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TMI Blog2017 (4) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of Income-tax Rules, 1962 as no remand report was called by learned CIT(A) from AO and principles of natural justice is also breached as the Revenue has not be granted opportunity of being heard. Considering the factual matrix of the case, we are inclined to set aside this matter back to the file of the A.O. for de-novo determination of the issue on merits. - I. T. A. No. 4270 / Mum/ 2015 - - - Dated:- 3-4-2017 - SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER Revenue by : Shri Rajesh Kumar Yadev (D.R.) Assessee by : Shri Manish J. Sheth ORDER Per Ramit Kochar, Accountant Member This appeal, filed by the Revenue, being ITA No. 4270/Mum/2015 is directed against the appellate order dated 17th April, 2015 passed by learned Commissioner of Income Tax (Appeals)- 45, Mumbai (hereinafter called the CIT(A) ), for the assessment years 2011-12, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 28th March, 2014 passed by the learned Assessing Officer (hereinafter called the AO ) u/s 143(3) of the Income-tax Act,1961 (Hereinafter called the Act ). 2. The grounds of appeal raised by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had been situated 8 km away from the Ahmedabad Municipal Corporation Limit and the population of the village is less than 10,000. The assessee also submitted Google map showing distance of Sanathal Village from Ahmadabad, considering Ahmadabad Municipal Corporation being the main Municipal Corporation. The AO asked assessee to furnish distance of Sanathal Village from Sarkhej village considering that Municipal Ward is located at Sarkehj Village. The assessee submitted that Sarkhej Village was not being considered as municipal ward at the time when the agricultural land was sold by the assessee. It was also submitted that actual distance between Sarkhej Vilalge and agricultural land of the assessee in Santhal Village is more than 8 km. it was also submitted that agricultural land sold was situated near the boundary of Kolat Village and Santhal Village, and the same being very far from the starting point from Sanathal Village and Sakhrej Village. The satellite maps showing the exact location of the agricultural land and its distance from Sarkhej Village was submitted. It was also submitted by assessee that the agricultural land is adjacent to Gulmohar Greens and Golf Count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall qualify as agricultural land as per provisions of Section 2(14)(iii)(b) of 1961 Act. The assessee submitted that A.O. relied on the distance from Sanand Municipality to Gulmohor Golf Country Club as per the Google map. The assessee contended that the A.O. should have taken the distance upto assessee's agricultural land and not up to the Gulmohor Golf Country Club. The assesse also submitted a certificate from the Executive Engineer, Ahmedabad specifying that the assessee's land is situated at distance of more than 8 kms. from Sanand Municipal Corporation. The assessee relied upon decision of Ahmedabad-tribunal vide orders dated 24.01.2013 in ITO v. Ashaben Lallubhai Desai in ITA No. 2122/Ahd/2012 wherein in the identical case , the land situated at 3.3 lm away from Sanand Municipal Corporation was held to be agricultural land as per Section 2(14)(iii)(b) of 1961 Act. 6. The ld. CIT(A) accepted the contention of the assessee that the Gram Panchayat has given the relevant certificate regarding distance of the agricultural land of the assessee from Sanand Municipal Corporation and the notification of the Government of India exists classifying the land beyond 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty etc. as stipulated u/s 2(14) of 1961 Act. 9. The ld. Counsel for the assessee submitted that if the certificate is required from the competent authority as required under law, an opportunity may be granted and the matter may be remanded to the A.O. whereby the assessee can produce the relevant certificates before the AO , which can be verified by the AO.It is also submitted that distance be computed in a manner as laid down in pre-amended Section 2(14) of 1961 as the impugned assessment year under appeal is 2011-12, while the amendments to measure distance between the municipality and the land to be measured aerially was brought by Finance Act, 2013 w.e.f. 01-04-2014. The learned counsel relied upon circular no. 17/2015 dated 06-10-2015 issued by CBDT to that effect. 10. We have considered rival contentions and also perused the material available on record. We have observed that the assessee has claimed to have sold an agricultural land during the previous year relevant to impugned assessment year , which is stated to be situated near the boundary of Kolat Village and Sanathal Village. The assessee had contended that the assessee had sold agricultural land which is more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year under appeal is assessment year 2011-12 while the amendment to section 2(14) of 1961 Act was brought in by Finance Act, 2013 w.e.f. 01-04-2014 wherein the said distance is to be measured aerially , and the said amendment is held to be prospective by Nagpur Bench of Hon ble Bombay High Court vide orders dated 30-03-2015 in the case of Smt Maltibhai R Kadu in ITA no. 151 of 2013. . This position is accepted by CBDT vide circular no. 17/2015 dated 06-10-2015 . The said circular is reproduced hereunder : CIRCULAR NO.17/2015 [F.NO.279/MISC./140/2015-ITJ] SECTION 2(1A), READ WITH SECTION 2(14)(iii), OF THE INCOME-TAX ACT, 1961 - AGRICULTURAL LAND - MEASUREMENT OF DISTANCE FOR PURPOSE OF SECTION 2(14)(iii)(b) FOR PERIOD PRIOR TO ASSESSMENT YEAR 2014-15 CIRCULAR NO.17/2015 [F.NO.279/MISC./140/2015-ITJ], DATED 6-10-2015 Agricultural Land is excluded from the definition of capital asset as per section 2(14)(iii) of the Income-tax Act based, inter alia on its proximity to a municipality or cantonment board. The method of measuring the distance of the said land from the municipality, has given rise to considerable litigation. Although, the amendment by the Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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