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TMI Blog2013 (4) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... iness income, has become now meaningless. - ITA No. 164/Nag/ 2012, ITA No.165/Nag/2012 - - - Dated:- 10-4-2013 - Shri R. K. Gupta, JM And Shri D. Karunakara Rao, AM,JJ. Mr. Bhupendra Shah Dr. Millind Bhusari ORDER Per Bench :- These two appeals have been preferred by two different assessees before the ITAT Nagpur Bench, Nagpur, against the order of leaned CIT(A)-II, Nagpur (Maharashtra) relating to assessment year 2008-09, which has been heard through E-Court, Mumbai. 2. Since common issues are involved in both the cases, therefore, for the sake of convenience, both these cases have been heard and disposed of by this consolidated order. 3. In both the appeals, the aforesaid assessees have raised the ground against the action of the learned CIT(A) in regard to confirming the action of the AO in holding and maintaining that the agricultural land held by these two assessees are capital asset within the meaning of Section2(14)(ii)(b) by adopting the ariel distance by straight line method instead of road distance. 4. Brief facts giving rising to both these appeals are that during the course of assessment proceeding, the AO noted that these two assessees have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Punjab and Haryana High Court has been consistently followed by various benches of the Tribunal in various parts of the country. One of us has also taken into considering this issue while sitting in Jaipur Benches of the Tribunal and found that the decision of the Hon'ble Punjab and Haryana High Court has to be followed and the distance has to measured through approach road and not through the crows flight distance. The Hon'ble Punjab and Haryana High Court in the case of Satinder Pal Singh (supra) has held that the distance of agricultural land belonging to the assessee within the meaning of Section2(14)(iii)(b) has to be measured in terms of approach road and not by a straight line distance on horizontal plane or as per crows flight. Copy of the order is also placed in the compilation at pages 1 2. 10. The contention raised by learned CIT(A) that the reckoning of urbanization as a factor for prescribing the distance is of significance which would yield to the principle of measuring distance in terms of approach road rather than by straight line on horizontal plane, this contention of learned CIT(A) has also been considered by the Hon'ble Punjab and Haryana High Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), wherein it was held that the distance between the municipal limits and assessee's industrial undertaking has to be measured having regard to the road distance and not as per the crow's flight i.e., a straight-line distance as canvassed by the Revenue. 12. In case of ITO Vs. Ashok Shukla, decided in ITA No.207/Indore/2012, for assessment year 2008-09, vide order dated 31-8-2012, the issue was in respect to whether the assessee was entitled to exemption from capital gain on sale of agricultural land. This issue was examined in detail and it was found that the Tehsildar and Patwari have given a report that the land in question was agricultural land and the distance is 9.7 kms from the municipal limit. This distance was through the approach road and not by straight line distance method. Thereafter discussing the issue on merit and having taking into consideration the decision of the Tribunal in the case of Laukik Developers (supra) and considering the decision of the Hon'ble Gujarat High Court in the case of Balkrishna Hariballabhadas Vs. CIT, reported in 138 ITR 245, which was relied upon by the learned DR and found that the measurement has to be adopted by the approach road an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by holding that the distance of 8km has to be measured through approach road and not by straight line method on horizontal plane. 15. We have also taken into consideration various arguments of learned CIT DR and found that since the issue is covered by the decision of the various Benches of the Tribunal as well by Hon'ble Punjab and Haryana High Court, therefore, in view of the consistency the view taken by various benches has to be followed. There is no contrary decision is available on the same facts and, therefore, it cannot be said that the decision of the Hon'ble Punjab and Haryana High Court has only persuasive value. If there is any contrary decision is available either by the Hon'ble High Court or by any other benches of the Tribunal, then of course it can be said that the decision of other benches have persuasive value. In view of the aforesaid facts and circumstances of the case, we held that distance of 8 kms. has to be measured through approach road and not by straight line distance on horizontal plane or crow's flight. Hence, this issue is decided in favour of the assessees. 16. Regarding the issue in regard to whether the sale consideration out of agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Delhi High Court has been confirmed by the Hon'ble Apex Court, whereby it has been held that even and otherwise we see no merit in the Special Leave Petition and the same are accordingly dismissed on the ground of delay as well as on merits. Copies of these orders are placed in the compilation. 19. This issue has also been considered in various other decision i.e. in case of Hindustan Industrial Resources Limited Vs. ACIT, reported in 335 ITR 77, wherein it was held that in view of the finding of the Tribunal that the land in question was agricultural land at the time of purchase by the assessee as also at the time of acquisition, the land was clearly agricultural land irrespective of the fact that the assessee intended to use the land for industrial purposes and did not carry out any agricultural operations and, therefore, no capital gains could be charged on acquisition thereof under the Land Acquisition Act, 1894. While holding so, the decision in the case of DLF United Limited (supra), was taken into consideration by the Hon'ble Delhi High Court. 20. In case of Shri Satyanarayan O. Agrawal Vs. ADCIT, 7. decided in ITA No.169/Nag/2012 for assessment year 2007-08, si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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