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2019 (1) TMI 1469 - HC - Income TaxNature of land sold - agricultural land or capital asset - distance between the limits of Navi Mumbai Municipal Corporation and the land in question - Held that:- If land comprises within the jurisdiction of the Thane Municipal Corporation, it falls falls within sub-clause (a). In which case, reference to sub-clause (b) is not necessary. On the other hand, as we held, if it does not comprise within the jurisdiction of Thane Municipal Corporation, it would not fall under sub-clause (a). But if it is situated at a distance of less than 8 kms from Navi Mumbai Municipal Corporation, it would fall under sub-clause (b). In either case, it would be referred as a capital asset. In our opinion, therefore, the Tribunal has correctly appreciated the legal position in this regard. No question of law, therefore, arises. Alternative contention for the assessee as he drew our attention to a letter dated 14.10.15 written by the Assistant 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 who 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. The statutory provision prevailing at the relevant time, did not clarify the manner in which the distance would be measured i.e. either by road or aerially. The legislature now specifically provides that such distance would be measured aerially. This was introduced by Finance Act, 2013 w.e.f. 01.04.2013. In this respect, our attention was drawn to the Circular dated 06.10.2015 issued by the Central Board of Direct Taxes clarifying that judgment of this Court dated 30.03.2015 in ITA No.151 of 2013 in the case of Smt. Maltibai R. Kadu [2015 (4) TMI 227 - BOMBAY HIGH COURT] holding that the amendment in question would apply prospectively, is accepted by the Revenue.
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