2009 (11) TMI 63

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....ollowing substantial question of law:- "(i) Whether the order of the Ld. ITAT is perverse as it failed to actually discover the factum of distance of the land from the municipal limit and only distinguished between the two facts available on record? (ii) Whether the Ld. ITAT failed to appreciate that the report of the Income Tax Inspector was more elaborate and descriptive giving the distance from the municipal octroi to the location of the land and simply believed the report of the Patwari countersigned by the Tehsildar? (iii) Whether the Ld. ITAT has misdirected itself in not appreciating that the assessee had himself shown the capital gain of Rs.86,65,900/- and had claimed deduction u/s 54B of Rs.86,93,750/- on account of cost of purc....

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....to as `the CIT(A)') vide its order dated 24.09.2004 allowed the said appeal while observing as under:- "I have carefully considered the facts and submissions made. I have also verified the assessment records. I find that the assessee's contention is correct that the Assessing Officer had written to the Tehsildar, Gurgaon vide his letter dated 09.01.2004, requesting the Tehsildar to furnish the distance certificate of the land from the nearest municipal limits of Gurgaon. The Tehsildar had reported on 16.01.2004 that the land was at a distance of 8.2 kms. The above copy of the letter as well as the Tehsildar's report are available in the assessment records. A copy of this letter with the report of the Tehsildar is also furnished by the asse....

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....) that he should have requested the higher authorities of the State Govt. if he did not believe his report to be correct or he could have summoned the Tehsildar u/s 131 of the I.T. Act in order to verify the veracity of the report. He was not justified in brushing aside the report of the revenue official who is competent to measure the distance of the land. The CIT(A) observed that the Tehsildar is more competent than the Inspector of the Department to measure the distance of the land. Thus, we do not find any infirmity in the order of the CIT(A) and the same is sustained for the reasons given therein." 4. Against the said order, the revenue has filed the instant appeal. 5. We have heard the counsel for the parties. 6. After hearing the ....

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....hri Mukesh Yadav, grandson of late Smt. Pusha Devi, who identified the land and the said land is situated near to village Fazilpur and the distance of land from Rajiv Chowk Municipal Octroi is 5.3 Kms. 7. In our view, the CIT(A) has rightly not accepted the aforesaid report of the Inspector. In the said report, neither the khasra number of the land of the assessee was given nor it has been explained how the distance of the said land with the municipal limits was measured. Even otherwise, 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. On the other hand, CIT(A) has rightly relied upon the report dated 16.1.2004 given by ....