M/s Ganga Nursing Home, Allahabad V. DCIT, Allahabad

MA 6/ALLD/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2764 (ITAT-ALLAHABAD)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-08-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRAVEEN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice; Capital Gains
• Section: 2; 50C; 2(14); 143(2); 254(2); 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH,ALLAHABAD BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER Miscellaneous Application (M.A.) No.06/Alld/2022 [Arising out of ITA No.186/ALLD/2013] Assessment Year: 2008-09 M/s. Ganga Nursing Home, 17/19, K.G. Marg, Allahabad, U.P. v. Deputy Commissioner of Income Tax, Range-1, Allahabad , U.P. PAN: AAFFG4952J (Appellant) (Respondent) Appellant by: Adv. R.S. Agrawal & C.A. Praveen Godbole Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 12.08.2022 Date of pronouncement: 21.09.2022 O R D E R PER: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This Miscellaneous Application (MA)bearing MA No. 06/Alld./2022 arising out of ITA No. 186/Alld/2013 , for assessment year(ay) 2008-09 , has been filed by assessee, with the prayers to rectify mistakes which as per claim of the assessee are apparent on the face of the appellate order pronounced by Income Tax Appellate Tribunal , Allahabad Bench , Allahabad(hereinafter called “the tribunal”) , dated 10.09.2021 in ITA no. 186/Alld/2013 , for ay: 2008-09, and which as per claim of the assessee in this MA are amenable to rectification under the provisions of Section 254(2) of the Income-tax Act,1961 (hereinafter called the “Act”) . The aforesaid MA filed by assessee with the tribunal is reproduced as hereunder: MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 2 “Prayer U/s 254(2) of the Income Tax Act, 1961 for rectifying the mistake in Tribunal’s order (pronounced on 10.09.2021). May it please to the Hon’ble Members of the Tribunal vide order dated 10.09.2021 the Hon’ble Member of the Consulting the Bench, held as under;- Thus we hold that the land in question is within 8 Kms from the municipal limits of Allahabad and is a capital asset as defined under section 2 (14) and capital gains arising on sale of land shall be chargeable to Income-Tax within the provisions of the 1961 Act, this effective issue is decided against the assessee, we order accordingly.” However while disposing of the above appeal, the following plea and specific arguments of the assessee appellant which were addressed by their counsel before the Hon’ble Bench, has neither been consider nor advert to: The distance has been measured via plot no. 327, 328, and 322 (which are adjacent one by one finally adjacent to plot no. 318 (possessed by the assessee/appellant) and this method of measuring is not appropriate because there is no proper route to reach plot no. 318. Also the appellant has no concern with the distances of plot nos. 327, 328 and 322. The appellant is concerned with Plot no. 243, 317, 318 and 306 which were purchased possessed and thereafter sold by them and distance of the farthest plot is 13.4 kms from Route 1 and 8.9 kms from Route 2. Both these routes have properly been mentioned in the report and map as well. The distance of any place above can be measured by proper route i.e. in terms of Approach Road.” To substantiate the above plea, the objection taken by the appellant in their letter dated 08.03.2021 (in para 4 at page 10 of the CIT(A)’s order) objecting the report submitted by the revenue authorities were referred to and it was submitted that despite having been suggested a legal and appropriate method of measurement of the plots in question by approachable road, the Hon’ble Tribunal did not consider the same and gave any finding over the same. In this regard several decisions of the Hon’ble High Courts were also cited which holds in favour of the appellant. Further it was also contended by the counsel of the appellant that even assuming without admitting that the measurement of the land was to be done through Mirzapur Road and accordingly, the distance of plot no. 318 was determined to 7.82 Kms but while concurring with the said MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 3 measurement the Hon’ble Bench have completely ignored and take into consideration the distance of another plot no. 243 which is the remotest plot to plot no. 318 and situated just opposite to the Railway line. This fact is also evident from the Map relied upon by the Hon’ble Bench. Therefore at least plot no. 243 could not be considered within the limit of 8 kms. The submissions as made above, have substantial bearing and effect to the controversy involved in the above appeal decided by the Hon’ble Bench. By not dealing with an important aspect of the case which was pleased before the Hon’ble Bench there is a mistake apparent on the face of the order of the Hon’ble Bench dated 10.09.2021 and therefore it is respectively requested to rectify the same by exercising the power u/s 254(2) of the Income Tax Act, 1961 otherwise the appellant shall suffer great irreparable loss. PRAYER On the facts and circumstances of the case herein above, it is most humbly prayed that in the interest of justice, the Hon’ble Bench, may kindly be pleased to rectify the mistake apparent on the face of the order of the Hon’ble Tribunal dated 10.09.2021 u/s 254(2) of the Income Tax Act, 1961 as herein before appellant shall suffer great irreparable loss. Dated- 21/2/22 Sd/- (Appellant) For M/s Ganga Nursing Home “ 2. The Learned Senior counsel for the assessee Shri R S Agrawal, Advocate opened arguments before the Bench and drew our attention to Page No.2 of the MA filed by the assessee, in which main bone of contention of the assessee is that the tribunal , while pronouncing appellate order dated 10.09.2021 , has not addressed to the arguments raised by the Counsel of the assessee during the course of hearing when the appeal was heard. It is submitted by ld. Sr. Counsel for the assessee that the assessee is owner along with other 22 co-owners of the plots, and the assessee is only concerned with plot Aarazi No. 243, 317, 318 and 306 situated at Ward Aarel ,Newada, Samogar, Tehsil Karchanna , District Allahabad , which were purchased, possessed and thereafter sold by the assessee. The ld.Sr. Counsel for the assessee submitted that the assessee has no concern with the MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 4 Plot Aarazi No. 327, 328 and 322.The ld. Sr. Counsel for the assessee submitted that the distance has been measured via plot Aarazi No. 327, 328 and 322 , which are adjacent to one by one and finally adjacent to plot no. 318 , which plot Aarazi no. 318 was possessed by the assessee, and this method of measuring is not appropriate because there is no proper route to reach plot Aarazi No. 318. It was submitted that with respect to Plot Aarazi No. 243,317,318 and 306 which were purchased, possessed and sold by the assessee, the farthest plot is 13.4 Kms from Route 1 and 8.9 Km by Route No. 2. It was submitted that both these routes were mentioned in the report as well map. It was submitted that the distance of any place can be measured by proper route i.e. in terms of Approach Road. Further, it was submitted by ld. Sr. counsel for the assessee , without prejudice ,that even if the distance of the plot is to be measured through Mirzapur Road and accordingly, the distance of plot Aarazi No. 318 was to be determined at 7.8 Kms and is to be held as capital asset u/s 2(14), but the Plot Aarzi No. 243 could not have been treated as capital asset u/s 2(14) , as it is farthest to plot no. 318, situated just opposite to Railway Station. The ld. Sr. Counsel drew our attention to the maps placed in paper book at page 23A, 23B, 23C and 23D. The ld. Sr. Counsel for the assessee drew our attention to the para N3 and N4 of the appellate order passed by ld. CIT(A), and submitted that these contentions/objections were raised by assessee before ld. CIT(A), vide letter dated 08 th March 2013. The ld. Sr. counsel for the assessee relied upon judgment and order of Hon’ble Madras High Court in the case of CIT v. K.R.N. Prabhakaran (HUF) , reported in (2017) 393 ITR 175(Mad.) and the judgment and order of Hon’ble Madras High Court in the case of CIT v. Smt. Shakunthala Rangarajan, reported in (2016) 389 ITR 103(Mad.) . It was submitted by ld. Sr. Counsel for the assessee that both these decisions were relied upon by assessee during the course of hearing before the tribunal, when the appeal of the assessee was heard by the Division Bench. It was submitted by ld. Sr. counsel for the assessee that Plot Aarazi No. 243 is not adjacent to other plots , and is beyond Railway line. It was submitted by ld. Sr. counsel that with respect to Plot Aarazi No. 243 , there is no finding by tribunal in its order. It was submitted that legal and MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 5 appropriate method of measurement of the plot in question is by measuring through the approach road. 3. Learned Sr. DR, on the other hand, submitted that the distance of all plots from Municipal limits of Allahabad including Plot No.243, was within 8Km. Our attention was drawn to Section 2(14) of the 1961 Act , and it was submitted by ld. Sr. DR that for computing whether the asset falls under capital asset u/s 2(14) of the 1961 Act, ‘area’ is relevant and not the ‘plot number’. It was submitted that population of the area is relevant. Thus, it was submitted that area is relevant and not the plot. Our attention was drawn to Page No. 23A, 23B ,23C and 23D of the Paper-Book and it was submitted that farthest plot is 7.8KM from the Allahabad Municipal Limit , and plot Aarazi No. 243 is also included in report of Tehsildar , dated 14.12.2012 and hence prayer were made to dismiss this MA. Our attention was drawn to page 16 as well Para 5.2 of the tribunal order and it was submitted that the area is ‘Newada village’ which is relevant and is required to be seen. 4. We have considered rival contentions and perused the material on record . The assessee’s appeal in ITA no. 186/Alld/2013 for ay: 2008-09 , was decided by tribunal , vide appellate order dated 10.09.2021, wherein tribunal based on evidence on record, held that land sold by assessee , description of which is Plot Aarazi No. 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad, were within 8 Kms from Municipal limits of Allahabad and are capital asset as defined u/s 2(14) of the 1961 Act and consequently capital gains arising on sale of land shall be chargeable to income-tax within the provisions of the 1961 Act. The tribunal has passed detailed and reasoned order. The assessee has now filed an Miscellaneous Application stating therein that there is an alleged mistake apparent from order itself, which requires rectification u/s 254(2) of the 1961 Act. The first mistake pointed out by assessee in its MA is that the assessee has no concerns with plot Aarazi no.327, 328 and 322. The assessee has claimed in its MA MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 6 that it purchased, possessed and thereafter sold plot Aarazi No. 243, 317, 318 and 306, and the assessee is only concerned with Plot Aarazi No. 243, 317, 318 and 306. It is claimed by assessee in its MA that the assessee purchased land alongwith 22 other co- owners of various plots , and as per inter-se understanding of the assessee with these other 22 co-owners, the assessee had purchased, possessed and sold plot with Aarazi No. 243, 317, 318 and 306. Our attention was drawn to the contentions raised by assessee before ld. CIT(A) at para N3 and N4/page 10 of ld. CIT(A), wherein it was submitted that land in question sold by the assessee was 4.216 hectares which was ¼ part of the total land 16.861 hectare. It was submitted in the aforesaid reply filed by assessee before ld. CIT(A) that the assessee purchased total land along with 22 other co-owners but since division of share of each buyer and consolidation of land was not done and hence all the buyers were recorded as the owners of the land, but every owner was in possession of its own share of land. On being asked by the Bench, that the assessee has vide two registered sales deeds(both dated 27.12.2007) executed for sale of Plots Aarazi No. 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad, wherein the assessee in the aforesaid two registered sale deed is recorded as the absolute owner of the aforesaid plots in the two registered sale deed executed by assessee , which is duly registered with Sub- registrar, the assessee’s ld. Sr. Counsel submitted that there is no evidence available with it to prove that the assessee was only the owner of Plot Aarazi No. 243, 317, 318 and 306 , and that it did not had concern with Plot Aarazi No. 327, 328 and 322, as it was an oral understanding inter-se between assessee and other 22 co-owners. The Registration Act, 1908 and Transfer of Property Act , 1882 requires compulsory registration of immovable property value of Rs. 100 and more , to convey title. The two Registered sale deeds both dated 27.12.2007 executed by assessee itself speak that the assessee is absolute owner of Plots Aarazi No. 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , which the assesse sold vide two separate registered sale deeds both dated 27 th December MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 7 2007. The tribunal in its order dated 10.09.2021 in ITA No. 186/Alld/2013 , based on evidence on record by way of these two registered sale deeds executed by assessee , has recorded categorical finding that the assessee was owner of all these plots of which Arazi No.s are 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , and there is no reason , justification and evidence on record brought by assessee except oral arguments to contend that it is only the owner of the Plot Arazi No.s Aarazi No. 243, 317, 318 and 306 and hence has no concern with other plots. This argument of the assessee is rejected as there is no evidence to substantiate the same, rather the assessee described itself as the absolute owner of the plots Arazi No.s 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , in the two registered sale deeds both dated 27.12.2007 executed by it. All the aforesaid plots except Arazi No 243/1 are contiguous. All the aforesaid plots including Plot Arazi No. 243/1in the Kisan Bahi are declared as ‘Sanyukt Khata’ . The land revenue authorities vide certificate dated 14.12.2012 has clearly stated that all these aforesaid plots Arazi No.s 243/1, 261/1, 265, 306, 314/13,317/4 , 318/4, 322, 326/1 , 327/1 and 328 situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad (including Plot No. Arazi No 318/4 and 243/1) shortest approach road via Mirzapur Road , are within 8 kms from the Municipal Limits of Allahabad. It may be that some of the plots may not be on the main Mirzapur Plot, but all the plots except Plot Arazi No. 243/1 are contiguous, and all the plots including 318/4 and 243/1 vide land revenue authorities certificate dated 14.12.2012 are within 8 kms from the municipal limits. The law of easement as is prevalent in India will also come into play. In any case , all the plots except 243/1 are contiguous , and also that even Plot Arazi No. 243/1 is also within 8 kms from municipal limits of Allahabad. The tribunal has taken decision based on evidence on record, and has passed detailed, reasoned and speaking order . The scope of MA is very limited , restricted to rectify mistake apparent from record, and tribunal cannot review its own order .The two MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 8 registered sale deeds both dated 27.12.2007 executed by assessee are placed on record in paper book filed by assessee, at page number 45-104. The certificate dated 14.12.2012 issued by land revenue authorities is placed on record at page number 23A /paper book. . The Kisan Bahi is placed on record at page 36 onwards/paper book. The maps of the location are placed in paper book . The tribunal vide its order dated 10.09.2021in ITA no. 186/Alld/2013 for ay: 2008-09, has passed detailed and reasoned order , wherein it is recorded at para 6/page 12 and 13 as under: “Before proceeding further, it will be profitable to identify the land sold by the assessee and other terms of the sale as are relevant for adjudicating the dispute between rival parties. The assessee has sold land for a total consideration of Rs. 48,00,000/- , vide two sale deeds both executed on the same date viz. 27 th December , 2007. The said two sale deeds were executed by assessee in favour of Naini Educational Trust, C-654, Kareli, Allahabad . The said sale deeds are placed in paper book filed by assessee with tribunal, at page number 45-104.On perusal of the aforesaid two sales deeds , it is observed that vide first sale deed dated 27 th December 2007, the assessee has sold 3.9726 hectares of land. The land use mentioned in the sale deed is agriculture. The total sale consideration as is mentioned in the first sale deed is Rs. 46,00,000/- , while the circle rate mentioned is Rs. 68,84,000/- , on which the stamp duty was paid @10%. The description of land sold as is mentioned in this first sale deed is property number Aarazi No. 243/1, 261/1, 265, 306, 314/13, 317/4, 318/4, 322, 326/1 and 328, situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , the total area of the said property as is mentioned in the sale deed comes to 11.918 hectares and the assessee has sold its 1/3 share in the aforesaid property viz. 3.9726 hectares . It is stated in the sale deed that the assessee is absolute owner of the aforesaid property and is having absolute rights to sell this property. It is also stated MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 9 in the sale deed that the government circle rate is Rs. 7,00,000/- per acre and hence for 3.9726 hectares, the circle rates comes to Rs. 68,84,000/-. It is also stated in the first sale deed that stamp duty is paid on circle rate. It is observed that vide second sale deed also dated 27 th December 2007 , the assessee has sold 0.2856 hectares of land. The land use mentioned in the sale deed is agriculture. The total consideration as is mentioned in the second sale deed is Rs. 2,00,000/- , while the circle rate mentioned is Rs. 12,75,000/- , on which the stamp duty was paid @10%. The description of land sold as is mentioned in this second sale deed is property number Aarazi No. 327/1, situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , the total area of the said property as is mentioned in the sale deed comes to 0.857 hectares and the assessee has sold its 1/3 share in the aforesaid property viz. 0.2856 hectares . It is stated in this sale deed that the land is situated on Mirzapur Road. It is stated in this sale deed that the assessee is absolute owner of the aforesaid property and is having absolute rights to sell this property. It is also stated in this sale deed that the government circle rate is Rs. 12,00,000/- per acre, but since it is situated on Mirzapur Road, the circle rate is higher by 50% , and hence for 0.2856 hectares, the circle rates comes to Rs. 12,75,000/-. It is also stated in this second sale deed that stamp duty is paid on circle rate.” Thus, based on our above detailed discussions, we donot find that there is any such mistake apparent from record in the tribunal order which could be rectifiable . Thus, we hold that there is no such mistake apparent from record in tribunal appellate order dated 10.09.2021 which can be rectifiable u/s 254(2) of the 1961 Act , as detailed above , and hence contentions raised by ld. Sr. Counsel for the assessee contrary to evidence on record, stand rejected as it lacks merit. MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 10 Coming to next contention of the ld. Sr. Counsel for the assessee that the assessee relied upon two decisions of Hon’ble Madras High Court during hearing of the appeal viz. judgment and order of Hon’ble Madras High Court in the case of CIT v. K.R.N. Prabhakaran (HUF) , reported in (2017) 393 ITR 175(Mad.) and the judgment and order of Hon’ble Madras High Court in the case of CIT v. Smt. Shakunthala Rangarajan, reported in (2016) 389 ITR 103(Mad.), perusal of tribunal order dated 10.09.2021 reveals that the tribunal duly considered both the decisions of Hon’ble Madras High Court, while adjudicating appeal , and tribunal duly gave its reasons at page 28 and 29 of its order dated 10.09.2021, as reproduced hereunder : “The decision relied upon by assessee in the case of CIT v. K.R.N. Prabhakaran(HUF) (supra) infact supports the stand of Revenue as the Revenue is relying upon the certificates/reports issued by land revenue and survey authorities and are not relying on the report of the AO or any other officer/wing of Income-tax Department. The decision relied upon by assessee in the case of Smt. Sakunthala Rangarajan(supra) also does not support the assessee, as the distance measured by land revenue and survey authorities in the instance case were by access/approach road and it was not straight line or horizontal .” We are presently in MA proceedings, and scope of MA is very limited to rectifying the mistake apparent from the records, as tribunal does not have any power to review its decision in MA proceedings. The tribunal duly considered both the decisions relied upon by the assessee and gave its reasons for taking a view against the assessee, and it cannot be said that the tribunal did not consider the decision relied upon by the assessee, and in fact as in the first decision in the case of K.R.N. Prabhakaran(HUF)(supra), in the instant case before us the Revenue is relying upon certificate /reports issued by land revenue and survey authorities, and are not relying upon any report of AO or any other officer/wing of Income-tax department. MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 11 So far as second decision in the case of Smt. Sakunthala Rangarajan(supra), the distance measured in the instance case was also by access /approach road. Thus, this contention raised by the assessee to that effect in this MA also lacks merit, and are hereby rejected. The next contention raised by assessee in this MA is that the distance is to be measured through approach road and if the distance is so measured , the distance of these plots are more than 8 kms from the municipal limits of Allahabad. In fact, there are three routes to reach these plots from municipal limits of Allahabad, and the route is to be considered from the shortest route through approach road, from municipal limits of Allahabad to the plots of the assessee. The tribunal after considering certificates given by land revenue authorities , concluded that the route through Mirzpur road which is an approach road , is the shortest route. The assessee produced certificate dated 04.02.2011 issued by Tehsildar , Karchana, Allahabad which states that distance of Gata No. 243/1, 261/1, 265, 306, 317,318/4 , 322, 326/1, 327/1 and 329 Village Newad, Samogar , Pargana Arail , Tehsil Karchana are located 13 kms from municipal limits of Allahabad. The AO made enquiries and Tehsildar Karchana vide letter dated 15.10.2012 denied to have issued any such certificate dated 04.02.2011. The AO made further enquiries and land revenue and survey authorities vide certificates dated 06.10.2012 and 08.10.2012, certified that the distance of the aforesaid plots of the assessee are within 8km from municipal limits of Allahabad. The certificate dated 14.12.20212 was issued by land and survey authorities, which states that the distance of these plots through shortest route via approach road i.e. Mirzapur Road is less than 8 kms, while there are two other routes to reach these plots but they are longer routes . We are concerned with the shortest route, and hence the tribunal considered the distance of these plots from municipal limits of Allahabad through shortest approach road which is via Mirzapur Road. The Arazi plot no. 243/1 is also mentioned in this certificate dated MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 12 14.12.2012 issued by land revenue authorities, and all the plots mentioned therein are stated to be less than 8 kms from municipal limits of Allahabad. This certificate dated 14.12.2012 was infact issued by land revenue authorities, on the application of the assessee, and based on shortest route it was stated that plots are within 8kms from municipal limits of Allahabad. All the plots except Arazi Plot No. 243/ 1 are contiguous, and all the plots including plot no. 318/4 and 243/1 are stated by land and survey authorities vide certificate dated 14.12.2012 to be within 8 kms form Municipal Limits of Allahabad. The law of easement as is applicable in India will also come into play. The assessee has produced another certificate dated 18.12.2012 from land revenue and survey authorities, which in turn relied upon this certificate dated 14.12.2012 , but mentioned the two other approach road routes to reach the plot No. 318 which are infact longer routes, but the shortest route via approach road viz. Mirzapur Road to reach plot no. 318/4 whose distance is 7.8 kms from Municipal Limit of Allahabad via Mirzapur Road. The plot no. 318/4 is contigouse to all other plots owned by the assessee, except 243/1, while all plots are within 8 kms from Municipal Limit of Allahabad. The tribunal duly noted all these facts in its appellate order dated 10.09.2021 , while adjudicating the issue against the assessee. The relevant extract of the appellate order of the tribunal, dated 10.09.2021, wherein all these aspects were considered and adjudicated by tribunal vide a detailed and reasoned order, is reproduced as hereunder: 6.We have considered rival contentions and perused the material on record, including cited case laws. We have observed that the assessee is a firm. The case of the assessee for impugned ay: 2008-09 was selected for framing scrutiny assessment by the AO under the provisions of Section 143(2) read with Section 143(3) of the 1961 Act. The assessee has sold land during the year under consideration and disputes have arisen between the rival parties , as to the chargeability to tax of gains arising on the sale of land as to the whether the MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 13 said land is a capital asset within the inclusive definition of Section 2(14) , and also as to the quantum amount of capital gains chargeable to tax by invoking provisions of Section 50C of 1961 Act. It is the claim of the assessee that the land in question was an agricultural land. The first effective dispute has arisen between the rival parties as to whether the said land is within eight kilometers from the limits of municipal corporation of Allahabad , and thus falls within the inclusive definition of Capital Asset u/s 2(14). Before proceeding further, it will be profitable to identify the land sold by the assessee and other terms of the sale as are relevant for adjudicating the dispute between rival parties. The assessee has sold land for a total consideration of Rs. 48,00,000/- , vide two sale deeds both executed on the same date viz. 27 th December , 2007. The said two sale deeds were executed by assessee in favour of Naini Educational Trust, C-654, Kareli, Allahabad . The said sale deeds are placed in paper book filed by assessee with tribunal, at page number 45-104.On perusal of the aforesaid two sales deeds , it is observed that vide first sale deed dated 27 th December 2007, the assessee has sold 3.9726 hectares of land. The land use mentioned in the sale deed is agriculture. The total sale consideration as is mentioned in the first sale deed is Rs. 46,00,000/- , while the circle rate mentioned is Rs. 68,84,000/- , on which the stamp duty was paid @10%. The description of land sold as is mentioned in this first sale deed is property number Aarazi No. 243/1, 261/1, 265, 306, 314/13, 317/4, 318/4, 322, 326/1 and 328, situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , the total area of the said property as is mentioned in the sale deed comes to 11.918 hectares and the assessee has sold its 1/3 share in the aforesaid property viz. 3.9726 hectares . It is stated in the sale deed that the assessee is absolute owner of the aforesaid property and is having absolute rights to sell this property. It is also stated in the sale deed that the government circle rate is MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 14 Rs. 7,00,000/- per acre and hence for 3.9726 hectares, the circle rates comes to Rs. 68,84,000/-. It is also stated in the first sale deed that stamp duty is paid on circle rate. It is observed that vide second sale deed also dated 27 th December 2007 , the assessee has sold 0.2856 hectares of land. The land use mentioned in the sale deed is agriculture. The total consideration as is mentioned in the second sale deed is Rs. 2,00,000/- , while the circle rate mentioned is Rs. 12,75,000/- , on which the stamp duty was paid @10%. The description of land sold as is mentioned in this second sale deed is property number Aarazi No. 327/1, situated at Ward Aarel, Neweda, Samogar, Tehsil Karchanna, District Allahabad , the total area of the said property as is mentioned in the sale deed comes to 0.857 hectares and the assessee has sold its 1/3 share in the aforesaid property viz. 0.2856 hectares . It is stated in this sale deed that the land is situated on Mirzapur Road. It is stated in this sale deed that the assessee is absolute owner of the aforesaid property and is having absolute rights to sell this property. It is also stated in this sale deed that the government circle rate is Rs. 12,00,000/- per acre, but since it is situated on Mirzapur Road, the circle rate is higher by 50% , and hence for 0.2856 hectares, the circle rates comes to Rs. 12,75,000/-. It is also stated in this second sale deed that stamp duty is paid on circle rate. Now, before proceeding further, it will be profitable at this stage to reproduce provisions of Section 2(14)(iii) of the 1961 Act , as were applicable for the ay: 2008-09, which are reproduced hereunder: “Definitions. 2. In this Act, unless the context otherwise requires,— *** *** MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 15 14) "capital asset" means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include— (i)*** (ii)*** [(iii) agricultural land in India, not being land situate— (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year ; or (b) in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette;]” Thus, as can be seen from the provisions of Section 2(14)(iii) of the 1961 Act, the capital assets mean property of any kind held by an assessee, whether or not connected with the business or profession of the assessee, but will, inter-alia, not include agricultural land in India, not being a land situated with in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year, or in any area within such distance, not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 16 other relevant considerations, specify in this behalf by notification in the Official Gazette. It will be relevant at this stage to CBDT notification No. (SO 9447) (File No. 164/3/87-ITA.I) , dated 06.01.1994 , issued in exercise of powers conferred by item (B) of clause(ii) of the proviso to sub-clause (c) of clause(1A) and item (b) of sub-clause (iii) of clause (14) of section 2 of the 1961 Act and in suppression of the notification of the Government of India No. S.O.77(E), dated 6 th February, 1973 , the Central Government having extent of , and scope for urbanization of the areas concerned and other relevant considerations, specified the areas for the purposes of the above mentioned provisions of the 1961 Act, which inter-alia , included the areas up to a distance of 8 kms. from the municipal limits of Allahabad in all directions. Thus, in nut-shell for the purposes of holding whether the agricultural land shall fall within the definition of capital asset as specified in Section 2(14) of the 1961 Act, the agricultural land not only falling within Municipal limits of Allahabad shall be included, but also the agricultural land falling within distance of 8 kms. from the municipal limits of Allahabad in all directions , shall also be included. It is undisputed that the population within Allahabad Municipal limits as per last census of 2001 was 1.05 Million which is much higher than 10000(Source: Ministry of Housing and Urban Affairs). Coming back, such distance between the municipal limits and he agricultural land is to be measured having regard to the shortest road distance. Reference is drawn to CBDT circular no. 17/2015, dated 06 th October, 2015, wherein Revenue has accepted this position and acceded that the amendment made by Finance Act, 2013 w.e.f. 01.04.2014 prescribes the measurement of the distance to be taken aerially , but the said amendment is to be applied prospectively from assessment year 2014-15 and subsequent assessment years. The above view was taken by Nagpur Bench of MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 17 Hon’ble Bombay High Court in the case of Smt. Maltibai R. Kadu(supra), which decision has been accepted by Revenue. In the said judgment, the Hon’ble Bombay High Court has held that the distance between the municipal limit and agricultural land is to be measured having regard to the shortest road distance. The ld. DR has fairly conceded to this position and stated before the Bench, that relevant ay under consideration before the Bench is ay: 2008-09 and the distance between Municipal Limits of Allahabad and the land in question is to be measured having regard to the shortest road distance, and not aerial distance . Proceeding further, it is observed that there was some conflicting certificates issued by Tehsildar/SDM with regard to the distance between Municipal limits of Allahabad and the land in question. The copies of certified maps are also been placed on record in file. As is emerging from the records, there are three different road routes available from municipal limits of Allahabad to land in question, but we have to consider the shortest road distance between the municipal limits of Allahabad and the land in question. The certificates issued by the various authorities , certifying the distance between municipal limits of Allahabad and land in questions , are detailed hereunder: Certificate dated 04 th February, 2011, issued by Shri Ashish Kumar Mishra, Tehsildar , Karchana, Allahabad certifying that Gata No. 243/1, 261/1, 265, 306, 317/13,318/4, 322 , 326/1, 327/1 and 329 Village Newada, Samogar, Pargana Arail, Tehsil Karchana are located in District Allahabad . The aforesaid land are located 13 kms from Municipal Limits of Allahabad, and the Village Samogar has present population of 5000. The said certificate is reproduced hereunder: MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 18 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 19 The above certificate was produced by assessee before the authorities below. The ld. CIT(A) directed AO to make enquiries to unravel truth. The AO made enquiries from the Nagar Nigam and the office of Tehsiladar , Karchana. The AO gathered information from enquiries so made that the land in question is well within 8 kms from the municipal limits of Allahabad Nagar Nigam and hence the same is to be treated as urban agricultural land, which is a capital asset within the provisions of Section 2(14) of the 1961 Act , and the capital gains arising from sale thereof are subject to income-tax. The AO forwarded copies of information provided by Allahabad Nagar Nigam dated 06.10.2012 and Tehsildar Karchana dated 08.10.2012 to ld. CIT(A). The AO was informed on behalf of Officer-in-charge(Nazul) that the limit of Municipal Corporation of Allahabad is upto Sargam Talkies at Mirzapur Road and upto Chhvan Railway. The AO was informed that Village Newada, Samogar is not within the Municipal limits of Allahabad. The AO also enclosed copies of Gazette. The AO also enclosed a certificate dated 08 th October, 2012 issued by Tehsildar, Karchana, Allahabad to the effect that according to the official Gazette, Revenue village Newada, Samogar, Pargana Arail, Tehsildar –Karchana is in district Allahabad and Village Samogar is within 4.5 to 5kms from the Municipal limits. These reports were confronted by ld. CIT(A) to the assessee. The AO also submitted to ld. CIT(A) that the Tehsildar Karchana has denied the issuing of certificate date 04.02.2011 furnished by the assessee. In this respect , the AO forwarded to ld. CIt(A), letter dated 15.10.2012 issued by the said authority. The said certificate issued by Tehsildar Karchana is reproduced hereunder : MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 20 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 21 The ld. CIT(A) confronted these documents to the assessee. The assessee denied the truth of the certificate issued by Tehsildar dated 15.10.2012 and the assessee defended the earlier certificate dated 04.02.2011 submitted by it to the AO . The assessee submitted before ld. CIT(A) that the certificate dated 04.02.2011 is registered at S.No. 320 dated 13.01.2011. The assessee prayed before ld. CIT(A) to reject the certificate produced by the AO. The assessee submitted a certificate dated 18.12.2012 issued by SDM, Karchana addressed to Smt. Maya Gupta , the partner of the assessee firm and submitted that Aarazi Nos. 318, 243, 306 and 317 , Aarazi No. 318 is the remotest distance of which from the municipal limits , as per map no. 2 , by the road is 8.900 kms and as per map no. 3 , the distance is 13.400 kms. The said documents including maps are reproduced hereunder: MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 22 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 23 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 24 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 25 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 26 The ld. CIT(A) forwarded the documents submitted by assessee to AO for its comments. The AO submitted that land in question is approachable from two sides, one is via Nasika through a diversion road to the right and the other from Jaiswal Nagar, some 2-3 kms ahead from the former diversion. The AO made spot enquiries and submitted report to ld. CIT(A) that the land is question is 6.5 Kms via first diversion and 8 kms from the later diversion. The AO also submitted diagrams before the ld. CIT(A). Vide letter dated 29 th January , 2013, the AO was again asked by ld. CIT(A) to conduct the inquiry directly by confronting conflicting reports received from the revenue authorities. The AO finally submitted investigation report dated 4 th March 2013 , that summons were issued to SDM Karchana for ensuring accuracy in view of conflicting reports. The Naib Tahsildar appeared on behalf of SDM Karchana before the AO and filed a letter detailing therein the description of said plots from the limits of Allahabad Nagar Nigam. It was submitted by the AO that the farthest plot is 7.8Kms by road. The AO submitted copy of report submitted by SDM Karchana, which report dated 14.12.2012 was signed by survey team , Tehsildar Karchana , Lekhpal and one more person Naveen Kumar Srivastava (designation not clear) along with SDM Karchana. The said report dated 14.12.2012 is reproduced hereunder: MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 27 MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 28 In this report it is clear that the authorities have considered the application of Smt. Maya Gupta, partner of the assessee firm in measuring the distance of the plots in question with the municipal limits of Allahabad. The AO had reported that as per certificate , the Aarazi No. 327 is on main road of Mirzapur is the remotest plot in Village Newada , Samogra. Its distance is 7.200 Kms from the limits of Allahabad Nagar Nigam. The said plot has been shown in the map, route chart number 1 by the points A&B. Aarazi No. 318 is on the south of plot no 327 , 600 meters by the map. The total distance of the plot number 318 is 7.800 Kms. However, by second road route, the total distance is 8.900 kms from the Nagar Nigam , while by third road route , the distance of plots is 13.400 kms from Municipal limits of Allahabad. We have carefully gone through these certificates, maps, contentions of the assessee, the orders of authorities below, and it is an accepted position that for impugned ay: 2008-09 , we have to considered shortest road distance to measure the distance between the land in question and the Municipal limits of Allahabad, and not the aerial routes. So far as considering the shortest road distance , we have observed that there are three road routes to reach the land in question from Allahabad Municipal limits , and we are concerned with the shortest road route which is via Main Mirzapur road, and on perusal of the report dated 14.12.2012 which was signed by survey team , Tehsildar Karchana , Lekhpal and one more person Naveen Kumar Srivastava (designation not clear) along with SDM Karchana as well on perusal of maps, it is very clear that the shortest road route is from the Main Mirzapur Road . The Aarazi No 326 and 327 are on the main Mirzapur Road. The other plots are contiguous to these plots except Aarazi No. 243. As per this report dated 14.12.2012 , via Main Mirzapur Road, the distance of Aarazi No 327 which is on main Mirzapur Road is 7.200 Kms from Nagar Nigam Limit i.e. MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 29 SargamTalkies(ADA Mod), Naini , Allahaabad , which is also reflected as Point A and Point B in the map. We have also observed from this certificate that Aarazi No. 318 is on the south of Aarazi No. 327 , 600 meters by the map. The total distance of the Aarazi No. 318 is 7.800 Kms. From the municipal limits of Allahabad . We have to consider shortest road route, and hence we are not concerned with the other two road routes which are not the shortest road routes. Unfortunately, the assessee is relying vide certificate dated 18.12.2012 issued by Tehsildar , Karchana who in turn is relying on afore-stated report dated 14.12.2012, but mentioning the longer road routes number 2 and 3 to reach the land in question, but there is no whisper of road route number 1 via Main Mirzapur road to reach the land in question. Thus, we reject the reliance of the assessee on this report dated 18.12.2012. The ld. CIT(A) has passed well reasoned and speaking order, after detailed inquiries and principles of natural justice were duly complied with as the assessee was confronted with the all the material . It is also observed that ld. CIT(A) relied upon the certificates, reports and maps submitted by Land Revenue and Survey authorities who are Government Authorities assigned with duties of maintaining of land records and other relevant records connected thereto with measurement of land distance . Their reports can not be brushed aside lightly and has to be given weightage , although there is no doubt that conflicting reports were issued by these authorities, but the conclusive report dated 14.12.2012 made it very clear that there are three road routes to reach the land in question, while the shortest road route is from Main Mirzapur Road , and the distance of Aarzai No. 318 is only 7.800 Kms., which is well within 8 kms. . The Aarazi No 326 and 327 are on the main Mirzapur Road. The other plots are contiguous except Aarazi No. 243. The distance of Aarazi No 327 which is on main Mirzapur Road is 7.200 Kms from Nagar Nigam Limit i.e. SargamTalkies(ADA Mod), Naini , Allahabad , which is also reflected as Point A and Point B in the map. The decision relied upon by assessee in the case of MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 30 CIT v. K.R.N. Prabhakaran(HUF) (supra) infact supports the stand of Revenue as the Revenue is relying upon the certificates/reports issued by land revenue and survey authorities and are not relying on the report of the AO or any other officer/wing of Income-tax Department. The decision relied upon by assessee in the case of Smt. Sakunthala Rangarajan(supra) also does not support the assessee, as the distance measured by land revenue and survey authorities in the instance case were by access/approach road and it was not straight line or horizontal . Thus, we hold that the land in question is within 8kms from the Municipal limits of Allahabad and is a capital asset as defined u/s 2(14) and capital gains arising on the sale of land shall be chargeable to income-tax within the provisions of the 1961 Act. This effective issue is decided against the assessee. We order accordingly.” (Emphasis supplied by us) Thus, we hold that there is no merit in the contention raised by the assessee in its MA that the plots were situated beyond 8kms from the municipal limits of Allahabad, and these contentions of the assessee stand rejected. This MA lacks merit and is hereby dismissed. We order accordingly. 5. In the result, M.A. No. 06/Alld/2022 arising out of ITA no. 186/Alld/2013, for ay: 2008-09 stands dismissed. Order pronounced on 21/09/2022 at Allahabad in the open Court. Sd/- Sd/-Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIALMEMBER ACCOUNTANTMEMBER DATED: 21/09/2022 K.D. Azmi Allahabad MA No. 06/Alld/2022 arising out of ITA No. 186/ALLD/2013 M/s. Ganga Nursing Home , Allahabad v. DCIT Assessment Year: 2008-09 31 Copy forwarded to: 1. Appellant –Ms. Ganga Nursing Home, 17/19, K.G.Marg, Allahabad, U.P. 2. Respondent –Deputy Commissioner of Income Tax,Range-1, Allahabad, U.P. 3. CIT(A) , Allahabad 4. CIT, Allahabad, U.P. 5. Sr. DR, ITAT, Allahabad //True Copy// By order Assistant Registrar