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TMI Blog2016 (9) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.9.2009 declaring total income at Rs. 1,10,350/-. The case of the assessee was selected for scrutiny assessment, and notice under section 143(2) dated 23.8.2010 was issued and served upon the assessee. On scrutiny of the accounts, it revealed to the AO that the assessee had earned a profit of Rs. 3,99,63,932/- on sale of land. The ld.AO has noticed the details in tabular form exhibiting name of village where the land was situated and survey no, date of purchase, purchase amount, date of sale, sale consideration and the gain. Such details are produced at page no.3 of the assessment order, which read as under: *transaction at Sr.No. 2 is Offered to tax as Long term capital gains i.e Rs. 79,26,870/- (after indexation) From the above lucid chart it is seen that the assessee has made a total profit of Rs. 3,99,65,826/- from sale of the lands situated at Kaneti and Telav villages of Sanand Taluka of Ahmedabad District during the year. From these sale transactions the assessee has offered to tax only the gains resulting from transaction no.2 as Long term capital gains since the land in question has been considered as Non-agricultural. The balance i.e Rs. 3,99,65,826 - Rs. 81,21,060 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in Kaneti Village, assessing officer did not object that the same was situated beyond 8 km road distance from Ahmedabad municipal limit. As regards the issue of air distance or road distance from municipal limits, assessing officer could not counter the judicial decisions relied upon by the appellant except mentioning that these decisions were not accepted by the Department. Considering the entire submissions and reports referred earlier, this issue can be divided in two parts-(l) while computing distance from municipal limit, which distance- air distance or road distance to be considered. (2) Which municipal limit should be considered for computing distance from agriculture land- municipal limit on the date of sale or municipal limit on the date of issue of the notification by the government or municipal limit as on date. As regards the first part of the issue, appellant submitted decision of honourable Punjab and Haryana High Court in which it is clearly held that it is the road distance from municipal limit and not air distance to be considered. Several tribunal decisions have also upheld' this view. There is no judicial decision contrary to this view. Even if Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, 196I (43 of 1961J, in the Gazette of India, Extraordinary, Part II, section 3, subsection (ii], dated February 13, 1991, under the notification of the Government of India in the Ministry of Finance (Department of Revenue] No. S.O. 91 (E], dated February 8, 1991, for specifying certain areas for the purposes of the said clauses and objections and suggestions were invited from the public within a period of 45 days from the date the copies of the Gazette of India containing such notification became available to the public; And whereas copies of the said Gazette were made available to the public on February 13, 1991; And whereas the objections and suggestions received from the public on the said draft notification have been considered by the Central Government; Now, therefore, in exercise of the powers conferred by item (B) of clause (ii] of the proviso to sub-clause (c) of clause (JA] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f issue of this notification i.e. 6-1-1994. Assessing officer is therefore directed to compute the road distance of the agricultural lands from the municipal limits of AMC as on 6-1 -1994. If the distance is within 8 km, appellant is liable for capital gains and if the distance is beyond 8 km, the agricultural lands sold will be outside the purview of capital asset and hence no capital gains can be charged on the same. This ground is accordingly disposed off." 6. Before us, limited dispute is whether the distance for identifying the geographical location of the agriculture land is to be taken by road or by aerial. Second fold of dispute is whether the municipal limit enhanced by the State Government is to be considered as starting point or it is to be taken from notification issued by the Central Government dated 6.1.1994. The ld.CIT(A) has held that notification issued on 6.1.1994 by the Central Government is to be considered. 7. Ld.DR relied upon the order of the AO. On the other hand, the ld.counsel for the assessee contended that Hon'ble Punjab & Haryana High Court in the decision referred by the ld.CIT(A) in the case of CIT Vs. Satinder Pal Singh, 229 CTR 82 has held that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the municipality, has given rise to considerable litigation. Although, the amendment by the Finance Act, 2013 w.e.f. 1.04.2014 prescribes the measurement of the distance to be taken aerially, ambiguity persists in respect of earlier periods. 2. The matter has been examined in light of judicial decisions on the subject. The Nagpur Bench of the Hon. Bombay High Court Vide order dated 30.03.2015 in ITA 151 of 2013 in the case of Smt. Maltibai R Kadu has held that the amendment prescribing distance to be measured aerially, applies prospectively i.e. in relation to assessment year 2014-15 and subsequent assessment year. For the period prior to assessment year 2014-15, the High Court held that the distance between the municipal limit and the agricultural land is to be measured having regard to the shortest road distance. The said decision of the High Court has been accepted and the aforesaid disputed issue has not been further contested. 3. Being a settled issue, no appeals may henceforth be filed on this ground by the officers of the Department and appeals already filed, if any, on this issue before various Courts/Tribunals may be withdrawn/ not pressed upon. This may be br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to make the appeal time barred, and to our mind, the assessee will not gain anything by adopting any dilatory strategy. The delay of nine days on account of human negligence could have happened. Therefore, we condone the delay and proceed to decide the appeal on merit. 13. Solitary grievance of the assessee in its appeal is that the ld.CIT(A) has erred in confirming the disallowance of loss claimed by the assessee at Rs. 77,64,387/-. 14. Brief facts of the case are that the assessee has claimed loss of Rs. 77,64,387/-. It was contended by the assessee that it has carried out Future & Option (F&O) trading of derivatives. In order to explain its transaction, the assessee has filed complete bill-wise details of F&O transactions. The assessee has alleged to have carried out these transactions through a broker viz. Goldstar Finvest P.Ltd. The assessee has shown total purchase of Rs. 9,65,06,902/- and it had shown sales of Rs. 8,87,42,515/-. The difference i.e. Rs. 77,64,387/- has been claimed as loss from F&O trading. The ld.AO has observed that in order to verify the authenticity of claim under F&O, information was called from National Stock Exchange by quoting PAN of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, there remains no doubt about the nature of loss claimed by the appellant. When the person issuing contract notes is not even registered member of exchange, there is no question of any transaction done by it on behalf of the appellant. Contract notes issued by the said party are fictitious on the basis of which no loss can be allowed. Appellant's submission in this regard cannot counter the facts emerged from the communication from NSE Ltd. Considering these facts, assessing officer is justified in treating the loss claimed on F & O transactions fictitious. The disallowance of such fictitious loss is accordingly confirmed." 16. With the assistance of the ld.representatives, we have gone through the record carefully. A perusal of the impugned order would suggest that for rejecting the claim of the assessee, both the Revenue authorities have primarily relied upon the alleged information collected from the National Stock Exchange. The ld.CIT(A) has made reference to the letter of Additional CIT, Range-I, Ahmedabad dated 27.7.2012. According to the ld.CIT(A), in this letter the Addl.CIT has brought to his notice that Goldstar Finvest P.Ltd. was not registered as member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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