Income Tax Appellate Tribunal - Jaipur
Dinesh Kumar Jain, Jaipur vs Ito, Jaipur on 25 November, 2016
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 372/JP/2015
fu/kZkj.k o"kZ@Assessment Year : 2011-12
Dinesh Kumar Jain, cuke Income Tax Officer,
75, Sunder Nagar, Malviya Vs. Ward 6(1),
Nagar, Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ABTPJ 8816 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA)
jktLo dh vksj ls@ Revenue by : Sh. Prem Prakash Meena (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 25/11/2016
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 01/12/2016
vkns'k@ ORDER
PER SHRI VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against the order dated 26/02/2015 of the learned CIT(A)-II, Jaipur for A.Y. 2011-12. The sole ground of appeal raised by the assessee is as under:-
"The ld CIT(A) has erred on facts and in law in confirming the action of A.O. in holding that the agricultural land sold by the assessee is a capital asset within the meaning of Section 2(14)(iii) of the Income Tax Act, 1961 by not considering the arguments of assessee in its entirety 2 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO and thereby assessing the income from capital gain on sale of such land at Rs. 69,30,140/-."
2. Briefly the facts of the case are that the assessee has executed a sale deed for sale of agricultural land having khasra No. 10 to 15, 18 to 21, 23/479, 30, 51 measuring 1/4th share of 3.2 hectare land located at village Salingrampura, Tehsil- Sanganer, district- Jaipur to Shri Pankaj Chaturvedi, Prop. M/s Vinayak Land Developers vide sale deed executed on 21/09/2010 for sale consideration of Rs. 87,40,000/-, which was valued by the Sub-Registrar for charging of stamp duty at Rs. 89,47,500/-. It is submitted before the Assessing Officer by the assessee that sale proceeds of agricultural land at village Salingrampura was exempted and received in gift from brother Rs. 87,40,000/-. The assessee filed copy of the sale deed and evidence of acquisition of land as gift from his brother. The ld Assessing Officer also enquired from the Sub-Registrar, Sanganer-1 and Commissioner of Jaipur Nagar Nigam for stamp duty and to find out the distance from the municipal limit of the land sold. After considering the assessee's reply, the ld Assessing Officer has held as under:-
(i) The assessee has concealed the fact regarding sale of above mentioned immovable property which was sold for a disclosed consideration of Rs. 87,40,000/- as against 3 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO evaluated value by the Sub Registrar for charging stamp duty at Rs. 89,47,500/-.
(ii) The assessee has not disclosed the above transaction either in the AIR or in the computation of total income.
(iii) In the return of income field the assessee has not claimed any exemption either on account of the land beyond the purview of definition of Capital asset in terms of sec. 2 (14) as the agricultural land beyond 8 kms of the Municipal limit of Jaipur Nagar Nigam, Jaipur. It is also admitted fact that there was no claim in the return of income for deduction u/s 54F for making investment in purchase of new residential house.
(iv) The contradictory stand taken by the assessee during the course of his examination vis-a-vis submission filed during assessment proceedings in the form of computation of total income.
(v) The assessee has furnished fabricated documents in the form of copy of sale deed wherein it was inserted that the impugned land was more than 10 kms from the municipal limits of Jaipur Nagar Nigam, Jaipur. This issue is discussed at length in the show cause notice issued as such the assessee is guilty of furnishing fabricated documents to defraud revenue during the course of scrutiny assessment proceedings.4 ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO
(vi) The reports received from the Tehsildar Sanganer and Tehsildar Nagar Nigam Jaipur ore scanned in assessment order:-
(vii) The assessee was owner of 3-4 residential flats constructed at 75 Sunder Nagar, Malviya Nagar, Jaipur and was also owner of a number of other plots as mentioned in the Balance Sheet out of which some are residential houses as such the assessee was having more than one residential house as on the date of transfer of original asset.
Accordingly, the assessee was not eligible for claiming deduction u/s 54 F of the Income tax Act, 1961.
(viii) The assessee has not taken possession of the flat booked in Garden View apartment within the allowed period as such otherwise also the investment made in flat is not eligible for claiming deduction u/s 54 F of the Income tax Act, 1961.
(ix) The assessee has also purchased a residential house bearing No. 262/329 Pratap Nagar, Jaipur during the period F.Y. 2010-11 as such has committed default as mentioned in section 54 F (2) of the Income tax Act, 1961 as he has purchased residential house other than the new asset within the period of one year from the date of transfer of original asset.
The ld Assessing Officer further held that the assessee has sold capital asset which was not disclosed in the return of income and the 5 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO information was not filed in AIR as well as the assessee is not eligible for claiming deduction u/s 54F of the Act and has furnished fabricated document in the form of copy of sale deed by tempering page No. 2 wherein it was mentioned that the impugned land was located at more than 10 kms from the limits of Jaipur Nagar Nigam, Jaipur. Accordingly, the ld Assessing Officer calculated the long term capital gain at Rs. 75,85,570/-.
3. Being aggrieved by the order of the ld Assessing Officer, the assessee carried the matter before the ld CIT(A), who had confirmed the addition by observing as under:-
"4.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. Ground no. 3(i) relates to the issue whether the land sold by the appellant is a capital asset within the meaning of section 2(14)(iii)(b). In this case, the Assessing Officer conducted inquires with the Sub Registrar, Sanganer-I and the Commissioner, Jaipur Nagar Nigam to ascertain the distance of the impugned land from the Municipal Limits of Jaipur Nagar Nigam. The reply given by the Tehsildar revealed that this land is situated around 5 kms from the local limit of the municipality at village Murilipura, as per the road distance. The Tehsildar of Sanaganer has also reported that this land is situated 6 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO 2.5 kms away from the municipal limit. The appellant has stated that the distance of 8 kms has to be ascertained on the date of sale. It has also been argued that the report of the Tehsildar is incorrect because on the date of sale there was no direct road between Murilpura to the land. It is to be noted that the appellant has not furnished any evidence or any specific particulars to show that the impugned land was situated beyond a distance of 8 kms from the Municipal limit on the date of sale. On the contrary, the two reports submitted by the revenue authorities clearly state that the impugned land was located within a distance of 8 kms from the Municipal limit. In view of the above reports given by the revenue authorities, it is held that the impugned land was situated within a distance of 8 kms from the Municipal limit (in fact only 2.5 kms away) and therefore is a capital asset in view of the provisions of section 2(14)(iii)(b). Therefore, the stand of the Assessing Officer in holding that this agricultural land is a capital asset, is upheld. Ground no.3 (i) is dismissed."
4. Now the assessee is in appeal before us. The ld AR of the assessee has submitted that the assessee sold an agricultural land at Village Saligrampura, Tehsil Sanganer on 21.09.2009 for Rs.87,40,000/-. For stamp duty purpose, its value was assessed at Rs.89,47,500/-. The 7 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO AO obtained report from Tehsildar Sanganer who reported that the land sold is situated at 2.5 kms of the Municipal limits. Report is also obtained from the office of Nagar Nigam, Jaipur where it was stated that the land sold by the assessee is 5 kms of the Municipal limits. Accordingly, the AO held that the agricultural land sold by the assessee is a capital asset u/s 2(14) of the Act and determined the long term capital gain at Rs.75,85,570/-.
He has further submitted that before the Ld. CIT(A), assessee has claimed that the distance of 8 kms for treating an agricultural land as capital asset is to be seen with reference to the municipal limit existing on the date of the notification published in the Official Gazette and not the municipal limit existing on the date of sale. The Notification is dated 06.01.1994 and therefore the distance is to be measured with reference to the limit of municipality existing on that date. Reliance was placed on the decision of Hon'ble ITAT, Jaipur Bench in case of Dr. Subha Tripathi in ITA No. 1129/JP/11 for AY 2008-09 dated 24.05.2013. It was further claimed that the certificate obtained by the AO do not specify as to what was the municipal limit of Jaipur as on 06.01.1994. Further, on 21.09.2010, when the agricultural land was sold, there was no direct 8 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO approach road from Murlipura to Gram Saligrampura. It was requested that these facts may be directly got verified from office of Nagar Nigam/ Tehsildar Sanganer. These contention of the assessee are mentioned at Pg 8 of the CIT(A) order. Thereafter, the Ld. CIT(A) by relying on the two reports of the revenue authorities held that the land under consideration is a capital asset.
It was submitted that the Ld. CIT(A) at Pg 10 of his order observed that assessee has stated that distance of 8 kms has to be ascertained from the date of sale. This is incorrect as assessee has claimed that distance is to be ascertained with reference to the limits of Municipality as existing on the date of notification and not on the date of sale. He further observed that AO has submitted two reports which states that lands are situated within a distance of 8 kms from the Municipal limit but assessee has not furnished any evidence to show that the land was situated beyond a distance of 8 kms from the Municipal limit on the date of sale. In observing so, the Ld. CIT(A) did not consider the decision of Hon'ble ITAT relied by the assessee. He also did not consider the claim of the assessee that there was no direct road from Murlipura to Gram Saligrampura and that the distance is to be measured by approach road. 9 ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO The request of the assessee to get these facts directly verified from Nagar Nigam/ Tehsildar Sanganer was also not considered. The law is settled that the distance is to be measured with reference to the Municipal limit as existing on the date of notification dated 06.01.1994 and by the approach road and therefore, the matter should be set aside to the AO to get these facts verified from the Tehsildar/ Nagar Nigam and thereafter determined whether the agricultural land sold is a capital asset or not in terms of section 2(14) of the Income Tax Act, 1961. Therefore, he prayed to allow the appeal of the assessee.
5. At the outset, the ld DR has vehemently supported the order of the ld CIT(A).
6. We have heard the rival contentions of both the parties and perused the material available on the record. In the instant case, the assessee sold an agricultural land at village Salingrampura, Tehsil- Sanganer, district- Jaipur on 21/09/2009. The revenue held that the agricultural land sold is a capital asset u/s 2(14) of the Act as it is within 8 KM from the municipal limit whereas the assessee's argument is that this limit is to be reckoned from the date of notification dated 06/1/1994. Further on 21/09/2009 whether when the agricultural land 10 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO was sold, there was no direct approach from village Murlipura to village Salingrampura.
6.1 To appreciate the controversy, it will be appropriate to refer to the relevant provisions of section 2(14) of the Act:
"2(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--
(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 kilometers, 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, urbanization of that area and other relevant considerations, specified in this behalf by notification in the Official Gazette."
6.2 The above definition of capital asset to include the agriculture land was brought on the statue by the Finance Bill, 1970. It would therefore be relevant to refer to the statement of objects and reasons while introducing the amendment to the definition of capital asset 11 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO contained in section 2(14) by the Finance Bill, 1970 reported in 75 ITR (St.) 69 and the relevant extracts reproduced as under:
"Sub-clause (a) seeks to amend clause (14) of section 2 of the Income-tax Act which defines the term 'capital asset'. The amendment seeks to bring within the term 'capital asset' agricultural land situated within the limits of any 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 having a population of 10,000 or more according to the last census for which the figures have been published before the first day of the previous year. Further, agricultural land situated in areas lying within a distance not exceeding 8 kilometers from the local limits of such municipalities or cantonment boards will also be covered by the amended definition of 'capital asset', if such areas are, having regard to the extent of and scope for their urbanisation and other relevant considerations, notified by the Central Government in this behalf. The effect of the proposed amendment will be that capital gains arising from the transfer of agricultural land situated in municipal or other urban areas or notified adjoining areas will be liable to income-tax for the assessment year 1970-71 and subsequent years......."
"Agricultural land which is situated outside such municipal or other urban areas or the notified adjoining areas will, however, continue to be excluded from the term "capital asset" and no capital gains tax will be payable with reference to the transfer of such agricultural land, as hitertho."
6.3 In context of section 2(14)(iii)(b) of the Act, we now refer to the notification dated 6th January, 1994, issued by the Central Government reported in 205 ITR (St.) 121, the relevant extracts reproduced as under:
12ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO "Now, therefore, in exercise of the 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 Income-tax Act, 1961 (43 of 1961), and in supersession of the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue and Insurance) No. S. O. 77(E), dated February 6, 1973 see [1973] 89 ITR (st) 145., the Central Government having regard to the extent of, and scope for urbanization of the areas concerned and other relevant considerations, hereby specifies the areas shown in column (4) of the Schedule hereto annexed and falling outside the local limits of municipality or cantonment boards, as the case may be, shown in the corresponding entry in column (3) thereof and against the State or Union Territory shown in column (2) thereof for the purposes of the abovementioned provision of the Income-tax Act, 1961 (43 of 1961).
No. Name of the Name of the municipality Details of areas falling State or or cantonment board outside the local limits of Union falling in the State/Union municipality or -
Territory Territory mentioned cantonment board, etc.,
under column (2) mentioned under column
(3).
1 2 3 4
19. Rajasthan
7. Jaipur Areas up to a distance of
8 kms. from the
municipal limits in all
directions
** ** ** **
Explanation 1.(1) In this notification, "Municipality" shall mean any areas which is comprised within the jurisdiction of a Municipality (whether known as a municipality, municipal corporation, notified areas committee, town areas committee, town committee or by any other name) which has a population of not less than ten thousand according 13 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO to the last preceding census of which the relevant figures have been published before the first day of the previous year. (2) The reference to municipal limits or the limit of Cantonment Board in the schedule to this notification is to the limits as existing on the date on which the limits as existing on the date on which the notification is published in the Official Gazette."
6.4 A perusal of the above provisions read with the notification makes it clear that what is intended to be covered in the term "capital asset" is agricultural land comprised within the jurisdiction of a municipality and within the specified distance from the local limits of municipality or other local bodies mentioned therein as specified in the notification issued by the Central Government. As per sub-clause (b) of clause (iii) of Section 2(14), the notification of the Central Govt. is therefore mandatory to bring the land in the definition of capital asset which is not located within the limits of the Municipality but located within the distance of 8 kms from the local limits.
6.5 We now refer to the decision of the Coordinate Bench in case of Smt. (Dr.) Subha Tripathi (supra) which has been relied upon by the ld AR. The operative part of the decision is reproduced as under:
"2.7 We have considered the rival submissions as well as the materials on record. The question arises for our consideration and adjudication is whether the land in question though located beyond 8 kms from the 14 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO Municipal Limits of Jaipur Municipality as on the date of notification dated 06-01-1994 but subsequently it falls within the distance of 8 kms from the Municipal Limits due to the expansion of the Municipal Limits would still be regarded as agricultural land not falling in the definition of capital asset in terms of Section 2(14)(iii)(b) of the Act. There is no dispute that Jaipur Municipality has been duly notified vide said notification dated 6-01-1994 and as on the date of said notification, the land in question was beyond 8 kms from the Municipal Limits exists at that point of time. The dispute arises because of the expansion of Municipal Limits and thereby the said distance from the Municipal Limits as on the date of sale of the land in question is only 2 kms and thereby the authorities below have treated the land in question as not falling under the exclusion clause of Section 2(14)(iii)(b) of the Act. There is no quarrel on the point that as per sub-clause (b) of clause (iii) of Section 2(14), the notification of the Central Govt. is mandatory to bring the land in the definition of capital asset which is not located within the limits of the Municipality but located within the distance of 8 kms from the local limits. So far, the agricultural land which is located in the limits of Municipal Limits, the same will be treated as capital asset and no further requirement is to be examined. Since the land in question is located outside the local limits of Municipality, therefore, in order to determine whether the land in question falls under mischief of sub- clause (b) of Section 2(14(iii) of the Act, the distance of 8 kms has to be taken into account in terms of notification dated 6-01-1994. As per explanation 2 of the said notification dated 6-01-1994, the Municipal Limits is to be the limits as existing on the date on which the notification is published in the official gazette. We quote the explanation 2 of the notification (supra) as under:-
"(2) The reference to the municipal limits or the limit of Cantonment Board in the Schedule to this notification is to the limits as existing on the date on which on which the notification is published in the official gazette."15 ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO If the stand of the Revenue is accepted that the distance of 8 kms should be considered from the Municipal Limit exists as on the date of the sale of land then it would render the notification issued by the Central Govt. as ineffective and unworkable/otios. As it is made clear by explanation 2 of the said notification that Municipal Limits is to be considered as existing on the date on which notification is published in the official gazette, therefore, the date of notification is relevant and material point to determine the distance of 8 kms from Municipal Limits. There is no amendment or withdrawal of the said notification except a recent amendment has been brought in the statute by the Finance Act 2013 whereby the requirement of said notification has been dispensed with for invoking sub-clause (b) of clause (iii) of Section 2(14) of the Act w.e.f. 01-04-2014. Thus it is discernible from the notification dated 06- 01-1994 and the recent amendment in the statute whereby the said notification has been dispensed with that the distance of 8 kms has to be considered from the Municipal Limits as exists on the date of notification for the purpose of invoking sub-clause (b) of clause (iii) of Section 2(14) of the Act. Accordingly we hold that the land in question which was located beyond 8 kms from the Municipal Limits as on 6-01- 1994 when the notification was published in the official gazette, the same would fall under the exclusion clause of the term 'capital asset' as per provisions of 2(14)(iii)(b) of the Act."
6.6 The Coordinate Bench while delivering the above decision has referred to the decision of the Hon'ble Karnataka High Court in case of CIT v. Madhukumar N. (HUF) [2012] 208 Taxman 394/23 taxmann.com 341 (Kar.) where the Hon'ble High Court has laid down the following proposition in law:
16ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO "9. An agricultural land in India is not a capital asset but becomes a capital asset if it is the land located under Section 2(14)(iii)(a) & (b) of the Act. Section 2(14) (iii) (a) of the Act covers a situation where the subject agricultural land is located within the limits of municipal corporation, notified area committee, town area committee, town committee, or cantonment committee and which has a population of not less than 10,000.
10. Section 2(14)(iii)(b) of the Act covers the situation where the subject land is not only located within the distance of 8 kms from the local limits, which is covered by Clause (a) to section 2(14)(iii) of the Act, but also requires the fulfillment of the condition that the Central Government has issued a notification under this Clause for the purpose of including the area up to 8 kms, from the municipal limits, to render the land as a "Capital Asset.
11. In the present case, it is not in dispute that the subject land is not located within the limits of Dasarahalli City Municipal Council therefore, Clause (a) to section 2(14][iii] of the Act is not attracted.
12. However, though it is contended that it is located within 8 knits,, within the municipal limits of Dasarahalli City Municipal Council in the absence of any notification issued under Clause (b) to section 2(14)(iii) of the Act, it cannot be looked in as a capital asset within the meaning of Section 2(14)(iii)(b) of the Act also and therefore though the Tribunal may not have spelt out the reason as to why the subject land cannot be considered as a 'capital asset' be giving this very reason, we find the conclusion arrived at by the Tribunal is nevertheless the correct conclusion."
6.7 In light of above, the position in law is clear that section 2(14)(iii)(b) of the Act covers the situation where the subject land is not only located within the distance of 8 kms from the local limits, which is covered by Clause (a) to section 2(14)(iii) of the Act, but also requires 17 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO the fulfillment of the condition that the Central Government has issued a notification under this Clause for the purpose of including the area up to 8 kms, from the municipal limits, to render the land as a "Capital Asset.
In other words, whether the land in question falls under mischief of sub- clause (b) of Section 2(14)(iii) of the Act, the distance of 8 kms has to be taken into account in terms of notification dated 6-01-1994. As per explanation 2 of the said notification dated 6-01-1994, the Municipal Limits is to be the limits as existing on the date on which the notification is published in the official gazette. There is no amendment or withdrawal of the said notification except the amendment brought in the statute by the Finance Act 2013 whereby the requirement of said notification has been dispensed with. The amendment by the Finance Act 2013 is with effect from 01-04-2014 and therefore, applies prospectively in relation to the assessment year 2014-15 and subsequent assessment years.
6.8 Regarding the issue about measurement of distance, the contention of the Ld AR is that there was no direct road from Murlipura to Gram Salimgrampura and that the distance is to be measured by the approach road. The issue is no more rest integra and is fairly settled 18 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO now. For the year under consideration, the distance has to be measured by the approach road. The amendment brought in by the Finance Act, 2013 to measure the distance aerially is effective from 01- 04-2014 and therefore, applies prospectively in relation to the assessment year 2014-15 and subsequent assessment years. For the purposes of guidance, we refer to the decision of Hon'ble Punjab and Haryana High Court in case of Commissioner of Income-tax-II, Ludhiana vs. Satinder Pal Singh [2010] 188 TAXMAN 54 (PUNJ. & HAR.) wherein the Hon'ble High Court has held as under:
"6. A perusal of the aforesaid provision shows that 'capital asset' would not include any agricultural land which is not situated in any area within such distance as may be specified in this behalf by a notification in the Official Gazette which may be issued by the Central Government. The maximum distance prescribed by section 2(14)( iii)(b) of the Act which may be incorporated in the notification could not be more than 8 kms. From the local limits of municipal committee or cantonment board etc. The notification has to take into account the extent of, and scope for urbanization of that area and other relevant considerations. The reckoning of urbanization as a factor for prescribing the distance is of significant which would yield to the principle of measuring distance in terms of approach road rather than by straight line on horizontal plane. If principle of measurement of distance is considered straight line distance on horizontal plane or as per crow's flight then it would have no relationship with the statutory requirement of keeping in view the extent of urbanization. Such a course would be illusory. It is in pursuance of the aforesaid provision that Notification No. 9447, dated 6-1-1994 has been issued by the Central Government. In respect of the State of 19 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO Punjab, at item No. 18, the Sub-Division, Khanna has been listed at serial No. 19. It has, inter alia, been specified that area up to 2 kms. From the municipal limits in all directions has to be regarded other than agricultural land. Once the statutory guidance of taking into account the extent and scope of urbanization of the area has to be reckoned while issuing any such notification then it would be incongruous to the argument of the Revenue that the distance of land should be measured by the method of straight line on horizontal plane or as per crow's flight because any measurement by crow's flight is bound to ignore the urbanization which has taken place. Moreover, the judgment of the Mumbai Bench appears to have attained finality. Keeping in view the principle of consistency as laid down in Radhasoami Satsang v. CIT [1992] 193 ITR 321 1 (SC) we are of the view that the opinion expressed by the Tribunal does not suffer from any legal infirmity warranting interference of this Court. Accordingly question No. 1 is answered against the Revenue and in favour of the assessee by upholding the order of the Tribunal."
6.9 Further, we refer to the decision of the Hon'ble Bombay High Court in case of Commissioner of Income-tax, Nagpur v. Nitish Rameshchandra Chordia [2015] 57 taxmann.com 394 (Bombay) where the Hon'ble High Court has held as under:
"15. Insofar as relevance of Section 11 of the General Clauses Act is concerned, it needs to be noted that here the relevant amendment prescribing distance to be counted must be aerial has come into force w.e.f. 1st April, 2014. The need of amendment itself shows that, in order to avoid any confusion, the exercise became necessary. The Parliament noticed the Judgments being delivered and therefore, emphatically pointed out aerial distance as the relevant norm. This exercise to clear the confusion, therefore, shows that benefit thereof must be given to the assessee. It is settled law that, in such matters, when there is any doubt or confusion, the view in favour of the assessee needs to be adopted. The Circular No.3/240, dt.24.1.2014 shows vide clause no.4 -amendment in definition of 'Capital Asset' and clause 4.5 dealing with applicability expressly stipulates that it takes effect from 20 ITA No. 372/JP/2015 Dinesh Kumar Jain Vs ITO 1.4.2014 and therefore, prospectively applies in relation to the assessment year 2014-15 and subsequent assessment years. Hence, the question whether prior to the said assessment year 2014-15 the Authorities erred in computing the distance by road does not arise at all. The IT cannot be questioned on that ground. For these reasons, Section 11 of the General Clauses Act also has no application in the present matter where the ITAT was concerned with the assessment year 2009- 10 or prior to the time when amendment took effect."
6.10 In light of above discussions, we find that the matter require fresh examination taking into consideration the above legal proposition. We accordingly, set-aside the matter to the file of AO to examine the matter a fresh after giving reasonable opportunity to the assessee.
7. In the result, the assessee's appeal is allowed for statistical purposes only.
Order pronounced in the open court on 01/12/2016.
Sd/- Sd/- (KUL BHARAT) (VIKRAM SINGH YADAV) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 01.12.2016 Pillai
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Dinesh Kumar Jain, Jaipur.
2. izR;FkhZ@ The Respondent- The ITO, Ward 6(1), Jaipur.21 ITA No. 372/JP/2015
Dinesh Kumar Jain Vs ITO
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 372/JP/2015) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar