SAROJ KUMAR KARMAKAR,KOLKATA vs. ACIT, CIR-47, KOLKATA, KOLKATA

Date of concluding the hearing : December 19th, 2024 Date of pronouncing the order : December 20th, 2024 ORDER

Per Sanjay Garg, Judicial Member:

3. The sole issue involved in this appeal as to whether the land sold by the assessee would fall in the definition of capital asset as per section 2(14) of the Act or would fall within the exception clause (iii) to section 2(14), the same being agricultural land situated more than 8 kms. from the local limits of the Municipal Corporation and thereby would not be exigible to levy of capital gains tax on the sale consideration received by the assessee.

4. A perusal of the impugned order of the Ld. CIT(A) would reveal that the assessee had furnished a certificate from one Shri Prabir Kumar Choudhury, Chartered Engineer, Valuer and Surveyor of Calcutta High Court in which he had certified that the land of the assessee was approximately 26 kms. from Howrah Municipality which was the nearest municipal office. However, the said certificate was rejected by the Ld. CIT(A) observing that the said certificate did not specify as to whether the aforesaid distance of 26 kms. was from the office of Howrah Municipality or from the outer limits of the Municipality. Further, that the certificate did not mention that the distance of 26 kms. was aerial distance or road distance. He further observed that even on verification from Google Map, it was found that the road distance from Howrah to Beldubi Gram Panchayat was not more than 15 kms. He further observed that if the distance is measured aerially from local limits of Howrah Municipality, the distance would be within 8 kms. He, therefore, held that the land of the assessee would fall in the definition of ‘capital asset’ as provided u/s. 22(14) of the Act, thus, exigible to capital gains tax.

5. We note that the assessee has placed on file a copy of circular No. 17 of 2015 dated 06.10.2015 of the CBDT, whereby, the CBDT has taken a considerate decision in the light of the decision of the Nagpur Bench of the Hon’ble Bombay High Court vide order dated 30.03.2015 passed in of 2013 in the case of Smt. Maltibai R. Kadu that the amendment brought in the statute prescribing distance to be measured aerially would apply prospectively i.e. in relation to Assessment Year 2014-15 and subsequent assessment years. The Board has taken the decision that prior to assessment Page 2 of 3 Assessment Year: 2013-14 Saroj Kumar Karmakar year 2014-15, the distance between municipal limit and agricultural land is to be measured having regard to the shortest road distance. The Board has specifically directed that the revenue would not contest this issue any further and no appeals would be filed on this ground. In the light of the aforesaid Board Circular, it is apparent from the impugned order of the Ld. CIT(A) that the distance of the agricultural land of the assessee even as per the Ld. CIT(A) was about the 16 kms. from Beldubi Gram Panchayat and there was no denial of the fact that the distance of the agricultural land of the assessee from the limits of Howrah Municipality was more than 8 kms. The Ld. DR could not rebut the aforesaid facts on the file.

6. In view of this, we do not find justification on the part of the lower authorities in making/confirming the impugned additions and the same are accordingly, ordered to be deleted.

Sd/- Sd/- [Sanjay Awasthi] [Sanjay Garg] Accountant Member Judicial Member Dated:20.12.2024 Jd., Sr.P.S) Copy of the order forwarded to:

1. 1. Appellant – Saroj Kumar Karmakar 2. Respondent – ACIT, Circle-47, Kolkata..

3. CIT(A)-14, Kolkata.

4. Pr. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata

Page 3 of 3