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TMI Blog2017 (1) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... per crow’s flight. The Talat hi in the certificate has certified that the distance from municipal limits was about 13 kilometers i.e. beyond eight kilometers. Accordingly, we uphold the order of CIT(A) in holding that the gain arising from sale of agricultural land is not to be taxed in the hands of assessee. Upholding the same, we dismiss both the grounds of appeal raised by the Revenue. - Decided in favour of assessee. - ITA Nos. 108 to 111 /PUN/2013 - - - Dated:- 5-1-2017 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM Appellant by : Shri Hitendra Ninawe Respondent by : None ORDER Per Sushma Chowla, JM This bunch of four appeals filed by Revenue are against respective orders of CIT(A)-V, Pune, all dated 29.10.2012 relating to assessment year 2007-08 against order passed under section 143(3) of the Income Tax Act, 1961 (in short the Act ). 2. The appeals of Revenue were fixed for hearing from date to date, which were adjourned at the request of the assessee. On the appointed date of hearing, none appeared on behalf of the assessee nor any application was moved for adjournment. We proceed to decide the appeals after hearing the learned Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipal Corporation. The Assessing Officer thus, noted that the plot of land in question was situated within eight kilometers from the municipal limits of Pune and as such, was capital asset as defined under section 2(14)(iii)(b) of the Act. Therefore, the gain arising on sale of land was held to be assessable as long term capital gains. The second aspect noted by the Assessing Officer was as to whether the plot of land could be characterized as agricultural land. In support of its claim, the assessee produced copy of 7/12 extract but the same was rejected by the Assessing Officer for the following reasons:- 5.6 The assessee's submission is carefully considered. However, I am not inclined to accept the explanation submitted by the assessee for the following reasons: (1) The Plot of lands sold by the assessee in question situate in a pre-dominant developed area and its physical characteristics, surrounding situation and use of the land in the adjoining area also indicate that the land is not an agricultural land. (2) As per agreement dated 16/03/2007 the plot of land was sold to 11 parties and thus the land was sold for the use of non-agricultural purpose and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of income. 7. The Assessing Officer obtained the Valuer s report from the DVO as on 01.04.1981 and confirmed the income from long term capital gains. 8. Before the CIT(A), the assessee filed detailed submissions as well as additional evidence in respect of certificate from Talat hi regarding the distance of plot in question as well as the valuation of report of Registered Valuer as on 01.04.1981. The plea of the assessee before the CIT(A) was that the said evidence could not be produced before the Assessing Officer who had failed to provide proper opportunity and time. The CIT(A) sought the remand report from the Assessing Officer vis- -vis additional evidence filed under Rule 46A of Income Tax Ru les and as well as on merits of the case. The remand report of the Assessing Officer is reproduced at pages 5 and 6 of the appellate order. The assessee in reply explained the sequence of events which is reproduced under para 7 along with his submissions at pages 8 and 9 of the appellate order. The CIT(A) noted that the assessee was confronted with the Town Planning Report on 10.12.2009 and the assessment was completed on 22.12.2009, therefore, there was justification in the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Haresh G. Milani Vs. JCIT reported in 111 TTJ (Pune) 310 and held that the facts of the case were similar to that of assessee and the entries in 7/12 extract evidencing the cultivation of land remained uncontroverted. Thus, the land was held to be agricultural land. Vis- -vis, the distance issue, the CIT(A) vide para 11 has held as under:- 11. As far as the distance issue is concerned, it is seen that the Assessing Officer has asked the Asstt. Director Town Planning Department to provide aerial distance from the Municipal limits. It is settled law that the distance is to be measured in terms of approach road. In the case of CIT Vs. Satinder Pal Singh, 229 CTR 82, Hon ble Punjab Haryana High Court has held that for measurement of distance for the purpose of deciding the character of land, whether agricultural or not is to be done in terms of the approach road and not by a straight line distance or horizontal plain or as per crow s flight. In this case, the appellant has submitted the certificate from Talathi, stating that the distance from Municipal limits is about 13 Kms. Therefore, on this count too, the land has to be treated as agricultural. Accordingly, in view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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