TaxTMI 
TaxTMI 
2016 (10) TMI 47
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....arising from the sale of the land, as exempt, because the assets sold was agricultural land situated beyond 8 Kms of municipal limit. Since the Assessing Officer reasoned to believe that the land was situated within 8 Kms of municipal limit, a notice under Section 148 was issued. The Assessing Officer, vide letter, dated 07.03.2013, requested the Inspector of Survey and Land Records (Maintenance), Coimbatore, to furnish the distance, as per record (measured at shortest route) with respect to S.Nos.574/2, 575/2, 577, 578/1, 579/1 & 578/1 located at Keeranam Pudupalayam village to the nearest Coimbatore Corporation limits. Responding to the query, the Inspector of Survey and Land Records (Maintenance), Coimbatore, has answered as follows:- "I have measured the distance from the Coimbatore Corporation limit at Sathy road, Coimbatore being exact starting point (Land mark: beyond Ramakrishna mills at LGB Nagar, Piriru- Gowtham tower, Aiswarya bakery and Jayam medical) to measure the distance as required to the said land as per the Coimbatore Corporation limit plan as was in the year 007 - 08. From that point as mentioned above by the distance road route to the said agricultural....
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....ct in ignoring the evidences gathered by the department for ascertaining the correct distance for the purpose of Section 2 (14) of the Income Tax Act?" 8. Praying for an answer on the substantial questions of law, in favour of the appellant, Mr.T.R.Senthil Kumar, learned Senior Standing Counsel for the Income Tax Department, assailed the correctness of the order of the Income-Tax Appellate Tribunal, "A" Bench, Chennai, dated 22.06.2015, inter alia that, (i) There are two possible routes to the property of the assessee in question and the authorities in support of the assessee's claim adopted a longer route (via Saravanampatti) whereas the shorter route (via Chinnavedampatti) on which the Department relied has been totally ignored. (ii) The evidences collected by the ITO (Inv.) clearly indicate that from the Corporation limits, the lands sold by the assessee is situated within 8 Kms only. (iii) The land in question was not put to use for any agricultural purpose during the two years' period immediately preceding the date of transfer, as laid down in Section 10 (37) (ii) of the Income Tax Act. (iv) No agricultural income was returned by ....
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....as a capital asset, as per the decision reported in 1970-75 ITR - St.90) 12. The certificates, considered by the appellate authority and Tribunal, are issued by the following authorities:- 1. Tahsildar (Coimbatore North) dated 30/4/2008. 2. Inspector of Survey & Land Records Maintenance, Collectorate Compound, Coimbatore, dated 20.12.2010. 3. Sub-Inspector of Survey, Coimbatore Corporation, North Zone, dated 31/8/2012. 4. Letter from Sub-Inspector of Survey stating the exact place of Corporation limit end to measure the distance along with a map. 5. Certificate of Inspector of Survey & Land Records Maintenance dated 15/3/2013 in response to A.O's letter dated 7/3/2013. 6. Letter of Inspector of Survey and Land Records Maintenance, dated 25/3/2013, in response to A.O's letter, dated 15/3/2013, regarding exact place from which distance is measured and 7. Patta passbook and certificates from Keranatham Panchayat." In the light of the above, he submitted that the well considered order of the Tribunal, does not call for any interference and prayed for dismissal of the appeal. 13. Heard the learned counsel ap....
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....ng distance between the agricultural land and the municipal limits of city, decided the issue, holding that the distance of 2 kms., from the municipal limits of city, has to be reckoned for the purposes of Section 2(14)(iii) of the Act, by measuring the same, as per the road distance and not as per straight line distance on a horizontal plane or as per crow's flight. When the said decision was challenged, the Punjab and Haryana High Court, held as follows: "A perusal of the aforesaid provision shows that 'capital asset' would not include any agricultural land which is not situated in any area within such distance as may be specified in this behalf by a notification in the official gazette which may be issued by the Central Government. The maximum distance prescribed by Section 2(14)(iii)(b) of the Act which may be incorporated in the notification could not be more than 8 Kms. from the local limits of municipal committee or cantonment board etc. The notification has to take into account the extent of, and scope for urbanization of that area and other relevant considerations. The reckoning of urbanization as a factor for prescribing the distance is of significant which would....
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.....09.2015], the Delhi High Court, held that for the purpose of Section 2(14)(iii)(b) of the Act, the distance has to be measured from the agricultural land in question to the outer limit of the municipality by road and not by the straight line or the aerial route. The distance has to be measured from the land in question itself and not from the village in which the land is situated. 21. In Kunhunarayanan v. Aravindakshan reported in 1974 KLT 300, in the case of shifting of Kudikidappu under the Kerala Land Reforms Act, 1964 and dealing with Section 78(2)(e)(ii) of the Act, directing that the new site should be "within a distance of one mile from the existing Kudikidappu, the Kerala High Court held that the distance has to be calculated by some road or pathway over the which a person will have a right to approach the alternative site when proceeding thereto from the site of the existing Kudikidappu". 22. Reverting to the case on hand, let us consider the documents produced by the respondent, TEHSILDAR OFFICER Coimbatore North, Coimbatore 641 018. M.M. 4974/2008(A8) Date: 30.4.2008 CERTIFICATE This is to certify that Coimbatore North Taluk, in K....
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....ayam village by Mr. K. Prabakaran residing at 291, Avarampalayam road, Sidhapudur, Coimbatore 641 044. In this regard, I hereby certify that I have personally visited and found the shortest distance from the near by Coimbatore corporation limits (as was in the year 2008) at Sathy road (land mark when visited: near Gowtham compleX, Aishwarya bakery, and Jayam medicals) to the agricultural land in SF numbers 574/2,575/ 2, 576/2, 577, 578/1, 579/1 and 582/1 at Keeranatham puduppalayam village is 9.1 kms measured by the shortest approachable road route taken from boundary of Coimbatore Corporation limit via. Sivananda puram, Saravanampatty, Keeranatham Villge to Keeranathan puduppalayam village till the land is situated. Sub Inspector of Surveys Coimbatore Corporation North Zone To Mr. K. Prabakaran, 291, Avaram Palayam Road, Sidhapudur, Post, Coimbatore 641 044. INSPECTOR OF SURVEY AND LAND RECORDS MAINTANCE, Coimbatore (North), Collectorate Compound, Coimbatore 641 018. Dated 15.03.2013. Sub: Request the distance to land in SF Nos. 574-579 and 582 in Keeranatham Village - Reg. Ref: Your....
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...., to get the details for this purpose. Based on this letter, dated 07.03.2013, was sent to the Inspector of Survey and Land Record Maintenance, Coimbatore, asked "to furnish the distance (measured at shortest route) with respect to Survey Nos.574/2, 575/2, 577, 578/1, 579/1 & 578/1 located at Keeranam Pudupalayam village to the nearest Coimbatore Corporation limit as per the records for the F.Y.2007 - 08. In response to the letter, Inspector of Survey and Land Records (Maintenance) gave certificate that, "I have measured the distance from the Coimbatore Corporation limit at Sathy road, Coimbatore being exact starting point (Land mark: beyond Ramakrishna mills at LGB Nagar, Piriru-Gowtham tower, Aiswarya bakery and Jayam medical) to measure the distance as required to the said land as per the Coimbatore Corporation limit plan as was in the year 007 - 08. From that point as mentioned above by the distance road route to the said agricultural land the distance measures at 9.13 Kms". Another letter, dated 15.03.2013, was sent to the Inspector of Survey and Land Record Maintenance, Coimbatore, asked, "With reference to the certificate issued, you have mentioned the exact startin....
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....s.574/2, 575/2, 576/2, 577, 578/1, 579/1, and 582/1 are lands clearly situated beyond 8.4 KMs from the Coimbatore Corporation Limits. The land measuring 4.02 Hectares is situated at a distance of 8.4 KMs from the Coimbatore Corporation limits. This certificate was issued by the Tahsildar (North Coimbatore) being the Revenue Authority of the village and is competent to issue such a certificate. This certificate was issued on 30.04.2008. 10. The notice- u/s 148 was issued by the Assessing Officer indicating the reasons to the appellant stating that the claim of exemption cannot be allowed since the Inspector of the Department has reported that the said land is situated at a distance of 7.5 KMs from the Coimbatore Corporation Limits. A detailed reply was filed on 15.02.2013 with the Assessing Officer objecting to the re-opening. The appellant also filed the relevant evidence to confirm that the location of the land is more than 8 KMs from the Coimbatore Corporation Limits. The appellant filed the details of Patta passbook and also the adangal and chitta register copies' to prove that the land is agricultural land. The appellant also filed a copy of the starting point and ....
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.... Complex, Aishwarya Bakery and Jayam Medicals [Near Ramakrishna Mills] at Sathy Road, Ganapathy Village. The Inspector of Income Tax, % ACIT, Circle-II, Coimbatore, in her report dated 08.02.2013 submitted that as per the details gathered it was ascertained that the limit for the Coimbatore Corporation ends near a bakery called the "CITY BAKERY" on the Coimbatore - Keeranatham Road during the Financial Year 2007- 08. Keeping this as the starting point for measuring the distance to the site it was found to be 7.9 KMs. The Assessing Officer after examining the details wrote'a letter to the Inspector or Survey and Land Records Maintenance, Coimbatore (North) Collectorate Compound, Coimbatore on 07.03.2013 asking the Inspector of Survey to furnish the distance measured at shortest route with respect to Survey Nos. 574/2, 575/2, 576/2, 577, 578/1, 579/1 and 582/1 located at Keeranam Puduppalayam Village to the nearest Coimbatore Corporation limit as per the records for the Financial Year 2007-08. 12. As seen from the records on 08.03.2013, a letter was addressed by the ACIT, Circle-II, Coimbatore to the ITa (Investigation), Coimbatore referring to the letter of the letter o....
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....lands of the appellant. The Assessing Officer again wrote a letter dated 15.03.2013, to the Inspector of Survey after receiving a Certificate from the Inspector of Survey and Land Records Maintenance. In the Certificate dated 15.03.2013, the Inspector of Survey and Land Records (Maintenance), Coimbatore submitted that "as required by your end, I have visited the agricultural land with Survey Nos. 574/2, 575/2, 576/2, 577, 578/1, 579/1 and 582/1 in Keeranantham Panchayat, Keeranam Puduppalayam Village, Coimbatore District to measure the shortest distance to the said land from the Coimbatore Corporation Limit (2007-2008). For this purpose, I have measured the distance from the Coimbatore Corporation Limit at Sathy Road, Coimbatore, being the exact starting point (landmark : beyond Ramakrishna Mills at LGB Nagar Pirivu - Gowtham Towers, Aishwarya Bakery and Jayam Medicals) to measure the distance as required to the said land as per the Coimbatore Corporation Limit plan as was in the year 2007-2008. From that point as mentioned above by the shortest road route to the said agricultural land the distance measures at 9.13 KMs". 14. Basing on the certificate issued by the Inspecto....
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....ion on the enquiries made by the Inspector of Income Tax at Chinnavedampatti Panchayat to be informed that the Corporation Limit ends at Gopalakrishna Mills / City Bakery. The Inspector of Survey and Land Records (Maintenance) who is the authority has clarified that the exact starting point will be only at LGB Nagar Pirivu - Gowtham Towers, Aishwarya. Bakery and Jayam Medicals and not from City Bakery or any other place, as per Coimbatore Corporation City Limits in the year 2007-2008. Since it is the information received by the Assessing Office-r from the concerned Department, the Assessing Officer cannot brush aside the information received from the Inspector of Survey and Land Records (Maintenance). The Inspector of Income Tax has only made enquiry with the Chinnaveqampatti Panchayat and has come to the conclusion that the Corporation Limit ends at Gopalakrishna Mill / City Bakery. There is no authenticated map or information to this extent. The report of the ITO (Inv.) as discussed earlier cannot be considered without proper authentication from the concerned Authority regarding the Municipal Corporation out limit. In my opinion the Assessing Officer erred in taking a decision in....
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....ce between the agricultural land and the nearest Municipality has to be measured, vis-a-vis, the report of the departmental inspector, we are of the view that the decision of the fact finding authorities that there cannot be any justifiable reason to reject the certificates produced, is correct. Our view is also fortified by the decision of the Punjab and Haryana High Court in Commissioner of Income-Tax v. Lal Singh reported in 325 ITR 588 (P & H). 27. As rightly contended by the respondent, revenue department and survey authorities are competent to measure the land and issue appropriate certificates, and the same cannot be ignored by the assessing officer, by relying on the report of the investigation wing. In such matters, it would be appropriate, to take the assistance of the survey authorities, to arrive at the conclusion. On the facts and circumstances of this case, we also wish to state that in the matter giving weightage to the evidence adduced in this regard, report of the departmental inspector vis-a-vis certificates of the revenue authorities, produced before the assessing officer, the latter should be given weightage and accepted, unless the contrary is proved. 28.....