TMI Blog2009 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ital Assets” as defined in Section 2(14)(iii) of the Income Tax Act, 1961, the assessee produced a certificate from Tehsildar, Gurgaon to the effect that the land of the assessee was situated beyond 8 Kms. from the Gurgaon municipal limits. The Assessing Officer while not accepting the said report and while relying upon the report given by the Inspector, did not accept the assessee's contention of exemption under Section 54B and determined the capital gain to the tune of Rs.86,65,900/- in the assessment order – held that - without the help of the revenue officials, it is difficult for a person to identify the land and then to measure the distance of the said land with the municipal limits. – CIT(A) and ITAT accepted the the report dated 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction u/s 54B before the Assessing Officer? (iv) Whether the Ld. ITAT is bound to discover the correct facts as it is the highest fact finding authority, which it failed to do? 2. In the present case, in the Financial Year 1995-96 relevant to Assessment Year 1996-97, late Smt. Phusha Devi wife of Jug Lal had sold her agricultural land situated in Village Fazilpur, Jharsa for a sum of Rs.89,75,000/-. After her death, notices under Section 148 were issued to her legal heirs. In response to that, a return was filed showing the net taxable income of Rs.37,000/-. In the said return, the long term capital gain was shown as nil. In order to claim that the agricultural land owned and sold by the assessee did not fall in the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order. The Assessing Officer has not given any reason why he considered this report not to be adequate, and directed the Inspector to submit the report regarding the distance of the land (the direction of the Assessing Officer is available in order sheet entry dated 21.01.2004). It is a well established fact that it is the Tehsildar working under the State Government, is competent to measure the distance of the land, more competent to measure the distance of the land, more competent than the Inspector of the Department. In fact, in almost all the similar cases, the department has accepted the Tehsildar's report regarding the measurement of the distance of the land. If the Assessing Officer was not satisfied as to the distance certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT, after appreciating the material, have recorded a pure finding of fact about the distance of the land of the assessee from the municipal limits. The said finding is based upon the report of the Tehsildar dated 16.01.2004. We have perused all the three reports which have been placed on record by the appellant along with affidavit of Shri Sanjay Kumar, Income Tax Officer, Ward-4, Gurgaon. One report issued by the Tehsildar, Gurgaon is dated 21.4.2003. The said report was given on the application made by the assessee in which it is certified that the land of the assessee is almost 8 kms. away from the municipal limits. The second report was also given by the Tehsildar which is dated 16.1.2004. The said report was given by the Tehsildar on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Therefore, there was no justification for ignoring the said report. Further, except the report dated 16.1.2004 given by the Tehsildar, which was relied upon by the revenue to show that the distance of the land of the assessee from the municipal limits was less than 8 kms., there is no other material on the record contrary to the said report. In view of these facts, we are of the opinion that a pure finding of fact has been recorded by the CIT(A) and the ITAT on the issue of distance after considering the evidence available on the record. The said finding cannot be said to be perverse, illegal or contrary to the evidence available on the record. Therefore, in our opinion, from the order of the ITAT, no substantial question of law is aris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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