Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (1) TMI 1845 - ITAT KOLKATALTCG addition - capital asset u/s 2(14) - measurement of distance - whether the assessee’s land sold was a capital asset or not falling within 8 Kms. of the “GHMC” u/s 2(14)(III)(B) of the Act as applicable in the impugned Assessment Year? - taxpayer stand throughout is that its land is not a capital asset since it is situated beyond 8 Kms. distance of any municipality whereas the Revenue’s case is that Mamidipally gram panchayat is adjacent to the GHMC limits - HELD THAT:- There is no evidence on record put forth at the Revenue’s behest specifically quoting any road or surface connectivity of the assessee’s lands to be within 8Kms. distance from any municipality including “GMCH”. Lower authorities have strongly relied upon the some aviation sector “SEZ” which cannot be taken as the relevant factor is 8 Kms distance not fulfilled u/s 2(14)(III)(B) of the Act. They have further relied upon “Google” assistant in coming to the conclusion that the assessee’s lands are within 6 Kms. of the GHMC limits. Such a method has nowhere been prescribed in the Act. The legislature; in Finance Act, 2013 w.e.f. 01/04/2013, has made it clear whilst substituting the earlier provision with the distance of the land in question has to be measured as per aerial distance. This is not the Revenue’s case that the said amendment carries any retrospective operation. Meaning thereby that 8 Kms distance condition has to be measured in terms of the road only as held in the case of CIT vs. Vijay Singh Kadan [2015 (9) TMI 755 - DELHI HIGH COURT]. Revenue fails to dispute that neither of the lower authorities has quoted any surface link between the assessee’s land and the nearest municipality namely GHMC so as to treat its lands as capital asset giving rise to long term capital gains on transfer. We direct the Assessing Officer to delete the impugned long term capital gains addition - Decided in favour of assessee.
|