ACIT, Pune V. Shri Sardar Trimbak Murkute., Pune

ITA 2458/PUN/2012

• Counselvise Citation: 245824514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Capital asset
• Section: 2(14); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.2458/PN/2012 A.Y. 2009-10 ACIT, CIRCLE-4, PUNE APPELLANT VS. SHRI SARDAR TRIMBAK MURKUTE, S NO.35, VITHAL NIWAS, AT POST BANER, PUNE 411007 PAN: ABHPM7120K RESPONDENT APPELLANT BY : SHRI P.L. P ATHADE RESPONDENT BY : NONE DATE OF HEARING: 16.01.2014 DATE OF ORDER : 27.01.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-II, [SHORT C IT(A)-II] PUNE, DATED 08.08.2012 FOR A.Y. 2009-10 ON THE FOLLOWING GROUNDS. 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN ALLOWING THE APPEAL OF THE ASSESSEE AND HOLDING THAT THE AGRICULTURAL LAND HELD BY THE ASSESSEE WAS NOT A 'CAPITAL ASSET' WITHIN THE MEANING OF SECTION 2(14) (III)(B). 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN NOT APPRECIATING THE FACT THAT AS PER SECTION 11 OF THE GENERAL CLAUSES ACT, 1897, IN THE MEASUREMENT OF AN Y DISTANCE, UNLESS A DIFFERENT INTENTION APPEARS, THA T DISTANCE SHALL BE MEASURED IN A STRAIGHT LINE ON A HORIZONTAL PLANE. 3. THE LEARNED CIT(APPEALS) ERRED IN NOT APPRECIATING THAT THE ASSISTANT DIRECTOR, TOWN PLANNING HAD CERTIFIED THAT 2 THE LAND IN QUESTION WAS SITUATED WITHIN 8 KMS FROM THE LOCAL LIMITS OF THE PUNE MUNICIPAL CORPORATION AND HENCE WAS LIABLE TO BE TREATED AS A 'CAPITAL ASSET'. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF CONSTRUCTION ACTIVITY UNDER THE NAME AND STYLE OF M /S SHREE BHAGWATI DEVELOPERS. THE ASSESSING OFFICER HAS NOT ICED THAT THE ASSESSEE HAD SOLD A LAND LOCATED AT LAVALE AND THE ASSESSEE HAD CLAIMED THE LAND TO BEING AN AGRICULTURAL LAND BEIN G BEYOND THE PRESCRIBED LIMIT HENCE, THE CAPITAL GAINS ARISING O UT OF SALE WAS NOT OFFERED TO TAX. THE ASSESSING OFFICER HAS SOUG HT THE INFORMATION FROM ASST. DIRECTOR OF TOWN PLANNING RE GARDING THE AREAL DISTANCE OF THE VILLAGE LAVALE TO ASCERTAIN W HETHER THE SAID LAND WAS WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS AN D IN THE REPLY THE ASSTT. REGISTRAR VIDE LETTER DATED 12.12. 2011 REPLIED THAT THE AFORESAID LAND FALLS WITHIN THE MUNICIPAL LIMITS OF PUNE MUNICIPAL CORPORATION. 2.1 THE ASSESSING OFFICER THUS OBTAINED THE EXPLANA TION OF THE ASSESSEE WHICH WAS FOUND NOT ACCEPTABLE BY HIM, SO HE HELD THAT THE AFORESAID LAND TO BE A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE I.T. ACT, BEING WITHIN 8 KMS. OF THE MUNICIPAL AREA AND HENCE THE CONSIDERATION RECEIVED ON TRANSF ER OF THE SAME ATTRACTED CAPITAL GAIN TAX AND THUS THE AMOUNT OF RS. 49,50,000/-, BEING THE ASSESSEE'S SHARE WAS BROUGHT TO TAX. 2.2 THE MATTER WAS CARRIED BEFORE THE FIRST APPELLA TE AUTHORITY, WHEREIN AFTER CONSIDERING THE SUBMISSION ON BEHALF OF THE ASSESSEE, CIT(A) HAS HELD THAT THEORY OF MEASUREMEN T OF DISTANCE HAS TO BE TAKEN BY ROAD AND NOT AS PER CROWS FLIGHT . NOW THE QUESTION OF DISTANCE BEYOND 8 KMS. LIMIT BY ROAD WA S ANALYSED WITH RESPECT TO LOCATION OF LAND AT LAVALE FROM PMC . IN THIS REGARD, THE ASSESSEE HAS SUBMITTED A CERTIFICATE FR OM TALATHI 3 (GOVT. OFFICER OF VILLAGE) INTER ALIA CERTIFYING TH AT ACTUAL DISTANCE IS ABOVE 9 KMS. IT WAS ALSO MENTIONED THAT THE ASS ESSEE HAS APPLIED TO THE INSPECTOR OF BHUMI ADHILEKH, PUNE FO R CONFIRMATION REGARDING THE DISTANCE COVERED FROM TH E IMPUGNED LAND AND PMC. THE CERTIFICATE ISSUED BY THE SAID A UTHORITIES CLEARLY INDICATE THAT THE DISTANCE TO BE MORE THAN 8 KMS. THE SAID LETTER DATED 23.07.2012 OF THE DEPUTY OFFICER, BHUMI ABHILEKH, MULSHI STATES THAT THE DISTANCE BETWEEN I MPUGNED LAND I.E. GAT NOS.1097 TO 1062 AND PMC IS OUTSIDE 8 KMS. IN VIEW OF THE ABOVE, CIT(A) DELETED THE ADDITION IN Q UESTION. THIS REASONED AND FACTUAL FINDING OF CIT(A) NEEDS NO INT ERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 3. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 27 TH OF JANUARY, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 27 TH JANUARY, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-II, PUNE 4) THE CIT-II, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE