TMI Blog2016 (4) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT Vs. Lalsingh and others (2009 (11) TMI 63 - PUNJAB AND HARYANA HIGH COURT ) has considered the issue of who is competent to measure the distance and observed that “Tahsildar working under the State Government is more competent than the Inspector of the department”. It is further observed that ”without the help of revenue officials, it is difficult for a person to identify the land and then to measure the distance of said land with municipal limits.” Keeping in view of the above judgement of the Punjab & Haryana High Court, we are of the opinion that the certificate issued by the department of R&B, Government of Andhra Pradesh should be given more weightage. The certificate issued by the department of Roads & Buildings is very clear about the distance of the land from Rajahmundry municipality to assessee’s lands. - Decided in favour of assessee - I.T.A.No.279/Vizag/2012, I.T.A.No.280/Vizag/2012, I.T.A.No.281/Vizag/2012, I.T.A.No.283/Vizag/2012, I.T.A.No.284/Vizag/2012 - - - Dated:- 2-3-2016 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For The Appellant : Shri G.V.N. Hari, AR For The Respondent : Shri M.K. Sethy, DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that as per the G.O. issued by the Government of Andhra Pradesh in G.O. Ms No.159MA dated 23.3.1995, wherein Palacherla panchayat in Rajanagaram Mandal figured in the list of various Panchayats included in the Rajahmundry Municipal Corporation and the A.O. asked the assessee again to explain why the lands sold by him should not be treated as asset within the meaning of the provisions of section 2(14) of the Act. In response to that, assessee has filed a certificate from Asst. Engineer, Roads Buildings (R B), South Section, Rajahmundry, wherein, it is certified that The distance from Rajahmundry Municipal Corporation limits i.e. from 194/8 of Lalacheruvu Junction to Diwancheruvu- Narendrapuram road KM03/400 is beyond 8 kilometers (eight kms only) and submitted that as per the certificate issued by the R B, the lands sold by the assessee are beyond 8 kms. and submitted that accordingly the lands sold by the assessee are not an asset within the meaning of section 2(14) of the Act. 4. The assessing officer after considering the explanation of the assessee noted that as per the G.O. issued by the Government of Andhra Pradesh, Palacherla panchayat is in the list of Panc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. has observed that more weightage should be given to the enquiry conducted by the department because it is a specific enquiry. The CIT(A) directed the department to conduct a further enquiry and the inspector of Income Tax again conducted a further enquiry through an office vehicle i.e. four wheeler and accordingly they measured the distance as 7.7 kms. from the Municipal Corporation limits. By considering the said report of the Inspector of Income Tax, the Ld. CIT(A) came to the conclusion that the land sold by the assessee is within 8 kms. of the distance from Rajahmundry municipal limits and hence the said land falls within the purview of the capital asset as per the provisions of sub clause (b) of section 2(14)(iii) of the Act and accordingly, the A.O s action is confirmed. 8. On being aggrieved, assessee carried the matter in appeal before the Tribunal. 9. The Ld. Counsel for the assessee submitted that the certificate issued by the R B Department should be given more weightage than the enquiry conducted by the Inspector of the department. 10. The certificate issued by the R B has not been considered by the A.O. as well as CIT(A) for the reason that in the certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the fact of sale of land by the above assessees came to the notice of the department. Thereafter, a show cause notice was issued to the assessee by asking an explanation from the assessee that why the land sold by the assessee cannot be treated as a capital asset within the meaning of section 2(14) of the Act. In response to that, assessee has submitted that the land sold by assessee is beyond 8 kms from the Rajahmundry municipal corporation and therefore it is not an asset within the meaning of section 2(14) of the Act. Further, he relied on the certificate issued by the Asst. Engineer, R B, Rajahmundry, wherein it was certified as per extract hereunder: Certified that the distance between Lalacheruvu-Velugubanda near Tatalamma Temple is above 8.00 kms (eight kms only) . 14. The A.O. has not accepted the explanation given by the assessee and he has noted that the land situated in Palacherla village is within the purview of Municipal Corporation of Rajahmundry as per GO Ms No.159MA dated 25.3.1995 and also considered the report of the Inspector that the land is within 8 kms and held that the land sold by the assessee is an asset and it is taxable according to sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeler along side of the approach road of the lay out to some extent. It is not clear that from that extent to land sold by the assessee, what is the distance? That the inspector travelled only to some extent and stopped their vehicle and the meter is showing 7.7 kms. Therefore, it cannot be said that the distance from Rajahmundry municipal limits to the land sold by the assessee is exactly 7.7 kms., for the reason that the inspector by measuring the distance, they reached approach road. Through, they tried to reach the assessee s lands, they stopped without reaching the assessee s lands. So based on the speedometer, they came to a conclusion that the distance would be 7.7 kms. without reaching assessee s land. Under these mitigating facts and circumstances of the case, it cannot be concluded that the land sold by the assessee is within 8 kms. of Rajahmundry municipal limits. The Hon ble Punjab Haryana High Court in the case of CIT Vs. Lalsingh and others (2010) 325 ITR 588 (P H) has considered the issue of who is competent to measure the distance and observed that Tahsildar working under the State Government is more competent than the Inspector of the department . It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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