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TMI Blog2015 (9) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... tion itself and not from the village in which the land is situated. ITAT fairly concluded that the land had to be within the distance of 8 Kms. from the outer limit of the Gurgaon municipality and not from the outer limit of ITA 714/2015 Page 5 of 6 the village Ghata in which the land was located. On the strength of the certificate produced by the Assessee from the former Additional Director General, CPWD that the distance of the land from the outer limit of the Gurgaon Municipality was 10.4 Kms, the ITAT held that the land owned by the Assessee did not fall within Clauses (a) or (b) of Section 2 (14) (iii). - Decided against revenue. - ITA 714/2015 - - - Dated:- 14-9-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessee since the scientific mode of determining the distance by a straight line method has not been employed by the said architects. The AO preferred the certificate of the Tehsildar, Sohna District and of the Engineer of the Gurgaon Municipal Corporation which stated that the distance was 6.6 Kms. The AO interpreted the Circular of the CBDT which clarified that for the purpose of Section 2(14)(iii)(b) of the Act, agricultural lands that would be exempt from the definition of 'capital asset' were those that were located in areas upto a distance of 8 Kms from the municipal limits in all directions as under: The language used in the notification of the CBDT which has been referred at Page 6 of this order, is Areas upt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orthern outer limit of Ghata, the Village in which the land is situated is 7.17 Kms. along the road. Consequently, the CIT (A) affirmed the order of the AO that the land sold by the Assessee was a capital asset. 7. Aggrieved by the said order of the CIT(A), the Assessee preferred an appeal before the ITAT. The question that arose for consideration by the ITAT in the Assessee's appeal was: Whether distance up to the land should be considered or up to the village within which such land is situated? The ITAT referred to Section 2(14)(iii)(b) and held: The presumption of the Assessing Officer as well as CIT(A) that the 'area' means the village in which such land is situated is without any basis. In fact, the correct inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset is to be measured having regard to the shortest road distance and not as per the crow flies i.e. straight line distance as canvassed by the Revenue. The Madhya Pradesh High Court in Commissioner of Income Tax v. Shabbir Hussain Pithawala (2014) 226 Taxman 174 decided the question likewise and held that the distance of the agricultural land belonging to the Assessee within the meaning of Section 2(14)(iii)(b) has to be measured in terms of the approach road and not by the straight line distance on horizontal plane or as per crow's flight. 10. The Court is of the view that for the purposes of Section 2 (14) (iii) (b) of the Act, the distance had to be measured from the agricultural land in question to the outer limit of the mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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