9911796707
TMI Blog2014 (3) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter, the land shall be treated as an agricultural land exempt from capital gain tax – Decided in favour of Revenue. - I.T.A. No.6562/Mum/2011, I.T.A. No.6564/Mum/2011 - - - Dated:- 7-3-2014 - Shri D. Manmohan, VP And Shri N. K. Billaiya, AM,JJ. For the Appellant : Shri Ravi Prakash, Shri R.K. Sahu For the Respondent : Shri N. R. Agrawal ORDER Per N. K. Billaiya, AM: These two appeals by the Revenue are against two separate orders of the Ld. CIT(A)-32, Mumbai dt.12.07.2011 pertaining to two separate assessees for A.Y. 2008-09. As common issues are involved in both these appeals, though quantum may differ, they were heard together and disposed of by this common order for the sake of convenience and brevity. ITA No. 6562/M/2011- Shri Sunil G Mathreja 2. The grievance of the Revenue reads as under : 1. On the facts in the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the addition amounting to Rs.1,80,43,6951- made by the AC by assessing the Long Term Capital gain in the hands of the assessee. 2. The CIT(A) has failed to appreciate that the Dy. Superintendent of land records has issued a certificate dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied 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 specify in this behalf by notification in the official gazette. To support his contention that the land is beyond 8 kilometers of Bhiwandi Nizampur Municipal Corporation (BNMC)., the assessee filed a certificate dt. 3.9.2007 from Shri Anant Bhiva Madhvi, Sarpanch of Sonale Gram Panchayat who certified that the said land of the assessee is 12 Kms from BNMC, 16 Kms from Thane Municipal Corpn. 27 Kms from Brihanmumbai Municipal Corpn. The AO was of the firm belief that the land of the assessee is situated within 8 Kms from the Municipal limits of BNMC. Further no agricultural activity was carried out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s more than 8 Kms. In support of his contention, the assessee filed a certificate from M/s. Aryas Surveyers and Constructions Pvt. Ltd alongwith site plan giving point wise distance. The assessee also filed a map taken from Google maps. 4.3. In so far as the measurement of distance is concerned, the assessee strongly submitted that the distance is always measured having regard to the road distance and not as per crow s flight , straight line method. The assessee further stated that the certificate issued by the Dy. Supdt. of Land Records stating that the distance could be 1600 to 1700 mtrs is based on the scale of map i.e. crow s flight method therefore cannot be admitted as an evidence. The assessee also relied upon certain judicial decisions. The entire submissions/contentions of the assessee did not find any favour from the AO. According to the AO, the Surveyors certificate has clearly ignored a motorable road in between the two toll nakas marked by him. In the opinion of the AO, there is a motorable road starting from Pise Dam cutting the Thane Bhiwandi Bypass and reaching the BNMC jurisdiction which joins at Brahman Pada Village, Pogaon which is the last village withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of usage of the said stretch road leading to the Pise Dam. In response to this, the assessee furnished a certificate dt. 21.6.2011 from the Dy. Hydraulic Engineer (Operations), Municipal Corporation of Greater Mumbai stating that the road between Thane-Bhiwandi bye-pass to Yewai chowky is under ownership of MCGM and this road is maintained by MCGM. Plying of public vehicle is not permitted on this road. This road is MCGM s approach road for MCGM s chlorination plant . Considering the certificate, the Ld. CIT(A) was convinced that the said 3.5 kms. stretch of road from Bhiwandi Bye-pass leading to Pise Dam is not open for public plying of vehicles as a thorough fare and the said road is meant to be used for a limited purpose by MCGM officials. The Ld. CIT(A) finally concluded that the distance of the assessee s agricultural land is beyond 8 kms. from the outer limit of BNMC measured through the shortest road which is open for public use and hence the same would fall outside the definition of capital asset u/s. 2(14)(iii)(b) and therefore the sale proceeds of said land is not chargeable to capital gains. 6. Aggrieved by this, the Revenue is before us. The Ld. Departmental Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
