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TMI Blog2019 (1) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... ring Survey No.37, admeasuring 32 Aar, and Survey No.38 Hissa No.2(Pt.) admeasuring 96.7 Aar aggregating to 128.7 Aar equivalent to 12870 sq.mts. or thereabouts situate lying and being at Mauje Nighu, Taluka Talathi Saja Naygaon, Taluka Thane District Thane i.e. the said property was a capital asset under the provisions of the Income Tax Act, 1961? (ii) Whether on the facts and circumstances of the case and in law, the Tribunal was right in holding that a chargeable capital gain arose in the hands of the appellant as a result of the execution of the Sale Deed dated 26 May 2008? (iii) Whether on the facts and circumstances of the case and in law, the Tribunal ought to have held that the agricultural land bearing Survey No.37, admeasuring 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was a capital asset. The sale of such capital asset would give rise to capital gain chargeable to tax. The assessee carried the matter before the Commissioner of Income Tax (Appeals) ["CIT(A)" for short]. The CIT(A) allowed the appeal. Upon which, the issue travelled to the Tribunal at the hands of the Revenue. The Tribunal allowed the Revenue's appeal mainly on the ground that the land in question was situated at the distance of 5 kms from the limits of Navi Mumbai Municipal Corporation and, therefore, it was not excluded from definition of term "Capital Asset". A contention which is sought to be raised before us that the distance by shortest route by road from the limits of Navi Mumbai Municipal Corporation and the land in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee certifying that the distance between the land in question and the limit of Navi Mumbai Municipal Corporation is approximately 9 kms. 6. On the other hand, learned Counsel for the Revenue opposed the appeal contending that the Tribunal has rightly interpreted Section 2(14) of the Act. The interpretation advanced by the assessee is not acceptable. He further submitted that as the question of road distance between the land in question and Navi Mumbai Municipal Corporation limits was never raised by the assessee earlier, such contention should not be permitted now. 7. In connection with the assessee's legal contention regarding definition of term "Capital Asset', we may peruse the relevant statutory provision. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction of a municipality or cantonment etc. board having population of not less than ten thousand, it would not fall outside the definition of 'capital asset'. Clause (b) would cover any area within such distance not more than 8 kms from local limits of municipality or cantonment board etc. referred to in item (a) as a Central Government may specify under a notification. 9. In plain terms, therefore, an agricultural land may fall either in clause (a) or clause (b) or neither but not both. If it happens to be a land comprised within the jurisdiction of municipality or cantonment board etc., having population not less than ten thousand, it would fall under clause (a). If this specification is not satisfied, the question would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the distance of the land being more than or less than 8 km from limits of the Corporation would then not arise at all. 11. Additionally, we also find that accepting the contention of Counsel for the assessee, would make sub-clause (b) of clause (iii) of section 2(14), otiose. It is only when a particular land is not comprised within the jurisdiction of municipality or cantonment board etc., as referred to in sub-clause (a), the question of applicability or inapplicability of sub-clause (b) would arise. We do not think that legislature has envisaged any land fulfilling the description contained both in sub-clause (a) and sub-clause (b). The reference to the words "any municipality or cantonment board referred to in item (a)" in sub-clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Director, Town Planning, Navi Mumbai Municipal Corporation. According to this letter, the distance by road or the land in question and the Navi Mumbai Municipal Corporation is approximately 9 kms. If it is so established, in any case, the assessee may be entitled to the benefit under the Act. However, this document was not part of the proceedings below. We would, therefore, not examine this question before us for the first time. Instead, we allow the assessee to produce this document before the Tribunal. The Tribunal may thereafter enable the Revenue to respond to such document and take a fresh decision with respect to the distance between the limits of Navi Mumbai Municipal Corporation and the land in question. We also note that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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