9911796707
TMI Blog2016 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Land Records Maintenance, Coimbatore. As rightly contended by the respondent, revenue department and survey authorities are competent to measure the land and issue appropriate certificates, and the same cannot be ignored by the assessing officer, by relying on the report of the investigation wing. In such matters, it would be appropriate, to take the assistance of the survey authorities, to arrive at the conclusion. On the facts and circumstances of this case, we also wish to state that in the matter giving weightage to the evidence adduced in this regard, report of the departmental inspector vis-a-vis certificates of the revenue authorities, produced before the assessing officer, the latter should be given weightage and accepted, unless the contrary is proved. - Decided in favour of assessee - T.C.A.No.1189 of 2015 - - - Dated:- 17-8-2016 - MR. S.MANIKUMAR AND MR. D.KRISHNA KUMAR, JJ. For The Petitioner : Mr.T.R.Senthil Kumar for Ms.R.Hemalatha For The Respondent : Mr.K.R.M.Prabhakaran party-in-person JUDGMENT (Judgment of the Court was made by S.MANIKUMAR, J ) Challenge in this Tax Case Appeal, is to an order made by the Income Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the Commissioner of Income Tax (A), decided the matter in favour of the assessee. The Assistant Commissioner of Income Tax, Circle II, Coimbatore, filed appeal in ITA No.1779/Mds/2011, before the Income Tax Appellate Tribunal. 5. Before the Income Tax Tribunal, the learned D.R appeared on behalf of the revenue, submitted that the investigation wing of the revenue had forwarded a report, wherein, it is clearly stated that the land is located within 8 Kms from City Bakery, which is not more than 100 meters from the Corporation limits of Coimbatore. He submitted that the finding of the Revenue, will supersede the certificates given by the State government departments and that therefore, the issue has to be decided on that basis. 6. The Tribunal, while dismissing the appeal filed by the revenue, held that the Survey Department of the State government and the Tahsildar of the relevant zone, have consistently certified that the land is situated beyond 8 Kms from the Corporation limits of Coimbatore. The Tribunal further held that the land sold by the assessee is an agricultural land and situated beyond 8 Kms from the Corporation municipal limit, therefore, the capital gain aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Land Records Maintenance, Coimbatore North 9.13 Kms Sub-Inspector of Surveys, Coimbatore Corporation-North Zone, Coimbatore 9.10 Kms. Tahsildar (North Coimbatore) 8.40 Kms 9. According to the learned Standing Counsel, being a fact, there can be only one fixed distance, between the Corporation limits and the assessee's property. The point of reckoning for the above authorities was the limits on the Coimbatore-Sathy road, and the route taken was, via Saravanampatty. 10. By way of written submissions, Mr.K.R.M.Prabhakaran, party-inperson, submitted that he has submitted all the valid proof issued by the government authorities, who are competent to measure and certify the distance and maintain relevant land records of Tamil Nadu, to the Income Tax Department. They have certified that the agricultural land is situated, at a distance of above 8 Kms from the corporation limit. The Income Tax Inspector is not technically qualified or an authorised person to measure distance. The Income Tax Inspector has stated that the distance, as 7.9 Kms (only 100 metres less of 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified 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; or (b) in any area within the distance, measured aerially.- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh. 15. Section 11 of the General Clause Act, 1897, deals with measurement of distance and the same is extracted hereunder: In the measurement of any distance, for the purpose of any Central Act or Regulation, made after the commencement of this Act, that distance shall, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.19. It has inter-alia been specified that area upto 2 kms., from the municipal limits in all directions has to be regarded other than agricultural land. Once the statutory guidance of taking into account the extent and scope of urbanization of the area has to be reckoned while issuing any such notification then it would be incongruous to the argument of the Revenue that the distance of land should be measured by the method of straight line on horizontal plane or as per crow s flight because any measurement by crow s flight is bound to ignore the urbanization which has taken place. Moreover, the judgement of the Mumbai Bench appears to have attained finality. Keeping in view the principle of consistency as laid down in Radha Soawami Satsang v. CIT, (1992)193 ITR 321, we are of the view that the opinion expressed by the Tribunal does not suffer from any legal infirmity warranting interference of this Court. 18. In Commissioner of Income Tax v. Shabbir Hussain Pithawala reported in 2014 (226) Taxman 174 , the Madhya Pradesh High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 579/1 1.57.0 Hectare 582/1 0.51.0 Hectare Total 4.02.0 Hectare Signed TEHSILDAR Dt. 30.4.08 Coimbatore (North) Round Seal of Tehsildar/ Taluk Judge. Coimbatore Recipient Mr. K. Prabakaran, 291, Avaram Palayam Road, Sidha pudur, Post, Coimbatore 641 044. [TRANSLATED FROM TAMIL TO ENGLISH] INSPECTOR OF SURVEY AND LAND RECORDS MAINTANCE, Coimbatore (North) Collectorate Compound, Coimbatore 641 018. Dated : 20.12.2010. C/ office ref: L. Dis.1189/10. CERTIFICATE This is to certified that the agricultural land in Keeranathan panchayat, Coimbatore district bearing survey numbers 574/2,575/ 2,576/2, 577, 578/1, 579/1 and 582/1 at Keeranam puduppalayam village is situated at a distance of 9.15 kms measured as shortest distance from the near by Coimbatore corporation limit ends on sathy road (land mark when visited: near Gowtham complex, Aishwarya bakery, and Jayam medicals) taken by the approachable shortest road route from boundary of Coimbatore corporation limits at Sathy road via Sivananda pura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Coimbatore corporation limit (2007-2008). For this purpose, I have measured the distance from the Coimbatore corporation limit at Sathy road, Coimbatore, being the exact starting point (land mark: beyond Ramakrishna Mills at LGB Nagar Pirivu- Gowtham tower, Aiswarya bakery and Jayam medical) to measure the distance as required to the said land as per the Coimbatore Corporation Limit plan as was in the year 2007-2008. From that point as mentioned above by the shortest road route to the said agricultural land the distance measures at 9.13 km. Inspector of Survey and Land Records. (Maintenance) Coimbatore. To Assistant Commissioner of Income Tax, Circle II, Coimbatore. 23. Though the assessee has submitted that the abovesaid documents to prove that the distance between agricultural land and municipal limit was more than 8 Kms, the assessing officer has only relied on the report of the Inspector of Income-Tax. Though the assessing officer has sought for clarifications from the Inspector of Survey and Land Records Maintenance, Coimbatore, regarding the place, where the Corporation limits ends, as to whether, Gopalkrishna Mills/city bakery or beyond Ramakr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rishna Mills/City Bakery. Hence, we require the exact place from which the distance to be measured. The Inspector of Survey and land records in his certificate mentioned that, for measuring the distance from corporation limit, to the agricultural lands with Survey Nos.574/2, 575/2, 577, 578/1, 579/1 578/1 located at Keeranam Pudupalayam village, Coimbatore district, the exact place of starting point will be only at (Land mark: beyond Ramakrishna Mills at LGB Nagar Pirivu- Gowtham tower, Aiswarya bakery and Jayam medical) and not from Gopalkrishna Mills/city bakery nor any other place as per Coimbatore Corporation Plan, as was in the year 2007-08. Meanwhile, the investigation wing forwarded a report with respect to Mr.K.R.N.Prabakaran case in which it was mentioned that the said land is located within the 8 kilometers from city bakery which according to them is not more than 100mts from the corporation limit of Coimbatore. 24. On the appeal preferred by the assessee, considering the grounds of challenge, submissions and evidence, the Commissioner of Income Tax (Appeals), at Paragraphs 9 to 16, held as follows: 9. I have gone through the grounds of appeal and also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2, 575/2, 576/2, 577, 578/1, 579/1 and 582/1 at Keeranam Puduppalayam Village is situated at a distance of 9.15 KMs measured as shortest distance from the nearby Coimbatore Corporation limit which ends on Sathy Road (landmark when visited : Near Gowtham Complex, Aishwarya Bakery, and Jayam Medicals). Taken by the approachable shortest road route from boundary of Coimbatore Corporation limits at Sa thy Road via Sivanandapuram, Saravanampatty, Keeranatham Village to Keeranatham Puduppalayam Village where the land is situated at 16 KM from Coimbatore Railway Station as per Coimbatore Corporation limit plan. The appellant also filed a certificate from the Tahsildar [North Coimbatore] dated 30.04.2008 which states that the said land bearing Survey Nos. 574/2, 575/2, 576/2, 577, 578/1, 579/1 and 582/1 is situated at 8.4 KMsfrom the Coimbatore Corporation Limits. The learned Authorized Representative submitted that this certificate was obtained before the appellant filed the return of income in order to be clear whether the income on the sale of agricultural land was taxable or not. 11. The appellant also filed a certificate dated 31.08.2012 issued by the Sub Inspector of Surveys, Coi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituated) and Rabindranath Tagore Road. The letter also states that the Rabindranath Tagore Road is the Corporation Limit during the period in which Shri Prabhakaran had disposed off his HUF property. Therefore, City Bakery was taken as the starting point for measuring the distance of Shri Prabhakaran's HUF property from the Coimbatore Corporation Limit. The ITa (Inv.) also stated that the distance of Shri Prabhakaran's HUF property was 7.5 KMs from the Coimbatore Corporation limit. One side of Rabindranath Tagore Road is Corporation Limit and the other side is not coming under Corporation Limit earlier. The width of the road is only 10 meter. At present both the sides are within the Corporation Limit. A photocopy of the Municipal Passbook and property tax receipts issued by the Coimbatore Corporation for the period from 2001-02 to 2011-12 to a property belonging to Shri P.G. Mahalingam and Shri P. Mani which is situated on Rabindranath Tagore Road, adjacently opposite to the City Bakery is enclosed as proof/evidence of Corporation Limit. The distance between these City Bakery and the property of Shri P.G. Mahalingam and Shri P. Mani is less than 100 Meters. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity Bakery. In reply to the letter of the Assessing Officer, the Inspector of Survey and Land Records (Maintenance), Coimbatore (North), clarified that the exact point will be only at (landmark) beyond Ramakrishna Mills, at LGB Nagar Pirivu - Gowtham Towers, Aishwarya Bakery and Jayam Medicals) and not from Gopalakrishna Mills / City Bakery or any other place as per the Coimbatore Corporation Limit plan as was in the year 2007-2008. 15. As seen from the assessment order, the Assessing Officer has considered the report of the Investigation Wing as also the report of the Inspector of Survey and Land Records (Maintenance), Coimbatore (North) and also the certificate issued by the Tahsildar, Coimbatore (North) and has taken a decision to bring to tax the consideration received on sale of agricultural land based on the Departmental report. The Assessing Officer in the order stated that so the decision was taken in favour of revenue based on the Departmental Report and the consideration received on sale of agricultural land by the assessee attracts capital gains and the assessment is completed accordingly . As seen from the ITO (Inv.) report and the Inspector's report, the outer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, the income on sale of the agricultural land is exempt from taxation. The Assessing Officer is directed to delete the addition. The grounds of appeal are ALLOWED. 25. When the matter was taken on appeal by the revenue, before the Income-Tax Appellate Tribunal, after considering the submission of the departmental representative that the investigation wing of the revenue has forwarded a report, in which, they have clearly stated that the said land is located within 8 Kilometers from city bakery, which is not more than 100 Mts., from the corporation limits of Coimbatore and the further contention that the finding of the Revenue would supersede the certificates given by the state government departments, the Tribunal, vide order in I.T.A.No.2716/Mds/2014, dated 22.06.2015, dismissed the same, as follows: 6. From the above it is crystal clear that the Survey department of the state Government and the Thasildar of the relevant Zone have consistently certified that the land is situated beyond 8 Kms from the Corporation limit of Coimbatore. The genuineness of the letters from the State Government authorities is also not in dispute. Moreover, the Ld. CIT (A) in his detailed order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion is based. But it is not possible to turn a mere question of fact into a question of law by asking whether as a matter of law the authority came to the correct conclusion on a matter of fact. 29. In M.Janardhana Rao v. Joint CIT reported in (2005) 273 ITR 50 (SC), the Hon'ble Supreme Court held that in the exercise of the powers under Section 260A, the findings of fact of the Tribunal cannot be disturbed. In the said judgment, the Apex Court further held that the tests for determining whether a substantial questions of law, is involved in an appeal are, (a) whether directly or indirectly it affects substantial rights of the parties, or (b) the question is of general public importance, or (c) whether it is an open question in the sense that the issue is not settled by a pronouncement of the Supreme Court or Privy Council or by the Federal Court, or (d) the issue is not free from difficulty, or (e) it calls for a discussion for alternative view. 30. There are no valid grounds to reverse the abovesaid orders, stated supra. Question of law raised is answered against the revenue and in favour of the assessee. 31. In the result, the Tax Case App ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
