DINESH KUMAR JAIN, Jaipur V. ITO, Jaipur

ITA 372/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4899 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 21-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA JCIT DHK
• Keywords: Capital asset; Gift; Rule of consistency
• Section: 54F; 2(14); 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA -@ ITA NO. 372/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 DINESH KUMAR JAIN, 75, SUNDER NAGAR, MALVIYA NAGAR, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABTPJ 8816 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SH. PREM PRAKASH MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/11/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 01/12/2016 VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 26/02/2015 OF THE LEARNED CIT(A)-II, JAIPUR FOR A.Y . 2011-12. THE SOLE GROUND OF APPEAL RAISED BY THE ASSESSEE IS AS UNDER :- THE LD CIT(A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE ACTION OF A.O. IN HOLDING THAT THE AGRICULTURAL LAND SOLD BY THE ASSESSEE IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(I II) OF THE INCOME TAX ACT, 1961 BY NOT CONSIDERING THE ARGUMENTS OF ASSES SEE IN ITS ENTIRETY 2 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO AND THEREBY ASSESSING THE INCOME FROM CAPITAL GAIN ON SALE OF SUCH LAND AT RS. 69,30,140/-. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE HAS EXECUTED A SALE DEED FOR SALE OF AGRICULTURAL LAND HAVING KHA SRA NO. 10 TO 15, 18 TO 21, 23/479, 30, 51 MEASURING 1/4 TH SHARE OF 3.2 HECTARE LAND LOCATED AT VILLAGE SALINGRAMPURA, TEHSIL- SANGANER, DISTRICT- JAIPUR TO SHRI PANKAJ CHATURVEDI, PROP. M/S VINAYAK LAND DEVELOPERS VIDE SALE DEED EXECUTED ON 21/09/2010 FOR SALE CONSIDERATION OF RS. 87,40,0 00/-, WHICH WAS VALUED BY THE SUB-REGISTRAR FOR CHARGING OF STAMP D UTY AT RS. 89,47,500/-. IT IS SUBMITTED BEFORE THE ASSESSING OFFICER BY THE ASSESSEE THAT SALE PROCEEDS OF AGRICULTURAL LAND AT VILLAGE SALINGRAMPURA WAS EXEMPTED AND RECEIVED IN GIFT FROM BROTHER RS. 87,40,000/-. THE ASSESSEE FILED COPY OF THE SALE DEED AND EVIDENCE O F ACQUISITION OF LAND AS GIFT FROM HIS BROTHER. THE LD ASSESSING OFFICER ALSO ENQUIRED FROM THE SUB-REGISTRAR, SANGANER-1 AND COMMISSIONER OF JAIPU R NAGAR NIGAM FOR STAMP DUTY AND TO FIND OUT THE DISTANCE FROM THE MU NICIPAL LIMIT OF THE LAND SOLD. AFTER CONSIDERING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HAS HELD AS UNDER:- (I) THE ASSESSEE HAS CONCEALED THE FACT REGARDING S ALE OF ABOVE MENTIONED IMMOVABLE PROPERTY WHICH WAS SOLD F OR A DISCLOSED CONSIDERATION OF RS. 87,40,000/- AS AGAIN ST 3 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO EVALUATED VALUE BY THE SUB REGISTRAR FOR CHARGING S TAMP DUTY AT RS. 89,47,500/-. (II) THE ASSESSEE HAS NOT DISCLOSED THE ABOVE TRANS ACTION EITHER IN THE AIR OR IN THE COMPUTATION OF TOTAL INCOME. (III) IN THE RETURN OF INCOME FIELD THE ASSESSEE HA S NOT CLAIMED ANY EXEMPTION EITHER ON ACCOUNT OF THE LAND BEYOND THE PURVIEW OF DEFINITION OF CAPITAL ASSET IN TERMS OF SEC. 2 (14) AS THE AGRICULTURAL LAND BEYOND 8 KMS OF THE MUNICI PAL LIMIT OF JAIPUR NAGAR NIGAM, JAIPUR. IT IS ALSO ADMITTED FACT THAT THERE WAS NO CLAIM IN THE RETURN OF INCOME FOR DEDU CTION U/S 54F FOR MAKING INVESTMENT IN PURCHASE OF NEW RESIDENTIAL HOUSE. (IV) THE CONTRADICTORY STAND TAKEN BY THE ASSESSEE DURING THE COURSE OF HIS EXAMINATION VIS-A-VIS SUBMISSION FILE D DURING ASSESSMENT PROCEEDINGS IN THE FORM OF COMPUTATION O F TOTAL INCOME. (V) THE ASSESSEE HAS FURNISHED FABRICATED DOCUMENTS IN THE FORM OF COPY OF SALE DEED WHEREIN IT WAS INSERTED T HAT THE IMPUGNED LAND WAS MORE THAN 10 KMS FROM THE MUNICIP AL LIMITS OF JAIPUR NAGAR NIGAM, JAIPUR. THIS ISSUE IS DISCUSSED AT LENGTH IN THE SHOW CAUSE NOTICE ISSUED AS SUCH T HE ASSESSEE IS GUILTY OF FURNISHING FABRICATED DOCUMEN TS TO DEFRAUD REVENUE DURING THE COURSE OF SCRUTINY ASSES SMENT PROCEEDINGS. 4 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO (VI) THE REPORTS RECEIVED FROM THE TEHSILDAR SANGAN ER AND TEHSILDAR NAGAR NIGAM JAIPUR ORE SCANNED IN ASSESSMENT ORDER:- (VII) THE ASSESSEE WAS OWNER OF 3-4 RESIDENTIAL FLA TS CONSTRUCTED AT 75 SUNDER NAGAR, MALVIYA NAGAR, JAIPUR AND WAS A LSO OWNER OF A NUMBER OF OTHER PLOTS AS MENTIONED IN TH E BALANCE SHEET OUT OF WHICH SOME ARE RESIDENTIAL HOU SES AS SUCH THE ASSESSEE WAS HAVING MORE THAN ONE RESIDENT IAL HOUSE AS ON THE DATE OF TRANSFER OF ORIGINAL ASSET. ACCORDINGLY, THE ASSESSEE WAS NOT ELIGIBLE FOR CLAI MING DEDUCTION U/S 54 F OF THE INCOME TAX ACT, 1961. (VIII) THE ASSESSEE HAS NOT TAKEN POSSESSION OF THE FLAT BOOKED IN GARDEN VIEW APARTMENT WITHIN THE ALLOWED PERIOD AS SUCH OTHERWISE ALSO THE INVESTMENT MADE IN FLAT IS NOT E LIGIBLE FOR CLAIMING DEDUCTION U/S 54 F OF THE INCOME TAX ACT, 1961. (IX) THE ASSESSEE HAS ALSO PURCHASED A RESIDENTIAL HOUSE BEARING NO. 262/329 PRATAP NAGAR, JAIPUR DURING THE PERIOD F.Y. 2010-11 AS SUCH HAS COMMITTED DEFAULT A S MENTIONED IN SECTION 54 F (2) OF THE INCOME TAX ACT , 1961 AS HE HAS PURCHASED RESIDENTIAL HOUSE OTHER THAN TH E NEW ASSET WITHIN THE PERIOD OF ONE YEAR FROM THE DATE O F TRANSFER OF ORIGINAL ASSET. THE LD ASSESSING OFFICER FURTHER HELD THAT THE ASSE SSEE HAS SOLD CAPITAL ASSET WHICH WAS NOT DISCLOSED IN THE RETURN OF INCO ME AND THE 5 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO INFORMATION WAS NOT FILED IN AIR AS WELL AS THE ASS ESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S 54F OF THE ACT AND HAS FURNI SHED FABRICATED DOCUMENT IN THE FORM OF COPY OF SALE DEED BY TEMPER ING PAGE NO. 2 WHEREIN IT WAS MENTIONED THAT THE IMPUGNED LAND WAS LOCATED AT MORE THAN 10 KMS FROM THE LIMITS OF JAIPUR NAGAR NIGAM, JAIPUR. ACCORDINGLY, THE LD ASSESSING OFFICER CALCULATED THE LONG TERM C APITAL GAIN AT RS. 75,85,570/-. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), W HO HAD CONFIRMED THE ADDITION BY OBSERVING AS UNDER:- 4.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSESSMEN T ORDER AND THE SUBMISSIONS OF THE APPELLANT. GROUND NO. 3(I) RELATES TO THE ISSUE WHETHER THE LAND SOLD BY THE APPELLANT IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(III)(B). IN THIS CASE, THE ASSESSING OFFICER CONDUCTED INQUIRES WITH THE SUB REGISTRAR, SANGANER -I AND THE COMMISSIONER, JAIPUR NAGAR NIGAM TO ASCERTA IN THE DISTANCE OF THE IMPUGNED LAND FROM THE MUNICIPA L LIMITS OF JAIPUR NAGAR NIGAM. THE REPLY GIVEN BY TH E TEHSILDAR REVEALED THAT THIS LAND IS SITUATED AROUN D 5 KMS FROM THE LOCAL LIMIT OF THE MUNICIPALITY AT VIL LAGE MURILIPURA, AS PER THE ROAD DISTANCE. THE TEHSILDAR OF SANAGANER HAS ALSO REPORTED THAT THIS LAND IS SITUA TED 6 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO 2.5 KMS AWAY FROM THE MUNICIPAL LIMIT. THE APPELLAN T HAS STATED THAT THE DISTANCE OF 8 KMS HAS TO BE ASCERTAINED ON THE DATE OF SALE. IT HAS ALSO BEEN A RGUED THAT THE REPORT OF THE TEHSILDAR IS INCORRECT BECAU SE ON THE DATE OF SALE THERE WAS NO DIRECT ROAD BETWEEN MURILPURA TO THE LAND. IT IS TO BE NOTED THAT THE APPELLANT HAS NOT FURNISHED ANY EVIDENCE OR ANY SPE CIFIC PARTICULARS TO SHOW THAT THE IMPUGNED LAND WAS SITU ATED BEYOND A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMIT ON THE DATE OF SALE. ON THE CONTRARY, THE TWO REPORTS SUBMITTED BY THE REVENUE AUTHORITIES CLEARLY STATE THAT THE IMPUGNED LAND WAS LOCATED WITHIN A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMIT. IN VIEW OF THE ABOVE REPORTS GIVEN BY THE REVENUE AUTHORITIES, IT IS HEL D THAT THE IMPUGNED LAND WAS SITUATED WITHIN A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMIT (IN FACT ONLY 2.5 KMS AWAY) AND THEREFORE IS A CAPITAL ASSET IN VIEW OF THE PRO VISIONS OF SECTION 2(14)(III)(B). THEREFORE, THE STAND OF T HE ASSESSING OFFICER IN HOLDING THAT THIS AGRICULTURAL LAND IS A CAPITAL ASSET, IS UPHELD. GROUND NO.3 (I) IS DISM ISSED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE SOLD AN AG RICULTURAL LAND AT VILLAGE SALIGRAMPURA, TEHSIL SANGANER ON 21.09.2009 FOR RS.87,40,000/-. FOR STAMP DUTY PURPOSE, ITS VALUE WAS ASSESSED AT R S.89,47,500/-. THE 7 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO AO OBTAINED REPORT FROM TEHSILDAR SANGANER WHO REPO RTED THAT THE LAND SOLD IS SITUATED AT 2.5 KMS OF THE MUNICIPAL LIMITS . REPORT IS ALSO OBTAINED FROM THE OFFICE OF NAGAR NIGAM, JAIPUR WHE RE IT WAS STATED THAT THE LAND SOLD BY THE ASSESSEE IS 5 KMS OF THE MUNIC IPAL LIMITS. ACCORDINGLY, THE AO HELD THAT THE AGRICULTURAL LAND SOLD BY THE ASSESSEE IS A CAPITAL ASSET U/S 2(14) OF THE ACT AND DETERMI NED THE LONG TERM CAPITAL GAIN AT RS.75,85,570/-. HE HAS FURTHER SUBMITTED THAT BEFORE THE LD. CIT(A) , ASSESSEE HAS CLAIMED THAT THE DISTANCE OF 8 KMS FOR TREATING AN AGRICULTURAL LAND AS CAPITAL ASSET IS TO BE SEEN WITH REFERENCE TO THE M UNICIPAL LIMIT EXISTING ON THE DATE OF THE NOTIFICATION PUBLISHED IN THE OF FICIAL GAZETTE AND NOT THE MUNICIPAL LIMIT EXISTING ON THE DATE OF SALE. T HE NOTIFICATION IS DATED 06.01.1994 AND THEREFORE THE DISTANCE IS TO BE MEAS URED WITH REFERENCE TO THE LIMIT OF MUNICIPALITY EXISTING ON THAT DATE. RELIANCE WAS PLACED ON THE DECISION OF HONBLE ITAT, JAIPUR BENCH IN CASE OF DR. SUBHA TRIPATHI IN ITA NO. 1129/JP/11 FOR AY 2008-09 DATED 24.05.20 13. IT WAS FURTHER CLAIMED THAT THE CERTIFICATE OBTAINED BY THE AO DO NOT SPECIFY AS TO WHAT WAS THE MUNICIPAL LIMIT OF JAIPUR AS ON 06.01.1994. FURTHER, ON 21.09.2010, WHEN THE AGRICULTURAL LAND WAS SOLD, TH ERE WAS NO DIRECT 8 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO APPROACH ROAD FROM MURLIPURA TO GRAM SALIGRAMPURA. IT WAS REQUESTED THAT THESE FACTS MAY BE DIRECTLY GOT VERIFIED FROM OFFICE OF NAGAR NIGAM/ TEHSILDAR SANGANER. THESE CONTENTION OF THE ASSESSE E ARE MENTIONED AT PG 8 OF THE CIT(A) ORDER. THEREAFTER, THE LD. CIT(A ) BY RELYING ON THE TWO REPORTS OF THE REVENUE AUTHORITIES HELD THAT TH E LAND UNDER CONSIDERATION IS A CAPITAL ASSET. IT WAS SUBMITTED THAT THE LD. CIT(A) AT PG 10 OF HI S ORDER OBSERVED THAT ASSESSEE HAS STATED THAT DISTANCE OF 8 KMS HAS TO B E ASCERTAINED FROM THE DATE OF SALE. THIS IS INCORRECT AS ASSESSEE HAS CLAIMED THAT DISTANCE IS TO BE ASCERTAINED WITH REFERENCE TO THE LIMITS O F MUNICIPALITY AS EXISTING ON THE DATE OF NOTIFICATION AND NOT ON THE DATE OF SALE. HE FURTHER OBSERVED THAT AO HAS SUBMITTED TWO REPORTS WHICH STATES THAT LANDS ARE SITUATED WITHIN A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMIT BUT ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO SHOW THA T THE LAND WAS SITUATED BEYOND A DISTANCE OF 8 KMS FROM THE MUNICI PAL LIMIT ON THE DATE OF SALE. IN OBSERVING SO, THE LD. CIT(A) DID NOT CO NSIDER THE DECISION OF HONBLE ITAT RELIED BY THE ASSESSEE. HE ALSO DID NO T CONSIDER THE CLAIM OF THE ASSESSEE THAT THERE WAS NO DIRECT ROAD FROM MURLIPURA TO GRAM SALIGRAMPURA AND THAT THE DISTANCE IS TO BE MEASURE D BY APPROACH ROAD. 9 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO THE REQUEST OF THE ASSESSEE TO GET THESE FACTS DIRE CTLY VERIFIED FROM NAGAR NIGAM/ TEHSILDAR SANGANER WAS ALSO NOT CONSID ERED. THE LAW IS SETTLED THAT THE DISTANCE IS TO BE MEASURED WITH RE FERENCE TO THE MUNICIPAL LIMIT AS EXISTING ON THE DATE OF NOTIFICA TION DATED 06.01.1994 AND BY THE APPROACH ROAD AND THEREFORE, THE MATTER SHOULD BE SET ASIDE TO THE AO TO GET THESE FACTS VERIFIED FROM THE TEHS ILDAR/ NAGAR NIGAM AND THEREAFTER DETERMINED WHETHER THE AGRICULTURAL LAND SOLD IS A CAPITAL ASSET OR NOT IN TERMS OF SECTION 2(14) OF THE INCOM E TAX ACT, 1961. THEREFORE, HE PRAYED TO ALLOW THE APPEAL OF THE ASS ESSEE. 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN TH E INSTANT CASE, THE ASSESSEE SOLD AN AGRICULTURAL LAND AT VILLAGE SALIN GRAMPURA, TEHSIL- SANGANER, DISTRICT- JAIPUR ON 21/09/2009. THE REVEN UE HELD THAT THE AGRICULTURAL LAND SOLD IS A CAPITAL ASSET U/S 2(14) OF THE ACT AS IT IS WITHIN 8 KM FROM THE MUNICIPAL LIMIT WHEREAS THE ASSESSEE S ARGUMENT IS THAT THIS LIMIT IS TO BE RECKONED FROM THE DATE OF NOTIF ICATION DATED 06/1/1994. FURTHER ON 21/09/2009 WHETHER WHEN THE A GRICULTURAL LAND 10 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO WAS SOLD, THERE WAS NO DIRECT APPROACH FROM VILLAGE MURLIPURA TO VILLAGE SALINGRAMPURA. 6.1 TO APPRECIATE THE CONTROVERSY, IT WILL BE APPRO PRIATE TO REFER TO THE RELEVANT PROVISIONS OF SECTION 2(14) OF THE ACT: '2(14) 'CAPITAL ASSET' MEANS PROPERTY OF ANY KIND H ELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFE SSION, BUT DOES NOT INCLUDE (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SI TUATE (A ) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICT ION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPAL ITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BO ARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAN D ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIG U RES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR ; OR (B ) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE TH AN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNICIPALI TY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOV ERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBA NIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFIED I N THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE.' 6.2 THE ABOVE DEFINITION OF CAPITAL ASSET TO INCLUD E THE AGRICULTURE LAND WAS BROUGHT ON THE STATUE BY THE FINANCE BILL, 1970. IT WOULD THEREFORE BE RELEVANT TO REFER TO THE STATEMENT OF OBJECTS AND REASONS WHILE INTRODUCING THE AMENDMENT TO THE DEFINITION O F CAPITAL ASSET 11 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO CONTAINED IN SECTION 2(14) BY THE FINANCE BILL, 197 0 REPORTED IN 75 ITR (ST.) 69 AND THE RELEVANT EXTRACTS REPRODUCED AS UN DER: 'SUB-CLAUSE (A) SEEKS TO AMEND CLAUSE (14) OF SECTI ON 2 OF THE INCOME-TAX ACT WHICH DEFINES THE TERM 'CAPITAL ASSE T'. THE AMENDMENT SEEKS TO BRING WITHIN THE TERM 'CAPITAL A SSET' AGRICULTURAL LAND SITUATED WITHIN THE LIMITS OF ANY MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED ARE A COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE OR BY ANY OTHER NAME ) OR A CANTONMENT BOARD HAVING A POPULATION OF 10,000 OR M ORE ACCORDING TO THE LAST CENSUS FOR WHICH THE FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR. FURTHER, AGRICU LTURAL LAND SITUATED IN AREAS LYING WITHIN A DISTANCE NOT EXCEEDING 8 KI LOMETERS FROM THE LOCAL LIMITS OF SUCH MUNICIPALITIES OR CANTONMENT B OARDS WILL ALSO BE COVERED BY THE AMENDED DEFINITION OF 'CAPITAL ASSET ', IF SUCH AREAS ARE, HAVING REGARD TO THE EXTENT OF AND SCOPE FOR T HEIR URBANISATION AND OTHER RELEVANT CONSIDERATIONS, NOTIFIED BY THE CENTRAL GOVERNMENT IN THIS BEHALF. THE EFFECT OF THE PROPOSED AMENDMENT WILL BE THAT CAPITAL GAINS ARISING FROM THE TRANSFE R OF AGRICULTURAL LAND SITUATED IN MUNICIPAL OR OTHER URBAN AREAS OR NOTIF IED ADJOINING AREAS WILL BE LIABLE TO INCOME-TAX FOR THE ASSESSMENT YEA R 1970-71 AND SUBSEQUENT YEARS.......' AGRICULTURAL LAND WHICH IS SITUATED OUTSIDE SUCH M UNICIPAL OR OTHER URBAN AREAS OR THE NOTIFIED ADJOINING AREAS WILL, H OWEVER, CONTINUE TO BE EXCLUDED FROM THE TERM CAPITAL ASSET AND NO CAPITAL GAINS TAX WILL BE PAYABLE WITH REFERENCE TO THE TRANSFER OF S UCH AGRICULTURAL LAND, AS HITERTHO. 6.3 IN CONTEXT OF SECTION 2(14)(III)(B) OF THE ACT, WE NOW REFER TO THE NOTIFICATION DATED 6 TH JANUARY, 1994, ISSUED BY THE CENTRAL GOVERNMENT REPORTED IN 205 ITR (ST.) 121, THE RELEVANT EXTRACT S REPRODUCED AS UNDER: 12 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO 'NOW, THEREFORE, IN EXERCISE OF THE POWERS CONFERRE D BY ITEM (B) OF CLAUSE (II) OF THE PROVISO TO SUB-CLAUSE (C) OF CLA USE (1A) AND ITEM (B) OF SUB-CLAUSE (III) OF CLAUSE (14) OF SECTION 2 OF THE INCOME-TAX ACT, 1961 (43 OF 1961), AND IN SUPERSESSION OF THE NOTIFICATION OF THE GOVERNMENT OF INDIA IN THE ERSTWHILE MINISTRY OF FI NANCE (DEPARTMENT OF REVENUE AND INSURANCE) NO. S. O. 77( E), DATED FEBRUARY 6, 1973 SEE [1973] 89 ITR (ST) 145., THE C ENTRAL GOVERNMENT HAVING REGARD TO THE EXTENT OF, AND SCOP E FOR URBANIZATION OF THE AREAS CONCERNED AND OTHER RELEV ANT CONSIDERATIONS, HEREBY SPECIFIES THE AREAS SHOWN IN COLUMN (4) OF THE SCHEDULE HERETO ANNEXED AND FALLING OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY OR CANTONMENT BOARDS, AS THE CASE MAY BE, SHOWN IN THE CORRESPONDING ENTRY IN COLUMN (3) THEREOF AND A GAINST THE STATE OR UNION TERRITORY SHOWN IN COLUMN (2) THEREOF FOR THE PURPOSES OF THE ABOVEMENTIONED PROVISION OF THE INCOME-TAX ACT, 1961 (43 OF 1961). NO. NAME OF THE STATE OR UNION TERRITORY NAME OF THE MUNICIPALITY OR CANTONMENT BOARD FALLING IN THE STATE/UNION TERRITORY MENTIONED UNDER COLUMN (2) DETAILS OF AREAS FALLING OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY OR - CANTONMENT BOARD, ETC., MENTIONED UNDER COLUMN (3). 1 2 3 4 19. RAJASTHAN 7. JAIPUR AREAS UP TO A DISTANCE OF 8 KMS. FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS ** ** ** ** EXPLANATION 1.(1) IN THIS NOTIFICATION, MUNICIPALI TY SHALL MEAN ANY AREAS WHICH IS COMPRISED WITHIN THE JURISDICTION OF A M UNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREAS COMMITTEE, TOWN AREAS COMMITTEE, TOWN COMMITTEE OR BY ANY OTHER NAME) WHICH HAS A POPULATION OF NOT LESS THAN TEN T HOUSAND ACCORDING 13 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR . (2) THE REFERENCE TO MUNICIPAL LIMITS OR THE LIMIT OF CANTONMENT BOARD IN THE SCHEDULE TO THIS NOTIFICATION IS TO THE LIM ITS AS EXISTING ON THE DATE ON WHICH THE LIMITS AS EXISTING ON THE DATE ON WHIC H THE NOTIFICATION IS PUBLISHED IN THE OFFICIAL GAZETTE. 6.4 A PERUSAL OF THE ABOVE PROVISIONS READ WITH THE NOTIFICATION MAKES IT CLEAR THAT WHAT IS INTENDED TO BE COVERED IN THE TERM 'CAPITAL ASSET' IS AGRICULTURAL LAND COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY AND WITHIN THE SPECIFIED DISTANCE FROM THE LOCAL LIMITS OF MUNICIPALITY OR OTHER LOCAL BODIES MENTIONED THEREIN AS SPECIFIED IN THE NOTIFICATION ISSUED BY THE CENTRAL GOVERNMENT. AS PER SUB-CLAUSE (B) OF CL AUSE (III) OF SECTION 2(14), THE NOTIFICATION OF THE CENTRAL GOVT. IS THE REFORE MANDATORY TO BRING THE LAND IN THE DEFINITION OF CAPITAL ASSET W HICH IS NOT LOCATED WITHIN THE LIMITS OF THE MUNICIPALITY BUT LOCATED W ITHIN THE DISTANCE OF 8 KMS FROM THE LOCAL LIMITS. 6.5 WE NOW REFER TO THE DECISION OF THE COORDINATE BENCH IN CASE OF SMT. (DR.) SUBHA TRIPATHI (SUPRA) WHICH HAS BEEN RELIED UPON BY THE LD AR. THE OPERATIVE PART OF THE DECISION IS R EPRODUCED AS UNDER: 2.7 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE MATERIALS ON RECORD. THE QUESTION ARISES FOR OUR CONSIDERATIO N AND ADJUDICATION IS WHETHER THE LAND IN QUESTION THOUGH LOCATED BEYOND 8 KMS FROM THE 14 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO MUNICIPAL LIMITS OF JAIPUR MUNICIPALITY AS ON THE D ATE OF NOTIFICATION DATED 06-01-1994 BUT SUBSEQUENTLY IT FALLS WITHIN T HE DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS DUE TO THE EXPANSION OF T HE MUNICIPAL LIMITS WOULD STILL BE REGARDED AS AGRICULTURAL LAND NOT FA LLING IN THE DEFINITION OF CAPITAL ASSET IN TERMS OF SECTION 2(14)(III)(B) OF THE ACT. THERE IS NO DISPUTE THAT JAIPUR MUNICIPALITY HAS BEEN DULY NOTI FIED VIDE SAID NOTIFICATION DATED 6-01-1994 AND AS ON THE DATE OF SAID NOTIFICATION, THE LAND IN QUESTION WAS BEYOND 8 KMS FROM THE MUNICIPA L LIMITS EXISTS AT THAT POINT OF TIME. THE DISPUTE ARISES BECAUSE OF T HE EXPANSION OF MUNICIPAL LIMITS AND THEREBY THE SAID DISTANCE FROM THE MUNICIPAL LIMITS AS ON THE DATE OF SALE OF THE LAND IN QUESTION IS O NLY 2 KMS AND THEREBY THE AUTHORITIES BELOW HAVE TREATED THE LAND IN QUES TION AS NOT FALLING UNDER THE EXCLUSION CLAUSE OF SECTION 2(14)(III)(B) OF THE ACT. THERE IS NO QUARREL ON THE POINT THAT AS PER SUB-CLAUSE (B) OF CLAUSE (III) OF SECTION 2(14), THE NOTIFICATION OF THE CENTRAL GOVT. IS MAN DATORY TO BRING THE LAND IN THE DEFINITION OF CAPITAL ASSET WHICH IS NO T LOCATED WITHIN THE LIMITS OF THE MUNICIPALITY BUT LOCATED WITHIN THE D ISTANCE OF 8 KMS FROM THE LOCAL LIMITS. SO FAR, THE AGRICULTURAL LAND WHI CH IS LOCATED IN THE LIMITS OF MUNICIPAL LIMITS, THE SAME WILL BE TREATED AS CA PITAL ASSET AND NO FURTHER REQUIREMENT IS TO BE EXAMINED. SINCE THE LA ND IN QUESTION IS LOCATED OUTSIDE THE LOCAL LIMITS OF MUNICIPALITY, T HEREFORE, IN ORDER TO DETERMINE WHETHER THE LAND IN QUESTION FALLS UNDER MISCHIEF OF SUB- CLAUSE (B) OF SECTION 2(14(III) OF THE ACT, THE DIS TANCE OF 8 KMS HAS TO BE TAKEN INTO ACCOUNT IN TERMS OF NOTIFICATION DATED 6 -01-1994. AS PER EXPLANATION 2 OF THE SAID NOTIFICATION DATED 6-01-1 994, THE MUNICIPAL LIMITS IS TO BE THE LIMITS AS EXISTING ON THE DATE ON WHICH THE NOTIFICATION IS PUBLISHED IN THE OFFICIAL GAZETTE. WE QUOTE THE EXPLANATION 2 OF THE NOTIFICATION (SUPRA) AS UNDER:- '(2) THE REFERENCE TO THE MUNICIPAL LIMITS OR THE L IMIT OF CANTONMENT BOARD IN THE SCHEDULE TO THIS NOTIFICATION IS TO TH E LIMITS AS EXISTING ON THE DATE ON WHICH ON WHICH THE NOTIFICATION IS P UBLISHED IN THE OFFICIAL GAZETTE.' 15 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO IF THE STAND OF THE REVENUE IS ACCEPTED THAT THE DI STANCE OF 8 KMS SHOULD BE CONSIDERED FROM THE MUNICIPAL LIMIT EXIST S AS ON THE DATE OF THE SALE OF LAND THEN IT WOULD RENDER THE NOTIFICAT ION ISSUED BY THE CENTRAL GOVT. AS INEFFECTIVE AND UNWORKABLE/OTIOS. AS IT IS MADE CLEAR BY EXPLANATION 2 OF THE SAID NOTIFICATION THAT MUNICIP AL LIMITS IS TO BE CONSIDERED AS EXISTING ON THE DATE ON WHICH NOTIFIC ATION IS PUBLISHED IN THE OFFICIAL GAZETTE, THEREFORE, THE DATE OF NOTIFI CATION IS RELEVANT AND MATERIAL POINT TO DETERMINE THE DISTANCE OF 8 KMS F ROM MUNICIPAL LIMITS. THERE IS NO AMENDMENT OR WITHDRAWAL OF THE SAID NOT IFICATION EXCEPT A RECENT AMENDMENT HAS BEEN BROUGHT IN THE STATUTE BY THE FINANCE ACT 2013 WHEREBY THE REQUIREMENT OF SAID NOTIFICATION H AS BEEN DISPENSED WITH FOR INVOKING SUB-CLAUSE (B) OF CLAUSE (III) OF SECTION 2(14) OF THE ACT W.E.F. 01-04-2014. THUS IT IS DISCERNIBLE FROM THE NOTIFICATION DATED 06- 01-1994 AND THE RECENT AMENDMENT IN THE STATUTE WHE REBY THE SAID NOTIFICATION HAS BEEN DISPENSED WITH THAT THE DISTA NCE OF 8 KMS HAS TO BE CONSIDERED FROM THE MUNICIPAL LIMITS AS EXISTS O N THE DATE OF NOTIFICATION FOR THE PURPOSE OF INVOKING SUB-CLAUSE (B) OF CLAUSE (III) OF SECTION 2(14) OF THE ACT. ACCORDINGLY WE HOLD THAT THE LAND IN QUESTION WHICH WAS LOCATED BEYOND 8 KMS FROM THE MUNICIPAL L IMITS AS ON 6-01- 1994 WHEN THE NOTIFICATION WAS PUBLISHED IN THE OFF ICIAL GAZETTE, THE SAME WOULD FALL UNDER THE EXCLUSION CLAUSE OF THE T ERM 'CAPITAL ASSET' AS PER PROVISIONS OF 2(14)(III)(B) OF THE ACT. 6.6 THE COORDINATE BENCH WHILE DELIVERING THE ABOVE DECISION HAS REFERRED TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN CASE OF CIT V. MADHUKUMAR N. (HUF) [2012] 208 TAXMAN 394/23 TAXMANN.COM 341 (KAR.) WHERE THE HONBLE HIGH COURT HAS LAID DOWN THE FOLLOWING PROPOSITION IN LAW: 16 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO 9. AN AGRICULTURAL LAND IN INDIA IS NOT A CAPITAL ASSE T BUT BECOMES A CAPITAL ASSET IF IT IS THE LAND LOCATED UNDER SECTI ON 2(14)(III)(A) & (B) OF THE ACT. SECTION 2(14) (III) (A) OF THE ACT COVERS A SITUATION WHERE THE SUBJECT AGRICULTURAL LAND IS LOCATED WITHIN THE LIM ITS OF MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR CANTONMENT COMMITTEE AND WHICH HAS A POPULATION OF NOT LESS THAN 10,000. 10. SECTION 2(14)(III)(B) OF THE ACT COVERS THE SITUATI ON WHERE THE SUBJECT LAND IS NOT ONLY LOCATED WITHIN THE DISTANCE OF 8 K MS FROM THE LOCAL LIMITS, WHICH IS COVERED BY CLAUSE (A) TO SECTION 2 (14)(III) OF THE ACT, BUT ALSO REQUIRES THE FULFILLMENT OF THE CONDITION THAT THE CENTRAL GOVERNMENT HAS ISSUED A NOTIFICATION UNDER THIS CLA USE FOR THE PURPOSE OF INCLUDING THE AREA UP TO 8 KMS, FROM THE MUNICIP AL LIMITS, TO RENDER THE LAND AS A 'CAPITAL ASSET. 11. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE SUBJECT LAND IS NOT LOCATED WITHIN THE LIMITS OF DASARAHALLI CITY MUNIC IPAL COUNCIL THEREFORE, CLAUSE (A) TO SECTION 2(14][III] OF THE ACT IS NOT ATTRACTED. 12. HOWEVER, THOUGH IT IS CONTENDED THAT IT IS LOCATED WITHIN 8 KNITS,, WITHIN THE MUNICIPAL LIMITS OF DASARAHALLI CITY MUN ICIPAL COUNCIL IN THE ABSENCE OF ANY NOTIFICATION ISSUED UNDER CLAUSE (B) TO SECTION 2(14)(III) OF THE ACT, IT CANNOT BE LOOKED IN AS A CAPITAL ASS ET WITHIN THE MEANING OF SECTION 2(14)(III)(B) OF THE ACT ALSO AND THEREF ORE THOUGH THE TRIBUNAL MAY NOT HAVE SPELT OUT THE REASON AS TO WHY THE SUB JECT LAND CANNOT BE CONSIDERED AS A 'CAPITAL ASSET' BE GIVING THIS VERY REASON, WE FIND THE CONCLUSION ARRIVED AT BY THE TRIBUNAL IS NEVERTHELE SS THE CORRECT CONCLUSION. 6.7 IN LIGHT OF ABOVE, THE POSITION IN LAW IS CLEAR THAT SECTION 2(14)(III)(B) OF THE ACT COVERS THE SITUATION WHERE THE SUBJECT LAND IS NOT ONLY LOCATED WITHIN THE DISTANCE OF 8 KMS FROM THE LOCAL LIMITS, WHICH IS COVERED BY CLAUSE (A) TO SECTION 2(14)(III) OF THE ACT, BUT ALSO REQUIRES 17 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO THE FULFILLMENT OF THE CONDITION THAT THE CENTRAL G OVERNMENT HAS ISSUED A NOTIFICATION UNDER THIS CLAUSE FOR THE PURPOSE OF I NCLUDING THE AREA UP TO 8 KMS, FROM THE MUNICIPAL LIMITS, TO RENDER THE LAN D AS A 'CAPITAL ASSET. IN OTHER WORDS, WHETHER THE LAND IN QUESTION FALLS UNDER MISCHIEF OF SUB- CLAUSE (B) OF SECTION 2(14)(III) OF THE ACT, THE DI STANCE OF 8 KMS HAS TO BE TAKEN INTO ACCOUNT IN TERMS OF NOTIFICATION DATE D 6-01-1994. AS PER EXPLANATION 2 OF THE SAID NOTIFICATION DATED 6-01-1 994, THE MUNICIPAL LIMITS IS TO BE THE LIMITS AS EXISTING ON THE DATE ON WHICH THE NOTIFICATION IS PUBLISHED IN THE OFFICIAL GAZETTE. THERE IS NO A MENDMENT OR WITHDRAWAL OF THE SAID NOTIFICATION EXCEPT THE AMEN DMENT BROUGHT IN THE STATUTE BY THE FINANCE ACT 2013 WHEREBY THE REQUIRE MENT OF SAID NOTIFICATION HAS BEEN DISPENSED WITH. THE AMENDMEN T BY THE FINANCE ACT 2013 IS WITH EFFECT FROM 01-04-2014 AND THEREFO RE, APPLIES PROSPECTIVELY IN RELATION TO THE ASSESSMENT YEAR 20 14-15 AND SUBSEQUENT ASSESSMENT YEARS. 6.8 REGARDING THE ISSUE ABOUT MEASUREMENT OF DISTAN CE, THE CONTENTION OF THE LD AR IS THAT THERE WAS NO DIRECT ROAD FROM MURLIPURA TO GRAM SALIMGRAMPURA AND THAT THE DISTANCE IS TO B E MEASURED BY THE APPROACH ROAD. THE ISSUE IS NO MORE REST INTEGRA A ND IS FAIRLY SETTLED 18 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO NOW. FOR THE YEAR UNDER CONSIDERATION, THE DISTANC E HAS TO BE MEASURED BY THE APPROACH ROAD. THE AMENDMENT BROUG HT IN BY THE FINANCE ACT, 2013 TO MEASURE THE DISTANCE AERIALLY IS EFFECTIVE FROM 01- 04-2014 AND THEREFORE, APPLIES PROSPECTIVELY IN REL ATION TO THE ASSESSMENT YEAR 2014-15 AND SUBSEQUENT ASSESSMENT Y EARS. FOR THE PURPOSES OF GUIDANCE, WE REFER TO THE DECISION OF H ONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF COMMISSIONER OF INCOME-TAX-II, LUDHIANA VS. SATINDER PAL SINGH [2010] 188 TAXMAN 5 4 (PUNJ. & HAR.) WHEREIN THE HONBLE HIGH COURT HAS HELD AS UNDER: 6. A PERUSAL OF THE AFORESAID PROVISION SHOWS THAT CAPITAL ASSET WOULD NOT INCLUDE ANY AGRICULTURAL LAND WHICH IS NOT SITU ATED IN ANY AREA WITHIN SUCH DISTANCE AS MAY BE SPECIFIED IN THIS BEHALF BY A NOTIFICATION IN THE OFFICIAL GAZETTE WHICH MAY BE ISSUED BY THE CENTRAL GOVERNMENT. THE MAXIMUM DISTANCE PRESCRIBED BY SECTION 2(14)( III)( B) OF THE ACT WHICH MAY BE INCORPORATED IN THE NOTIFICATION COULD NOT B E MORE THAN 8 KMS. FROM THE LOCAL LIMITS OF MUNICIPAL COMMITTEE OR CAN TONMENT BOARD ETC. THE NOTIFICATION HAS TO TAKE INTO ACCOUNT THE EXTEN T OF, AND SCOPE FOR URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSID ERATIONS. THE RECKONING OF URBANIZATION AS A FACTOR FOR PRESCRIBI NG THE DISTANCE IS OF SIGNIFICANT WHICH WOULD YIELD TO THE PRINCIPLE OF M EASURING DISTANCE IN TERMS OF APPROACH ROAD RATHER THAN BY STRAIGHT LINE ON HORIZONTAL PLANE. IF PRINCIPLE OF MEASUREMENT OF DISTANCE IS CONSIDER ED STRAIGHT LINE DISTANCE ON HORIZONTAL PLANE OR AS PER CROWS 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. I T IS IN PURSUANCE OF THE AFORESAID PROVISION THAT NOTIFICATION NO. 9447, DATED 6-1-1994 HAS BEEN ISSUED BY THE CENTRAL GOVERNMENT. IN RESPECT O F THE STATE OF 19 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO PUNJAB, AT ITEM NO. 18, THE SUB-DIVISION, KHANNA HA S BEEN LISTED AT SERIAL NO. 19. IT HAS, INTER ALIA, BEEN SPECIFIED T HAT AREA UP TO 2 KMS. FROM THE MUNICIPAL LIMITS IN ALL DIRECTIONS HAS TO BE REGARDED OTHER THAN AGRICULTURAL LAND. ONCE THE STATUTORY GUIDANCE OF T AKING INTO ACCOUNT THE EXTENT AND SCOPE OF URBANIZATION OF THE AREA HAS TO BE RECKONED WHILE ISSUING ANY SUCH NOTIFICATION THEN IT WOULD BE INCO NGRUOUS TO THE ARGUMENT OF THE REVENUE THAT THE DISTANCE OF LAND S HOULD BE MEASURED BY THE METHOD OF STRAIGHT LINE ON HORIZONTAL PLANE OR AS PER CROWS FLIGHT BECAUSE ANY MEASUREMENT BY CROWS FLIGHT IS BOUND T O IGNORE THE URBANIZATION WHICH HAS TAKEN PLACE. MOREOVER, THE J UDGMENT OF THE MUMBAI BENCH APPEARS TO HAVE ATTAINED FINALITY. KEE PING IN VIEW THE PRINCIPLE OF CONSISTENCY AS LAID DOWN IN RADHASOAMI SATSANG V. CIT [1992] 193 ITR 321 1 (SC) WE ARE OF THE VIEW THAT THE OPINION EXPRESSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY LEGAL INFIRMITY WARRANTING INTERFERENCE OF THIS COURT. ACCORDINGLY QUESTION NO. 1 IS ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE A SSESSEE BY UPHOLDING THE ORDER OF THE TRIBUNAL. 6.9 FURTHER, WE REFER TO THE DECISION OF THE HONBL E BOMBAY HIGH COURT IN CASE OF COMMISSIONER OF INCOME-TAX, NAGPUR V. NITISH RAMESHCHANDRA CHORDIA [2015] 57 TAXMANN.COM 394 (BOMBAY) WHERE THE HONBLE HIGH COURT HAS HELD AS UNDER: 15. INSOFAR AS RELEVANCE OF SECTION 11 OF THE GENE RAL CLAUSES ACT IS CONCERNED, IT NEEDS TO BE NOTED THAT HERE THE RELEV ANT AMENDMENT PRESCRIBING DISTANCE TO BE COUNTED MUST BE AERIAL H AS COME INTO FORCE W.E.F. 1ST APRIL, 2014. THE NEED OF AMENDMENT ITSEL F SHOWS THAT, IN ORDER TO AVOID ANY CONFUSION, THE EXERCISE BECAME N ECESSARY. THE PARLIAMENT NOTICED THE JUDGMENTS BEING DELIVERED AN D THEREFORE, EMPHATICALLY POINTED OUT AERIAL DISTANCE AS THE REL EVANT NORM. THIS EXERCISE TO CLEAR THE CONFUSION, THEREFORE, SHOWS T HAT BENEFIT THEREOF MUST BE GIVEN TO THE ASSESSEE. IT IS SETTLED LAW TH AT, IN SUCH MATTERS, WHEN THERE IS ANY DOUBT OR CONFUSION, THE VIEW IN F AVOUR OF THE ASSESSEE NEEDS TO BE ADOPTED. THE CIRCULAR NO.3/240, DT.24.1 .2014 SHOWS VIDE CLAUSE NO.4 -AMENDMENT IN DEFINITION OF 'CAPITAL AS SET' AND CLAUSE 4.5 DEALING WITH APPLICABILITY EXPRESSLY STIPULATES THA T IT TAKES EFFECT FROM 20 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO 1.4.2014 AND THEREFORE, PROSPECTIVELY APPLIES IN RE LATION TO THE ASSESSMENT YEAR 2014-15 AND SUBSEQUENT ASSESSMENT Y EARS. HENCE, THE QUESTION WHETHER PRIOR TO THE SAID ASSESSMENT YEAR 2014-15 THE AUTHORITIES ERRED IN COMPUTING THE DISTANCE BY ROAD DOES NOT ARISE AT ALL. THE IT CANNOT BE QUESTIONED ON THAT GROUND. FOR THE SE REASONS, SECTION 11 OF THE GENERAL CLAUSES ACT ALSO HAS NO APPLICATI ON IN THE PRESENT MATTER WHERE THE ITAT WAS CONCERNED WITH THE ASSESS MENT YEAR 2009- 10 OR PRIOR TO THE TIME WHEN AMENDMENT TOOK EFFECT. 6.10 IN LIGHT OF ABOVE DISCUSSIONS, WE FIND THAT TH E MATTER REQUIRE FRESH EXAMINATION TAKING INTO CONSIDERATION THE ABOVE LEG AL PROPOSITION. WE ACCORDINGLY, SET-ASIDE THE MATTER TO THE FILE OF AO TO EXAMINE THE MATTER A FRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 01/12/2016. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01.12.2016 PILLAI VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI DINESH KUMAR JAIN, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 6(1), JAIPUR. 21 ITA NO. 372/JP/2015 DINESH KUMAR JAIN VS ITO 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 372/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR