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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI P.K. BANSAL & SHRI AMARJIT SINGH
PER AMARJIT SINGH, J.M.
The assessee has filed the present appeal against the impugned
order dated 23rd November 2012, passed by the learned Commissioner
(Appeals)–I, Nagpur, relevant to the assessment year 2007–08. The
effective ground raised by the assessee is reproduced below:–
“1. The Hon'ble Commissioner of Income Tax (Appeals)-!, was totally arbitrary and unjustified in not accepting the claim of the assessee that the agricultural land in question is not a capital assets as per section 2(14) (iii) (a) and (b) and surplus arising on sale of the same is not liable to tax.
The Hon'ble Commissioner of Income Tax (Appeals)-I has taken a wrong and unjustified method of calculation of distance of land in question by a straight line distance on horizontal plane area, i.e. crow's flight instead of motorable road.
2 M/s. Rachana Constructions
The Hon'ble Commissioner of Income Tax (Appeals)-I was arbitrary in rejecting the certificate of Patwari (Revenue land record keeper) which certifies that the distance of the agricultural land is more than 8 km from municipal limit.
The direction of Hon'ble Commissioner of Income Tax (Appeals)-I to assess the surplus amount on sale of the agricultural land as capital gain income is unjustified, unwarranted and bad in law.
The Assessee craves leave to, add to alter, amend, modify, substitute, delete and / or rescind any of the ground/grounds of the appeal on or before the final hearing of the appeal.”
Brief facts of the case are that a search and seizure action was conducted on 13th January 2009, under section 132 of the Act at the
business premises of the assessee. During the course of search,
certain books of accounts, documents were seized. The assessee had purchased land on 22nd August 2005, being agricultural land of 3.43
hectares at Mouza Kanhalgaon, Ph no.38, Tehsil and District Nagpur,
S.No.59 for an aggregate amount of ` 36,91,480. The said property
was sold on 18th November 2006 for ` 1,08,80,000. Thus, there was
gain of ` 71,88,520 which was liable for capital gain under the Act. The
Assessing Officer has, therefore, initiated proceedings under section
147 of the Act and issued notice under section 148 which was served upon the assessee on 10th January 2011. The assessee has claimed
that the profit from sale of land in question is exempt from tax as it is
an agricultural land and not a capital asset according to the provisions
of section 2(14) of the Act. Assessee has stated that the actual
distance between the property at mouza Kanhalgaon, Ph. no.38, Tehsil
3 M/s. Rachana Constructions and District Nagpur, S.no.59, and the municipal jurisdiction is more
than 8 km and furnished a certificate from the Patwari in support of its
claim. The Assessing Officer has rejected the appellant's claim holding
that the property in question was within the specified distance of the
municipal jurisdiction of Nagpur and therefore brought to tax an
amount of ` 71,88,520 under the head short term capital gain. In this
connection, the Assessing Officer has relied on the letter received by NMC in response to notice under section 133(6) dated 24th October
2011, stating that the distance to Kanhalgaon is 5.3 km. from NMC
limits. Further, the Assessing Officer has also ascertained the aerial
distance with the help of the Google Earth Software which showed that
the distance is less than 8 km. from municipal limits. The Assessing
Officer has relied on section 11 of the Genera Clauses Act, 1897, in
support that distance must be measured not by road distance but by
the shortest distance "as the crow flies". Being aggrieved by this order
of the Assessing Officer, the assessee filed appeal before the first
appellate authority wherein the learned Commissioner (Appeals)
upheld the order of the Assessing Officer by dismissing the appeal of
the assessee. Being aggrieved, the assessee is in further appeal before the Tribunal.
ISSUE NO.1 TO 4
4 M/s. Rachana Constructions 3. Under these issues, the claim of the assessee relates to
assessment of surplus arising on sale of agricultural land at `
71,88,520 on account of capital gain. Learned Counsel for assessee submitted that the assessee firm has acquired agricultural land on 22nd August 2005. The aforesaid agricultural land was sold on 18th
November 2006. The revenue record being extracts in Form no.7/12
were submitted before Assessing Officer which indicate that the
agricultural lands held by assessee in revenue records is shown as
agricultural land. He submitted that the assessee has never applied for
permission to use agricultural lands for non-agricultural purpose nor it
was converted for non agricultural use by any authority till the date of
sale. The learned Counsel for assessee submitted that there is no
evidence on record to show that the agricultural land owned by
assessee was put to use for the purpose other than agricultural
activity. He submitted that the fact on record is that agricultural land
sold by assessee is located beyond 8 kms. from Municipal Limit of
Nagpur and same is not within the radius of 8 kms. of any Municipal
Corporation. The agricultural land thus is not capital asset as defined
under section 2(14) of the Act. The learned Counsel for assessee
submitted that the agricultural land sold by assessee being not a
capital asset in terms of provisions of section 2(14), surplus arising on
sale of same is not exigible to tax under head long term capital gain.
The learned Counsel submitted that it is settled proposition of law that
5 M/s. Rachana Constructions when on the date of purchase and on the date of sale if the character
of asset sold is agricultural land, the surplus arising on same is not
exigible to tax. In support of this contention the learned Counsel relied
upon the following case laws:–
Sanjay Nagorao Paidlewar, ITA No.112/Nag/2012, order dated 22/03/2013; 2. Nitish Ramesh Chandra Chordia ITA No.120 of 2013 order dated 30/03/2015; 3. DLF United Ltd. vs. CIT (1996) 217 ITR 333 (Del.); 4. CIT vs. M/s. D.L.F. United Ltd. (SLP)(Civil) CC 1727-1729/98; 5. Hindustan Industrial Resources Ltd. vs. ACIT (2011) 331 ITR 59; 6. CIT vs. Smt. Debbie Alemao (Page 41,42);
The learned Counsel for assessee further submitted that surplus
arising on sale of agricultural land is in the nature of agricultural
income in terms of provisions of section 2(1A) and thus the same is
not exigible to tax. In support of this contention, the learned Counsel
relied upon the following case laws:–
1) ITAT order in ITA No.362/Ju/2010 in the case of Smt. Supriya Kanwar vide order dated 13/05/2014
2) (2001) 247 ITR 150(SC) Singhai Rakesh Kumar vs. Union of India & Ors.
3) (1981) 128 ITR 87(Bom.) Manubhai A. Sheth & Ors. v/s ITO.
6 M/s. Rachana Constructions 5. The learned Counsel for assessee further submitted that the
Assessing Officer and the learned Commissioner (Appeals) both has
referred to enquiry made from NMC under section 133(6) in respect to
distance from Municipal Limits. Perusal of inquiry report indicates that
it is aerial distance and not by road. In view decision of Bombay High
Court in the case of Shishir Diote in ITA no.122 of 2013 judgment dated 30th March 2015 distance has to be measured by road and not
aerial distance for the year under consideration.
Learned Departmental Representative relied upon the
observations of the authorities below.
We have heard the rival contentions and perused the material
available on record. In the present case, the addition has been made
under the head “capital gain” in respect to surplus arising on sale of
agricultural land which was claimed exempt in the return of income.
The Assessing Officer has verified by making enquiry from Nagpur
Improvement Trust (NIT) by issue of notice under section 133(6) and
came to conclusion that agricultural land is situated at 5.3kms. (aerial
distance as per crow fly method) and thus surplus arising on sale of
agricultural land is exigible to tax at the hands of assessee, as it is
capital asset under section 2(14) of the Act. The learned Commissioner
(Appeals) upheld the order of the Assessing Officer, as it was held by
the Assessing Officer that the distance of land in question is to be
7 M/s. Rachana Constructions measured not by motorable road but in straight line on a horizontal
plane. The Co–ordinate Bench of the Tribunal, Nagpur, in the case of
Shri Nitesh P. Choradia, ITA no.113/Nag./2012, has held at Para–15
that he distance of 8 Kms. has to be measured through approach road
and not by straight line distance on horizontal plane or crow’s flight.
The aforesaid decision of the Co–ordinate Bench of the Tribunal,
Nagpur, has been upheld by Hon’ble Jurisdictional High Court in ITA no.12 of 2013 vide judgment dated 30th March 2015. The provisions of
section 2(14) of the Act, have been amended from the assessment
year 2014-15, wherein it is provided that distance is to be measure
aerially. This amendment has been noted by the Hon’ble Jurisdictional
High Court at Para–15 of the judgment and the same is held to be applicable prospectively. The Circular no.3/240 dated 24th January
2014 shows that amendment in the definition of “Capital Asset” will
take effect prospectively. In the appeal under consideration is for the
assessment year 2007-08 and thus, subsequent amendment made to
section 2(14) of the Act will not be applicable. The NIT, in reply to
enquiries made under section 133(6) of the Act by Assessing Officer, had given response vide its communication dated 24th November
2011, wherein aerial distance is specified at 5.30 kms. from the
municipal limits of Nagpur. It is this certificate which is considered by
the Assessing Officer ant the learned Commissioner (Appeals) to hold
that agricultural land of assessee is capital asset being located within 8
8 M/s. Rachana Constructions Kms. from municipal limit. The certificate issued by Talati dated 12th
September 2008 as regard to distance by approach road is placed in
paper book at Page–61 which shows that agricultural land is situated
beyond 8 kms. from Municipal limits of Nagpur. As the agricultural
land is situated beyond 8 Kms. from municipal limits of Nagpur by
approach road the agricultural land sold by assessee is not capital
asset under section 2(14) of the Act. Thus, respectfully following the
decision of the Hon’ble Jurisdictional High Court in ITA No.120 of 2012
in case of Nitish Rameshchandra Choradia (supra) which squarely
applies to the facts in the present case, we hold that profit on sale of
agricultural land situated beyond 8 Kms. of municipal limit as per
approach road is not exigible to tax. In case of assessee, agricultural
land sold is situated beyond 8 Kms. of municipal corporation by
approach road and is not capital asset as defined under section 2(14)
of the Act, as is evident from certificate issued by Talati. The
agricultural land not being capital asset and surplus arising on sale of
same is not exigible to tax. Considering the totality of facts in the
present case, we hold that the addition made by Assessing Officer at `
71,88,520 is in respect to the surplus arising on agricultural land is
not exigible to tax and is directed to be deleted. Thus, the grounds
raised by the assessee are allowed.
9 M/s. Rachana Constructions
In the result, assessee’s appeal is allowed.
Order pronounced in the open Court on 28.06.2017
Sd/- Sd/- AMARJIT SINGH P.K. BANSAL JUDICIAL MEMBER VICE PRESIDENT
NAGPUR, DATED: 28.06.2017
Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Nagpur City concerned; (5) The DR, ITAT, Nagpur; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary (Dy./Asstt. Registrar) ITAT, Nagpur