Gujarat High Court
Thakorbhai Maganbhai Patel vs Income Tax Officer & on 10 August, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, A.J. Shastri
C/SCA/4756/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4756 of 2016
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THAKORBHAI MAGANBHAI PATEL....Petitioner(s)
Versus
INCOME TAX OFFICER & 1....Respondent(s)
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Appearance:
MR RK PATEL, ADVOCATE for the Petitioner(s) No. 1
MR KM PARIKH, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 10/08/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. While hearing this petition challenging a notice for reopening of the petitioner's assessment for the assessment year 200809, we noticed that prime question is of charging capital gain tax to the petitioner upon sale of his agricultural land. Case of the petitioner is that such land was situated beyond a distance of 8 kms from the limit of Vadodara Municipal Corporation and was therefore, in terms of section 2(14)(iii) of the Income Tax Act not exigible to capital gain tax. In this respect during the Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Sep 15 01:59:41 IST 2016 C/SCA/4756/2016 ORDER original assessment, the petitioner had relied on a certificate dated 16.01.2013 issued by one Shri K.D.Patel, Executive Engineer, Road and Building Department, Vadodara, in which he had certified that the distance between the limit of Vadodara Municipal Corporation and village:Hanumanpura is more than 8 kms. A copy of this certificate tendered by the petitioner is taken on record.
2. In the reasons recorded by the Assessing Officer for issuing the impugned notice for reopening, he has referred to a statement of Shri Sohan M. Patel, Additional Assistant Engineer, Vadodara Municipal Corporation, recorded on oath on 10.07.2013, in which he has stated that the land in question is situated at a distance not more than 2 kms from the outer limits of Vadodara Municipal Corporation. We notice that the department has obtained a certificate dated 11.03.2016 issued by the Executive Engineer, Road and Building Department, Vadodara, in which, it is stated that the distance between the outer limit of Vadodara Municipal Corporation and Hanumanpura bus stand is 2.8 kms. The incometax authorities also have a certificate dated 12.07.2013 issued by Deputy Municipal Commissioner, Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Sep 15 01:59:41 IST 2016 C/SCA/4756/2016 ORDER Vadodara Municipal Corporation, in which it is stated that the shortest aerial distance between the survey numbers in question ranges between 0.434 kms to 1.708 kms.
3. The later certificate referred to above, raise a serious doubt about the veracity of the first certificate dated 16.01.2013 issued by the Executive Engineer Shri K.D.Patel. If the aerial distance between the plot of land and the outer limit of Vadodara Municipal Corporation is barely a half km., it seems very unlikely that a distance by road between the Vadodara Municipal Corporation limits and the village in question would exceed 8 kms. We would therefore like to ascertain correct facts.
4. Let the petitioner join the Secretary, Road and Building Division, Government of Gujarat, as an additional respondent.
5. Let there be NOTICE to the newly added respondent, returnable on 31.08.2016. On the said date, he shall supply following details:
I. The exact distance by shortest road between the outer limit of Vadodara Municipal Corporation Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Sep 15 01:59:41 IST 2016 C/SCA/4756/2016 ORDER as on 31.03.2008 and lands bearing revenue survey numbers 43, 44, 45, 46 and 65 and block No.23paiki3(23A) of village:Hanumanpura. II. The authority shall also indicate whether Shri K.D.Patel, Executive Engineer, Road and Building Department, Vadodara, is still in service. If so, his affidavit shall be filed stating as to on what basis the said certificate dated 16.01.2013 was issued by him.
6. For said purpose, alongwith this order, the newly added respondent shall also be supplied a copy of certificate dated 16.01.2013. Direct service to the newly added respondent is permitted.
(AKIL KURESHI, J.) (A.J. SHASTRI, J.) ANKIT Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Sep 15 01:59:41 IST 2016