The Commissioner Of Income Tax, Faridabad v. Khacheru Singh (Since Deceased) Through His Lrs

ITA No.496 of 20170 (O&M , fF IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH 203ITA-No.496 of 2010 (O&M)Date of decision: December 04, 2017 The Commissioner of Income Tax, Faridabad ...Appellant Versus Khacheru Singh (since deceased) through his LRs .... Respondent CORAM:HON'BLE MR. JUSTICE AJAY KUMAR MITTALHON'BLE MR. JUSTICE AMIT RAWAL &&&&& Present:Mr. Tajender K. Joshi, Sr. Standing Counselfor the appellant-Revenue. &&&&&& AJAY KUMAR MITTAL, J.(Oral) 1.The appellant-Revenue has filed the instant appeal undersection 260A of the Income Tax Act, 1961 (in short, ‘the Act)against the order dated 30.11.2009 (Annexure A-Ii]) passed by theincome lax Appellate Tribunal, Delhi Bench B, New Delhi in IIANo.2953/Del/2009, for the assessment year 2006-07, claiming the following substantial questions of law:- “(I) Whether, on tne facts and in the circumstances of thecase, the Ld. ITAT was right in law in upholding the order ofthe Ld. CIT(A) In deleting the addition of Rs.1,25, 78,000/made by the Assessing Officer on account of short termcapital gain even thougnh the lands In question was situatewithin eight kilometers from the municipality (i.e. 7275meters) and also the land in question falls in the GurgaonManesar Urban Complex in Sector-83, which is an urban 2D , fF area aS sucn was a capital asset not exempt witnin themeaning of Section 2(14) and Section 54B of the IncomeTax Act, and hence was liable for capital gain tax u/s 45°(11)Whether, on the facts and in the circumstances of thecase, the Ld. ITAT was right in law in upholding the order ofthe Ld. CIT(A) In deleting the addition of Rs.1,25, 78,000/made by the Assessing Officer on account of short temcapital gain by relying upon the jJuagment of Honbie PuneTribunal in the case of Manglam Inorganics (P) Ltd. vs,ACIT and of Hon'ble Mumbai Tribunal in the case of LaukikDevelopers V/s DCIT (2008) 303 ITR 356 (Mumbai)disregarding the fact that facts In the citeaq cases weredifferent from the facts of the present case? (111)Whether, on the facts and in the circumstances of thecase, the Ld. ITAT was right in law in upholding the order ofthe Ld. CII(A) In nolding that the road distance method Isthe correct yardstick for the measurement of agriculturallands trom the concerned Municipalitylimits instead of crowfly i.e. straight line method which is the most scientific,logical and In accordance with the spirit of the Income laxAct, 19617 (Iv)Whether, on the facts and circumstances of the case,the Ld. ITAT was right in law in upholding the findings|recorded by the Ld. CII(A) that the Assessing Officer nadfailed in confronting the evidence of the District TownPlanner, Gurgaon with the assessee as such It cannot beused against the assessee as It was gathered at his backare perverse and contrary to the evidence available onrecord as for the said purposes case was fixed for26.08.7008 and 12.09.7008 and 15.09.2008 and Sh. KC)Gupta, assessee's Counsel attended and confronted withthe letter of District [own Planner, Gurgaon’? At the outset, learned sr. Standing counsel for the ITA No.496 of 20170 (O&M , fF (Iv)Whether, on the facts and circumstances of the case,the Ld. ITAT was right in law in upholding the findings|recorded by the Ld. CII(A) that the Assessing Officer nadfailed in confronting the evidence of the District TownPlanner, Gurgaon with the assessee as such It cannot beused against the assessee as It was gathered at his backare perverse and contrary to the evidence available onrecord as for the said purposes case was fixed for26.08.7008 and 12.09.7008 and 15.09.2008 and Sh. KC)Gupta, assessee's Counsel attended and confronted withthe letter of District [own Planner, Gurgaon’? At the outset, learned sr. Standing counsel for the ITA No.496 of 20170 (O&M , fF appellant-Revenue submittea that the issue Involved in this appealrelates to whether for calculating the distance of 8 kms. from anymunicipality for an agricultural land to be considered as capital asset,the straight line method nas to be applied or road distance metnod Iscorrect. It was stated that similar issue had been aajudicated by theNagpur Bench of the Mumbai High Court in ITA No.151 of 2013 titledaSThe Commissioner of Income Tax-lll, Nagpur vs. Smt. MaltibalR. Kadu|wherein it has been held that the amendment to Section2(14)(ll) by the Finance Act, 2013 effective from 01.04.2014prescribing distance to be measured aerially, applies prospectivelyi.e. in relation to assessment year 2014-15 and subsequentassessment years. According to the learned counsel, the presentcase relates to assessment year 2006-07 and therefore, the saidamendment is not applicable. He pointed out that in the light ofCircular No.17/2015, dated October 06, 2015 Issued by the CentralBoard of Direct Taxes, Ministry of Finance, Government of India, hehas instructions to withdraw the present appeal. 3Dismissed as withdrawn. (AJAY KUMAR MITTAL)JUDGE December 04, 2017 sonia gugnanl (AMIT RAWAL)JUDGE Whether speaking/reasoned? Whether reportable’ Yes|Yes