TMI Blog2013 (8) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... f the village is about 2000 persons. The assessee has also produced a certificate from the land Surveyor wherein it has been mentioned that the impugned land is situated at 9.09 kms. from the municipal limit. The assessee has also placed on record the google map. All these certificates clearly say that the impugned land is situated beyond 9 kms. from the from the municipal limit, therefore, as per Section 2(14)(iii) of the Act, the impugned agricultural land is situated in the revenue record of Village Lasudia Parmar whose population is about 2000 people, which is less than the condition mentioned in Section 2(14)(iii)(a) of the Act. So far as the condition mentioned in sub-clause (b) of the aforesaid Section is concerned, from record it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeal). The assessee filed number of documents to prove that land is more than 8 kms. by road from the municipal limit by straight distance method. 5. The learned Commissioner of Income Tax accepted the said contention of the assessee and set aside the order of the Assessment Officer passed on 31.01.2012. 6. The revenue challenged the order dated 31.01.2012 by filing appeal before the ITAT, Indore Bench. The learned ITAT, after appreciating the assessment gave a finding in Para 4 of the impugned order that the agriculture land is situated beyond 9 kms. from the municipal limit of Village - Lasudia Parmar, Tehsil Sanwer, District Indore and the population of the village is about 2000 persons and granted exemption to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the appellant at length and perused the findings recorded by the ITAT as well as the material available on record. Para 4 of the impugned order is relevant, which reads as under :- So far as the question of distance from Municipal limit is concerned, we have perused the record and find that even as per the report of the Income Tax Inspector (pages 9 and 10 of the paper book) it has been mentioned that the land is situated 9.7 kms. by road from the municipal limit by a straight distance method. The map of the land (page 10) was prepared by the Income Tax Inspector himself, therefore, disregard to such document is not justified. A certificate has been issued by the Executive Engineer, Public Works Department (page 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereas the issue before us pertains to section 2(14) with respect to agricultural income, therefore, not applicable to the facts of the present case. The learned CIT DR placed reliance on the decision of the Hon'ble Gujarat High Court in Balkrishna Hariballabhadas Vs. CIT; 138 ITR 245. We find that in that case, the land was situated within municipal limits of Ahmedabad and the surrounding land was developed and since the land was not agricultural land, the gains from sale of such land was held to the exigible to capital gains tax. However, the land in question is clearly agricultural land situated beyond 9 kms from the municipal limit, therefore, this case may not help the revenue, moreso one fact pertinent to mention here that par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that it gives rise to capital gain on the sale of such land. in the case of Sarifa Bibi Mohd. Ibrahim; 136 ITR 621 (Guj) the land was situated near railway station and was sold on square yard basis to housing society. The profit from the sale of such land was held to be assessable to capital gains tax. Keeping in view the location and other attendant circumstances, it was held to be assessable to capital gains tax. 13. On-going through the aforesaid findings, we are of the view that findings in respect of distance of agriculture land, which is more than 8 kms from the municipal limit is based on appreciation of the certificate issued by the local authorities, revenue authorities etc. 14. It is not the case of the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o permission was taken for conversion of land use. It was held that since no agricultural income was shown in the return is not the material for the purposes of gains from sale of such land. 19. Similar is the view taken by Punjab Haryana High Court in the case of CIT Vs. Lalsingh Others; 228 CTR 575 and CIT Vs. Satinder PalSingh (2010) 229 CTR 82. 20. in the case of Lalsingh Others (supra), the Punjab Haryanaax Court concluded that the report of Tehsildar having certified that the assessee's land was 8 kms. from the municipal limit, the land constituted agricultural land entitling the assessee to exemption under Section 54B of the Act. 21. As mentioned in the preceding paragraph that in the case of one brother, which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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