Smt. Minakshi Khaitan, Kolkata V. ACIT, C.C.-VI, Kolkata, Kolkata

ITA 634/KOL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75082 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 31-03-2010
• Court: TRIBUNAL
• Department Lawyers: APURBA KR DAS JCITSR
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBL E SRI GEORGE MATHAN, JM] ITA NO.634/KOL/2010 ASSESSMENT YEAR : 2006-07 ( APPELLANT ) (RESPONDENT) SMT.MINAKSHI KHAITAN -VS- A.C.I.T., CENTRAL CIRC LE-VI, KOLKATA KOLKATA (PAN:AFCPK 8366 C) FOR THE APPELLANT SHRI SUBHASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI APURBA KR.DAS, JCIT(SR.DR) DATE OF HEARING : 06.03.2014 DATE OF PRONOUNCEMENT : 06. 03.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. C.I.T.(A)- CENTRAL-I, KOLKATA IN APPEAL NO.300/CC-VI/CIT(A),C- I/08-09 DATED 18.12.2009 FOR ASSESSMENT YEAR 2006-07. 2. SHRI SUBHASH AGARWAL, ADVOCATE, REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI APURBA KR.DAS, JCIT(SR.DR) REPRESENTED ON BE HALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSE E HAD PURCHASED A PLOT OF LAND MEASURING 3.25 ACRES IN NAI BASTI VILLAGE. GAUTAM B UDHA NAGAR DISTRICT GAZIABAD U.P. IN 1985. SHE SOLD THE SAID PLOT OF LAND IN MAR CH 2006 AND SHE HAD CLAIMED THE DIFFERENCE AS EXEMPT U/S 2(14) OF THE ACT. IT WAS T HE SUBMISSION THAT THE LAND SOLD BY THE ASSESSEE WAS AGRICULTURAL LAND. IT WAS THE SUBM ISSION THAT THE AO DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE AND HAD HELD THAT T HE ASSESSEE HAD NOT SHOWN THE AGRICULTURAL INCOME IN THE EARLIER YEAR AND THE DIS TANCE MEANT IN THE ACT WAS THE AERIAL DISTANCE AND NOT ROAD DISTANCE AND THE AREA WAS HAV ING A POPULATION OF 10,000. IT WAS ITA NO.634/KOL/2010 SMT.MINAKSHI KHAITAN A.YR.2006-07 2 THE SUBMISSION THAT ON APPEAL THE LD. CIT(A) UPHELD THE CONTENTION OF THE AO BY HOLDING THAT IT WAS THE AERIAL DISTANCE THAT WAS TO BE CONSIDERED AND THE LAND IN QUESTION WAS LOCATED WITHIN THE SPECIFIED 8 KMS. LI MIT OF THE MUNICIPAL AREA OF DADRI WHICH IS HAVING POPULATION OF MORE THAN 10,000. THE LD. AR DREW OUR ATTENTION TO PAGE NOS. 59 AND 60 OF THE PAPER BOOK BEING COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR ON 29.11.2004 AS ALSO CERTIFICATE ISSUED BY THE GRAM PANCHAYAT DATED 28.09.2008, THE ENGLISH TRANSLATION OF WHICH CATEGO RICALLY SPECIFIED THAT THE SAID LAND WAS SITUATED MORE THAN 8 KMS FROM THE MUNIPALITY OF GHAZIABAD AS ALSO THE MUNICIPAL LIMIT OF GHAZIABAD. IT WAS THE SUBMISSION THAT THE CERTIFICATE WAS PRODUCED BEFORE THE LD. CIT(A) ALSO AS ALSO THE AO. IT WAS THE SUBMISSI ON THAT THE ORDER OF THE LD. CIT(A) AND THE AO MAY BE REVERSED. 4. IN REPLY THE LD. DR SUBMITTED THAT THE AERIAL DI STANCE WAS TO BE CONSIDERED. HE VEHEMENTLY SUPPORTED THE ORDER OF AO AND THE LD. CI T(A). 5. IN REPLY THE LD. AR SUBMITTED THAT THE ISSUE WHE THER THE AERIAL DISTANCE WAS TO BE CONSIDERED OR THE DISTANCE BY ROAD IS TO BE CONS IDERED WAS SETTLED BY THE DECISION OF MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF LAUKIK DEVELOPERS VS DCIT REPORTED IN 303 ITR 356 (MUM), IN SO FAR AS, THE DISTANCE WAS T O BE MEASURED HAVING REGARD TO THE ROAD DISTANCE AND NOT AS PER THE CROWS FLIGHT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITT EDLY THE ISSUE AS TO WHETHER THE DISTANCE FROM THE END OF THE MUNICIPALITY LIMIT TO THE LAND WHICH IS SOLD AND THE GAINS FROM WHICH IS CLAIMED TO BE EXEMPT IS OBVIOUS LY TO BE MEASURED BY THE ROAD DISTANCE IN VIEW OF THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF LAUKIK DEVELOPERS VS DCIT REFERRED TO SUPRA. FURTHE R, A PERUSAL OF THE CERTIFICATE ISSUED BY THE TAHSILDAR AS ALSO THE GRAM PANCHAYAT CLEARLY SHOWS THAT THE SAID LAND IS SITUATED MORE THAN 8 KMS FROM THE MUNICIPALITY LIMI TS OF GHAZIABAD. THE REVENUE HAS NOT BEEN ABLE TO SHOW THAT THE CERTIFICATE ISSUED B Y THE TAHSILDAR OR GRAM PANCHAYAT IS WRONG. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ASSESSEE IS RIGHT IN MAKING THE ITA NO.634/KOL/2010 SMT.MINAKSHI KHAITAN A.YR.2006-07 3 CLAIM OF THE LAND SOLD BY THE ASSESSEE AS BEING EXE MPT U/S 2(14) OF THE ACT. IN THE CIRCUMSTANCES THE APPEAL OF THE ASSESSEE IS ALLOWED . 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE COURT ON 06.03.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 06.03.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. SMT.MINAKSHI KHAITAN, 96, GARDEN REACH ROAD, KOLKAT A-700023. 2 SCIT, CENTRAL CIRCLE-VI, KOLKATA 3 . CIT(A)-CENTRAL-I, KOLKATA 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES