TMI Blog2019 (1) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recorded in brief which are as under. 3. The appellant assessee had sold agricultural land, comprising of Survey Nos. 30, 37, 38 and 46 situated at village Nighu for a sale consideration of ₹ 3.80 crores under an agreement dated 26.05.2008. The assessee on the premise that the said land did not form part of the his capital asset, did not offer the profit arising out of said sale to capital gain in the return filed for the said assessment year 2009-10. The Assessing Officer held that the land in question was a capital asset. The sale of such capital asset would give rise to capital gain chargeable to tax. The assessee carried the matter before the Commissioner of Income Tax (Appeals) [ CIT(A) for short]. The CIT(A) allowed the appeal. Upon which, the issue travelled to the Tribunal at the hands of the Revenue. The Tribunal allowed the Revenue's appeal mainly on the ground that the land in question was situated at the distance of 5 kms from the limits of Navi Mumbai Municipal Corporation and, therefore, it was not excluded from definition of term Capital Asset . A contention which is sought to be raised before us that the distance by shortest route by road from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny kind held by an assessee whether or not connected with his business or profession. However, clause (iii) thereof excludes agricultural land which as it stood at the relevant time read as under : 2(14) (iii) agricultural land in India, not being land situate (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within such distance, not being more than eight kilometers, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette . 8. A perusal of sub-clause (iii) would show that exclusion of agricultural land from the term 'capital asset' would again be excluded if the land falls either under (a) or (b) thereof. Sub-clause (a) would cover any agricultural land which is compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to verify if it satisfies the conditions of sub-clause (b) at all. Reference to the distance of the land being more than or less than 8 km from limits of the Corporation would then not arise at all. 11. Additionally, we also find that accepting the contention of Counsel for the assessee, would make sub-clause (b) of clause (iii) of section 2(14), otiose. It is only when a particular land is not comprised within the jurisdiction of municipality or cantonment board etc., as referred to in sub-clause (a), the question of applicability or inapplicability of sub-clause (b) would arise. We do not think that legislature has envisaged any land fulfilling the description contained both in sub-clause (a) and sub-clause (b). The reference to the words any municipality or cantonment board referred to in item (a) in sub-clause (b) must be to any municipality or cantonment board which has a population of not less than ten thousand , which is the phrase used in sub-clause (a). 12. Contention of the Counsel for the appellant was some what unusual. He argued that land comprised within the jurisdiction of Thane Municipal Corporation (a contention which we have not accepted) and was situ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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