TMI Blog2015 (11) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... has to prove one essential condition that the land owned by him or her is situated at a distance more than 8 kms. from the nearest Municipality, which was proved by the assessee. To sum up, in our opinion, the distance has to be measured in terms of the approach by road and not by a straight-line distance on horizontal plane or as per crow’s flight. Further, the assessee has also proved that the land was situated at a distance more than 8 kms. from the nearest Avadi Municipality. Measurement of aerially distance came into force with effect from 1.4.2014 under sec. 2(14)(iii)(b) of the Act and it cannot be applied to the present assessment year 2009-10. Regarding carrying out of agricultural activities in the said land, there is an evidence in the form of lease deed between the assessee (and other family members) and M/s. Vel Horticultures leasing the land for agricultural operations, the leasing company claimed agricultural income which had been accepted in the scrutiny assessment as noted by the CIT(Appeals) in his order, which was not controverted by the ld. DR. As such it cannot be denied that the land in question was an agricultural land situated at a distance more than 8 km ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Kms only. 2.6 The C!T(A) has failed to note that the Assessing Officer had followed the direction of the Hon'ble !TAT and by examining all evidences placed before them and passed the order in accordance with l aw. 3. The facts as narrated in the case of Dr. R. Rangarajan are that the assessee is a Founder-Chairman of Veltech Group of Educational Institutions, Avadi. There was a search in the premises of the educational institutions run by the Trusts in which the assessee is one of the Trustees. The assessee's premises were also searched u/s.132 of the Act on 27.08.2008. For the AY 2009-10, the assessee filed a e-return of income on 31.07.2009 disclosing a total income of ₹ 3,50,07,409/-. He filed a revised return of income on 29.10.2009 disclosing a total income of ₹ 4,38,44,341/-. Subsequently a revised return was filed on 22.12.2010 declaring a total income of ₹ 1,29,32,780/-. The difference in the income originally returned and revised represent capital gains of ₹ 3,09,11,561/- on the sale of land at Morai Village, Ambattur Taluk originally offered but withdrawn in the revised return. During the course of original assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural operations. As the evidences produced before the ITAT was not considered originally by the AO, the ITAT set aside the orders of the lower authorities and remanded the matter back to the file of the Assessing Officer for re-adjudicating the issue afresh after verifying all the documents and thereafter passing a speaking order after giving proper opportunity to the assessee. The relevant extract of the decision of the ITAT in ITA No. 1779/Mds/2011 dated 16th March, 2012 is reproduced as under: 5. After considering the rival submissions and perusing the orders of the lower authorities and materials available on record, we find that the Assessing Officer has considered the impugned land as a capital asset liable to capital gains tax on the ground that the plot of land was situated beyond the notified limit of 8 kms from the nearest Avadi Municipality, the land was barren as reported by the Inspector, no crop was grown on the land and that the plot of land was transferred to a Trust running Engineering Colleges with a view to get the Deemed University status. The Id. CIT(A) confirmed the order of the Assessing Officer for the very same reasons. We observe that the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land at an amount of ₹ 4,38,44,341/-. Similarly, in the case of Smt. Sakunthala Rangarajan, an amount of ₹ 3,06,74,615/- treated as capital gains on transfer of capital asset. Aggrieved by this, the assessees went in appeal before the CIT(Appeals). 4. On appeal, the CIT(Appeals) after going through the earlier appellate orders in this case and the submissions of the assessee observed that in view of the pieces of evidence which were available before the AO as well as before him in particular the certificate of the VAO, certificates from the Deputy Surveyor Ambattur Taluk and General Manager, Metropolitan Transport Corporation (Chennai) Ltd's certifying the land to be situated at a distance more than 8 km from Avadi Municipality and lease deed between the assessee, other family members M/s. Vel Horticultures leasing the land for agricultural operations, which had been accepted in the scrutiny assessment and also as a source of investment made by the assessee, it cannot be denied that the land in question was an agricultural land situated at a distance more than 8 kilometres from the nearest Municipality (Avadi). The AO , as is evident from the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment made by the assessee. The AO has also made independent enquiries from the Tehsildar, Ambattur with regard to the distance of the land in question. The result showed that the land in question is not situated within a distance of 8 kms. from the nearest Municipality. The AO was not ready to accept this certificate and he has not given any reason for the same. However, the Inspector reported that the land in question was situated at a distance of 5.5. kms. from the nearest Avadi Municipality. It was the contention of the ld. AR that to reach the land, there is a private road, which is laid and maintained by the CRPF, in which public has no access. Thus, the contention of the DR that the nearest route is to be considered to access the distance of the property from the nearest Municipality limit is not acceptable. It is to be noted that the distance to be measured from the accessible road and not from the road made under the control of the CRPF. 6. In our opinion, Tehsildar is the competent authority to issue certificate, which is to be accepted. Further, the distance of agricultural land has to be measured in terms of the approach by road and not by a straight-line distance on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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