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TMI Blog2022 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... on these findings and then accordingly deal with the adjustment to be made. There is clearly a difference between setting aside an issue to the A.O., which power the Ld. CIT(A) does not have as per Section 251 of the Act, and giving directions to the AO. An issue set aside to the AO is left for adjudication to him, while in a case giving directions, the issue is restored to the AO only for acting on the adjudication done by the CIT(A). - Decided ageist revenue. Distance is to be measured from the municipal limit as on 06.01.1994 - D.R. has been unable to point out any contrary decision either of the Hon'ble High Court and Supreme Court in this regard. We therefore find no infirmity in the order of the ld. CIT(A) who has followed the decision of the ITAT while holding that the distance of the land sold by the assessee is to be measured from the municipal limit of Ahmedabad as on 06.01.1994, that is the date of CBDT Notification specifying limits of urbanization, following the decision of the ITAT in several cases. - Decided against revenue. - ITA No. 2340/Ahd/2018 - - - Dated:- 22-6-2022 - Ms. Annapurna Gupta, Accountant Member And Ms. Madhumita Roy, Judicial Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Aggrieved by this order of the Ld. CIT(A) the Revenue has come up in appeal before us. Originally grounds raised by the Revenue read as under: 1) that the Ld. CIT(A) has erred in law and on the facts in holding that the distance of the land bearing old Survey No. 53/1 and 53/2 of Block No. 55, Khata No. 292 of Bopal Village, Tal. Daskroi, District: Ahmedabad has to be measured from the municipal limit of Ahmedabad as on 06.01.1994 i.e. on the date of notification in No. (SO 9447)[File No. 164/3/87-ITA.1]. 2) Whether the distance between the Municipal limits and the land transferred for the purpose of application of section 2(14) (Hi) of the Act, is to be determined as on the date of transfer? 4. Thereafter vide letter dated 27.10.2020 the following revised grounds were filed: 1) The Ld. CIT(A) erred in law and on facts in directing the Assessing Officer as below:- ..to ascertain the distance from the municipal limit of Ahmedabad as per 06.01.1994 and if the same is found to be less than 8/cms, the said land is to be treated as beyond the municipal limit of Ahmedabad.. which tantamount to setting aside the assessment order, whereas the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital asset -has been provided in section 2(14) of the Act. Sub-clause (a) and (b) of Section 2(14)(in) contemplates that if an agriculture land is in India, and it is situated at a distance of more than 8 KMs. from the local limit of any municipality cantonment board, then, that land would not fall within the ambit of definition capital asset . In other words, if the land which is not forming part of capital asset sold by an assessee, then, no gain as such would be considered, as accrued to the assesses. In the present case, the ld. A3 has observed that-if the distance of geographical situation of the assess e 9's land is being measured from municipality limit, by way of crow's flight: it hen, it is within the municipal limit. In various authoritative pronouncements, as discussed by the Ld. CIT(A), it has been held that the distance is to be Measured by road and not by aerial route. At this stage, it is important to take note of the Board Circular bearing No. 17/2015. It reads as under: CBDT CIRCULAR NO -17/2015, Dated: October 06, 2015 Subject:- Measurement of the distance for the purpose of section 2(14)(iii)(b) of the Income-tax Act for the period prior to Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1.1994, and from that notification, the agriculture land of the assessee was situated beyond a distance of 8KMs. This aspect has been lucidly considered by the ld. CIT(A) in the finding extracted supra. We do not see any reason to interfere in this finding. In view of the above discussion, we do not find any merit in the appeal of the Revenue. It is dismissed. 6.2 Appellant further relied on the devising of Hon'ble ITAT, Ahmedabad in the case of Nilesh R Patel vs. ITO in ITA. No. 3337/Ahd/2015 dated 29/08/2017 wherein it has been held: 6. In the light of the above, let me examine facts of present case for finding out distance of the land sold by the assessee from the municipal limit. The Ld. AO has not carried out a proper exercise. Inspector is not a competent authority to find out geographic situation of land. Similarly, authority- under Vadodara Urban Development Authority is also not a competent authority Revenue record is maintained by State Government under Gujarat Land Revenue Act. Competent authority could be Assistant Collector (Agriculture)/Mamlatdar or any other Revenue officials who in discharge of their official duties maintain land records of entire St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (14)(iii) of the Act are applicable prospectively w.e.f. A.Y. 2014-15 as clarified by CBDT vide circular No. 17 of 2015. It is seen that the said circular is as regards the measurement of distance for the purpose of section 2(14)(iii)(b) of the Act. However, the decisions of Hon'ble ITAT Ahmadabad and other decisions relied upon by the appellant certainly favour the assertion of the appellant in this regard. 6.4. The plea that as on 06.01.1994 i.e. on the date of notification of CBDT in terms of section 2(14)(iii)(b) of the Act, the land was beyond 8 kms from the limits of AIVIC was taken before the AO as noted by the AO on page 13 14 of the impugned assessment order. However, AO was not convinced and held that the limit is dynamic and also the limits expanded by the AMC vide Gazette notification dated 14.02.2006 the nearest area of Bopal Village where the impugned lands are located namely Bodakdev and Thaltej have merged in AMC. Appellant also contended that in the case of other owners no capital gain was charged by department from them. As regards the question whether the limit of 8 kilometer is to be taken from the date of gazette notification dated 6.01.1994 issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's land, distance is to be measured After ascertaining this aspect, the Ld. A.O. shall determine status of the land whether it falls within the exemption clauses provided in section 2(14)(iii) of the Income Tax Act, 1961 or not. The Ld. AO shall, thereafter, decide the computation of capital gain, if any. Such exercise be carried out after providing an opportunity of hearing to the assessee. Respectfully following the above, it is held that the distance of the said land has to be measured from the municipal limit of Ahmedabad as on 06.0/1.1994 i.e. on the date of notification in No. [SO 9447] (file No. 164/3/87-ITA.1). During the course of assessment proceedings appellant had requested the AO vide written submission dated 05.10.2017 as reproduced in the assessment order from page No. 10 to 14 that the distance of the said land from the municipal limit as per 06.01.1994 is less than 8 kms. Accordingly, AO is directed to ascertain the distance from the municipal limit of Ahmedabad as per 06.01.1994 and if the same is found to be less than 8 kms, the said land is to be treated as beyond the municipal limit of Ahmedabad for the purposes of section 2(14) (iii) at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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