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TMI Blog2013 (5) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Appellate Tribunal, New Delhi, on 31.01.2012 in ITA Nos. 5304-5307/Del/2011 pertaining to the assessment years 2008-09 and 2009-10. Two appeals are in respect of the assessee Smt. Manju Bansal and the other two are in respect of the assessee Smt. Nirmal Bansal. 2. Mr Sabharwal, the learned counsel appearing on behalf of the appellant / revenue submitted that the Tribunal had misdirected itself in law in not considering the question as to whether the land was agricultural in nature or not. He submitted that the issue before the Tribunal was with regard to the addition of Rs. 2,34,70,697/- which had been made by the assessing officer on account of short term capital gain in respect of sale of different plots of land at village Hayatpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Committee. The District Town Planner, Gurgaon vide letter memo no.70954 dated 21-12-2010 has intimated this office that the distance of the land from the outer limits of the Municipal Committee of Gurgaon was 8.5 kms on the date of sale. The distance given by District Town Planner, Gurgaon is very narrow as compared to the distance mentioned in the Act. In these circumstances the possibility of any other shortest distance cannot be ruled out and the land sold by the assessee during the year is taken as "Capital Asset" within the meaning of 2(14) of Income Tax Act, 1961 and the profit thereof is treated as short term capital gain. Addition of Rs.2,97,94,502/- is hereby made as short term capital gain." 3. The Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) that the lands in question were situated beyond 8 kms from the outer limits of the municipal corporation of Gurgaon, could not be faulted. 5. The learned counsel for the revenue contended before us that the departmental representative had also raised the issue that the lands in question were not agricultural lands at all and that aspect of the matter had not been gone into by the Tribunal. He submitted that in order that the profits from sale of land are not subjected to capital gains tax, it has to be established that the lands in question were agricultural lands and that such lands were not situated within 8 kms of the municipal limits. He submitted that question of ascertaining whether the land was situated within 8 kms or beyond 8 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal could very well have examined the question of nature of the lands even though it had not been in issue before the lower authority. However, we find that the decision in NTPC Ltd. (supra) would be of no assistance to the revenue. In the said decision it has been clearly noted that the Tribunal had jurisdiction to examine a question of law which "arose from the facts as found by the Income Tax Authorities" and which had a bearing on the tax liability of the assessee. The point to be noted is that the question of law which could be raised before the Tribunal would have to arise from the facts as found by the income-tax authorities. In other words, there must be some factual basis on which the question of law is raised before the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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