I.T.O. WARD-1(1), NAGPUR, Nagpur V. SMT. RANJU RAMKUMAR CHANDAK, Nagpur

ITA 358/NAG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3146 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 10-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 143(3); 2(14)

Judgement Text

1 ITA NOS.358,359&360/NAG/2014 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. 35 8 /NAG/2014 ASSESSMENT YEAR : 2010 - 11. THE INCOME - TAX OFFICER, SMT. R ANJU RAMKUMAR CHANDAK, WARD - 1(1), NAGPUR. VS. NAGPUR. PAN AAHPC8558J APPE LLANT RESPONDENT I.T.A. NOS.359 & 360/NAG/2014 ASSESSMENT YEARS : 2009 - 10 & 2010 - 11. THE INCOME - TAX OFFICER, SMT. POONAM NAVNEET KOTHARI, WARD - 1(3), NAGPUR. VS. NAGPUR. PAN AKCPK1573G. APPELLANT RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT : SHRI HIMESH DEMBLE. DATE OF HEARING : 0 7 - 01 - 2016 DATE OF PRONOUNCEMENT : 15 TH JANUARY, 2016. O R D E R PER MUKUL K. SHRAWAT, J.M. ALL THESE APPEALS OF THE REVENUE DEPARTMENT HAVE BEEN FILED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR ALL DATED 03 - 04 - 2014. IN IDENTICAL MANNER THE REVENUE HAS RAISED THE GROUNDS IN THESE APPEALS AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE LAND IN QUESTION IS AGRICULTURAL LAND SITUATED BEYOND 8 KMS OF MUNICIPAL LIMITS, THEREFORE CANNOT BE REGARDED AS CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE 2 ITA NOS.358,359&360/NAG/2014 INCOME TAX ACT AND THE SALE TRANSACTION IN QUESTION IS NOT LIABLE FOR CHARGING OF CAPITAL GAINS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT FOR THE PURPOSE OF DISTANCE TO BE COMPUTED U/S 2(14)(III)(B) OF THE I.T. ACT, 1961, THE DISTANCE FROM THE LOCAL MUNICIPAL LIMIT IS TO BE MEASURED BY APPROACH ROAD AND NOT AERIALLY. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRE D IN NOT CONSIDERING THE CERTIFICATE ISSUED BY THE ASSTT. DIRECTOR TOWN PLANNING, NAGPUR WHICH INDICATED THAT THE DISTANCE OF THE AGRICULTURAL LAND SOLD BY THE ASSESSEE WAS 8 KMS FROM MUNICIPAL LIMITS OF NAGPUR. 4. ON THE FACTS AND IN LAW, THE CIT(A) ERRED I N NOT CONSIDERING THE CONTENTS OF THE NEW SECTION 2(14)(III)(B) INTRODUCED BY THE FINANCE ACT, 1013 W.E.F. 01.04.2014 WHICH STIPULATED THAT THE DISTANCE WAS TO BE MEASURED AERIALLY AND THIS AMENDMENT BEING PROCEDURAL AND CLARIFICATORY IN NATURE CLARIFYING THE LEGISLATIVE INTENTION, WAS APPLICABLE RETROSPECTIVELY SINCE INCEPTION. 2. AT THE OUTSET WE HAVE BEEN INFORMED THAT THE ISSUE AS RAISED BY THE REVENUE DEPARTMENT NOW STOOD SETTLED IN VIEW OF VARIOUS JUDICIAL PRONOUNCEMENTS AS WELL AS BY A CBDT CIRCULAR F.NO. 279/MISC./140/2015 - ITJ (CIRCULAR NO. 17/2015) DATED 6 TH OCT., 2015. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDERS PASSED U/S 143(3) DATED 22 - 03 - 2013 (FOR ASSTT. YEAR 2010 - 11, THE LEAD YEAR) WERE THAT THE ASSESSEE HAD SOLD T HE PROPERTY WHICH WAS ASSESSED IN THE HANDS OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN AMOUNTING TO RS.1,23,00,000/ - ON THE GROUND THAT THE LAND IN QUESTION WAS SITUATED WITHIN 8 KMS. O F MUNICIPAL LIMITS, HENCE TO BE TREATED AS CAPITAL ASSET FOR THE PUR POSE OF COMPUTATION OF SHORT TERM CAPITAL GAIN. 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS FOUND THAT THE CONTROVERSY WAS WHETHER THE AERIAL DISTANCE WAS TO BE ADOPTED OR 3 ITA NOS.358,359&360/NAG/2014 THE DISTANCE BY ROAD WAS REQUIRED TO BE ADOPTED. ON THIS ISSUE THERE WERE SEVERAL DECISIONS WHERE IT WAS HELD THAT INSTEAD OF STRAIGHT LINE METHOD OR AERIAL DISTANCE METHOD, THE DISTANCE OF THE PROPERTY IS TO BE COMPUTED BY ADOPTING APPROACH ROAD DISTANCE METHOD. SINCE THE LEARNED CIT(APPEALS) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE, THEREFORE, THE REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE FOUND THAT IN ADDITION TO TH E CASE LAWS AS RELIED UPON BY LEARNED CIT(APPEALS), NOW THE CBDT HAS ALSO CLARIFIED BY THE CIRCULAR AS CITED SUPRA IN RESPECT OF TH E MEASUREMENT OF THE DISTANCE FOR THE PURPOSE OF DETERMINATION OF THE NATURE OF THE LAND WHETHER TO BE HELD AS CAPITAL ASSET OR AGRICULTURAL LAND. THE CBDT HAS ISSUED DIRECTIONS AS UNDER : 2. THE MATTER HAS BEEN EXAMINED IN LIGHT OF JUDICIAL DECISIONS ON THE SUBJECT. THE NAGPUR BENCH OF THE HON. BOMBAY HIGH COURT VIDE ORDER DATED 30.03.2015 IN ITA 151 OF 2013 IN THE CASE OF SMT. MALTIBAI R. KADU HAS HELD THAT THE AMENDMENT PRESCRIBING DISTANCE TO BE MEASURED AERIALLY, APPLIES PROSPECTIVELY I.E. IN RELATIO N TO ASSESSMENT YEAR 2014 - 15, THE HIGH COURT HELD THAT THE DISTANCE BETWEEN THE MUNICIPAL LIMIT AND THE AGRICULTURAL LAND IS TO BE MEASURED HAVING REGARD TO THE SHORTEST ROAD DISTANCE. THE SAID DECISION OF THE HIGH COURT HAS BEEN ACCEPTED AND THE AFORESAID DISPUTED ISSUE HAS NOT BEEN FURTHER CONTESTED. 3. BEING A SETTLED ISSUE, NO APPEALS MAY HENCEFORTH BE FILED ON THIS GROUND BY TH E OFFICERS OF THE DEPARTMENT AND APPEALS ALREADY FILED, IF ANY, ON THIS ISSUE BEFORE VARIOUS COURTS/TRIBUNALS MAY BE WITHDRAWN/NOT PRESSED UPON. THIS MAY BE BROUGHT TO THE NOTICE OF ALL CONCERNED. 6. IN THE LIGHT OF CBDT DIRECTIONS AS WELL AS THE CASE L AWS RELIED UPON, WE FIND NO FORCE IN THESE GROUNDS OF THE REVENUE. HENCE THE SAME ARE HEREBY DISMISSED. 4 ITA NOS.358,359&360/NAG/2014 7. IN THE RESULT, ALL THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF JANUARY, 2016. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 15 TH JANUARY, 2016. COPY FORWARDED TO : 1. SMT. RANJU RA M KUMAR CHANDAK, 2. SMT. POONAM NAVNEET KOTHARI, 118, GOVARDHAN NIWAS, BAJAJ NAGAR, NAGPUR. 3. I.T.O., WARD - 1(1) / I.T.O., WARD - 1(3), NAGPUR. 4. COMMISSIONER OF INCOME - TAX - , NAGPUR. 5. CIT(APPEALS) - I., NAGPUR. 6. D.R., ITAT, NAGPUR. 7. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR WAKODE.