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TMI Blog2018 (7) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ale deed has not been produced - Held that:- Commissioner of Income Tax (Appeals) has given a finding that there is a proper agreement and the consideration has duly been made. This is not been disputed by the Revenue and, accordingly, we uphold the order of the ld. Commissioner of Income Tax (Appeals) on this issue also - Decided in favour of assessee. - ITA No. 85/Nag./2015 - - - Dated:- 2-7-2018 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER For The Assessee : Shri R. K. Baral For The Revenue : Shri Himesh Demble ORDER PER SHAMIM YAHYA, A.M. This appeal by the Revenue is directed against the order of the ld. Commissioner of Income Tax (Appeals)-I, Nagpur dated 31.12.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the facts and in the circumstances of the case, the Ld. CIT(Appeals) erred in his observation that possession of the property held to be eligible for deduction u/s. 54B vested with the assessee. Apropos ground no. 1 treatment of land as capital asset. 3. Brief facts of the case are as under: The assessee has sold an immovable property being agricultural land for ₹ 1,27,92,230/- on 26.10.2010. The assessee computed the capital gains as under: Capital Gain on sale of Agricultural Land Sl. No. Particulars Amount in Rs . 1. Sale Price as on 26.10.2010 1,27,92, 230/- 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer, therefore, treated the land in question as capital asset in view of the definition provided u/s 2(14) of the Act and charged the same to Capital Gains. 5. Upon the assessee s appeal, the ld. Commissioner of Income Tax (Appeals) noted that the assessee s counsel has raised an objection to adopt the aerial distance as against the distance to be measured by closest approachable road distance basis. The ld. Commissioner of Income Tax (Appeals) observed that the Assessing Officer has not addressed this issue. The ld. Commissioner of Income Tax (Appeals) observed that the letter issued by the Asst. Director, Town Planning, Nagpur in other similar type of cases, the aerial distance has been considered. He noted that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... method. The ld. Commissioner of Income Tax (Appeals) has concluded as under: 6.8 Thus, after having analysed the decision of various Tribunals and High Court the Hon'ble ITAT Nagpur Bench has held as under: We have also taken into consideration various arguments of learned CIT DR and found that since the issue is covered by the decision of the various Benches of the Tribunal as well by Hon fble Punjab and Haryana High Court, therefore, in view of the consistency the view taken by various benches has to be followed. There is no contrary decision is available on the same facts and, therefore it cannot be said that the decision of the Hon'ble Punjab Haryana High Court has only persuasive value. If there is any contrary decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be regarded as capital asset within the meaning of sec. 2(14) of the Act. Accordingly, keeping in view of the decision of the jurisdictional Tribunal, the transaction of sale of land in question is held to be not liable for charging of capital gains. This ground therefore, is allowed and the addition made by the AO is directed to be deleted. 8.0 In view of the above, in my considered opinion the AO is not justified to disallow the claim u/s 2 (14) of the Act as it is conclusively proved that the land in question is beyond 8 Kms. from the municipal limits of Nagpur Municipal Corporation. The AO is therefore directed to delete the additions. Hence, these grounds are allowed. Apropos deduction u/s. 54B of the Act: 7. On this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made. Hence, this ground is allowed. 9. Against the above order, the Revenue is in appeal before us. 10. We have heard both the counsel and perused the records. The ld. Departmental Representative relied upon the order of the Assessing Officer. 11. Per contra, the ld. Counsel of the assessee submitted that the assessee has sold an agricultural land. He submitted that the same is duly established by the various documents submitted on record. He further submitted that the issue is also covered in favour of the assessee by the catena of the decisions mentioned hereinabove. 12. Upon careful consideration, we note that the land sold by the assessee has been claimed to be an agricultural land. The Assessing Officer has denied the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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