANY CONTRARY DECISION IS AVAILABLE EITH ER BY THE 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. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF THE 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, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEES. 9. THUS, IT IS DECIDED ISSUE THAT THE MEASUREMENT HAS TO BE DONE BY NEAREST APPROACH ROA D (NAR). FURTHER, IT IS AN UNDISPUTED FACT THAT THE DISTANCE OF IMPUGNED LANDS FROM THE MUNICIPAL LIMITS IS BEYOND 8 KMS BASED ON THE SAID METHOD OF NAR. CONSIDERING THE ABOVE SETTLED POSITION OF THE ISSUE AT THE LEVEL OF THE HIGHER JUDICIARY AS WELL AS BY THE VARIOUS ORDER OF THE TRIBUNAL AND FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE AND THUS, THE DISTANCE OF 8 KMS HAS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE ON HORIZONTAL PLACE OR CROWS FLIGHT. ACCORDINGLY , THE GROUND RAISED BY THE ASSESSEE IS ALLOWED . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.235/NAG/2012 (AY 2007 - 2008) (BY ASSESSEE) ITA NO.236/NAG/2012 (AY 2007 - 2008) (BY ASSESSEE) ITA NO.237/NAG/2012 (AY 2007 - 2008) (BY ASSESSEE) 11. THESE 3 APPEALS ARE ALSO FILED BY THE ASSESSEES AGAINST THE THREE SEPARATE ORDER OF THE CIT (A) - II, NAGPUR COMMONLY DATED 25.1.2012 INVOLVING ASSESSMENT YEAR 2007 - 2008. 12. IN ALL THESE THREE APPEALS, THE REVISED GROUND RAISED BY THE ASSESSEES IS EXACTLY IDENTICAL TO THAT OF THE GROUND RAISED B Y THE ASSESSEE IN THE CASE OF SHRI UMASHANKAR B THAKUR VIDE ITA NO.209/NAG/2012 (AY 2007 - 08) WHICH IS DECIDED BY US IN THE ABOVE PARAGRAPHS OF THIS ORDER . SINCE, THE GROUND RAISED IN ALL THE PRESENT THREE APPEALS IS IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, WE PROCEED TO REPRODUCE AND ADJUDICATE THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO APPEAL ITA NO.235/NAG/2012, WHICH READS AS UNDE R: 8 ASSESSEES AGRICULTURAL LAND WAS BEYOND 8 KMS BY ROAD DISTANCE FROM NAGPUR MUNICIPAL CORPORATION LIMIT AND HENCE, IT WAS NOT A CAPITAL ASSET AND NOT LIABLE TO TAX . HOWEVER, LD CIT (A) ERRED IN HOLDING THAT THE DISTANCE IS TO BE MEASURED AS CROW FLIES AND ACCORDING TO THAT METHOD THE DISTANCE WAS EIGHT KMS AND HENCE TAXABLE TO CAPITAL GAINS. THE SAID DECISION OF LD CIT (A) IS ERRONEOUS. 13. THE ISSUE INVOLVED IN ALL THE INSTANT THREE APPEALS I.E., WHETHER THE MEASUREMENT OF THE IMPUGNED LAND SHOULD BE TAKEN BY THE STRAIGHT LINE MEASUREMENT AS THE CROWS FLIES OR BY NEAREST APPROACH ROAD , IN PRINCIPLE, IS IDENTICAL TO THAT OF THE ISSUE DECIDED BY US WHILE ADJUDICATING THE APPEAL OF THE ASSESSEE VIDE ITA NO.209/NAG/2012 IN THE ABOVE PARAGRAPHS OF THIS ORD ER. CONSIDERING THE SIMILARITY OF THE ISSUE, THE DECISION GIVEN BY US IN THE SAID APPEAL SQUARELY APPLIES TO THE INSTANT APPEALS TOO. ACCORDINGLY, REVISED GROUND RAISED BY THE ASSESSEES IN ALL THE THREE APPEALS IS ALLOWED. 14. IN THE RESULT, ALL THE THRE E APPEALS FILED BY THE ASSESSEES ARE ALLOWED. ORDER PRONOUN CED IN THE OPEN COURT ON 3 RD SEPTEMBER, 2014. SD/ - SD/ - (VIVEK VARMA) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER NAGPUR ; 03 /09/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , / DR, ITAT, NAGPUR. 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT.REGISTRAR) / ITAT, NAGPUR