Commissioner of Income Tax vs Shabbir Hussain Pithawala

Heard on the question of admission. Brief facts of the case are that the assessee/respondent has filed its return of income on 29th Oct, 2007. The case was selected for scrutiny. Notice under s. 143(2) was issued by the ITO on 17th Sept, 2008. On 16th April, 2009 a detailed questionnaire along with notice under s. 142(1) of IT Act, 1961 was issued to the respondent/assessee. The case was transferred to another Circle. Due to transfer, again notice under s. 143(2) was issued on 8th Sept., 2009. In the computation filed by the assessee under s. 139(1), he has shown sale of various lands in the statement of long-term capital gains and has also claimed deduction under s. 54B by purchase of new lands. On 8th Dec, 2009, the assessee stated that the agricultural lands sold are out of municipal limits and as such the gain on sale of these lands is not taxable. The assessing authority disallowed the same by assessment order dt. 21st Dec, 2009.

The appeal preferred by the respondent/assessee has been dismissed by the appellate authority on 31st March, 2010. He challenged the said order by filing appeal before the Tribunal, Indore Bench, Indore. A contention was raised before the Tribunal that the impugned lands sold by the assessee are beyond the prescribed limit of 8 kms.

The learned Tribunal considering the decision of Punjab & Haryana High Court in the case of Commissioner of Income Tax Vs. Satinder Pal Singh, , has approved the decision of the Tribunal, Mumbai in the case of (2007) 105 ITD 657 wherein it has held that the distance of the agricultural land belonging to the assessee within the meaning of s. 2(14)(iii)(b) has to be measured in terms of the approach by road and not by the straight line distance on horizontal plane or as per crow''s flight.

The learned Tribunal agreed with the argument advanced by the learned counsel for the assessee that distance by road is to be taken and not the Ariel distance and remanded the issue to the file of the learned AO to measure the distance of the impugned land from the municipal limit and then decide the issue in accordance with law. Para 5 of order dt. 12th July, 2012, passed by the learned Tribunal is relevant which reads as under:

In view of the above decision, we are in agreement with the argument of the learned counsel for the assessee that distance by road is to be taken and not the Ariel distance. However, in view of the conflicting versions and the letters/certificate issued by various authorities, as discussed hereinabove, we remand this issue to the file of the learned AO to measure the distance of the impugned land from the municipal limit and then decide the issue in accordance with law. Needless to mention here that the assessee be provided opportunity of being heard. The assessee or his legal representative/Authorised Representative must be present while measuring the distance on a mutually agreed date. Therefore, this ground of the assessee is allowed for statistical purposes.

The Department, aggrieved by the said part of the order and challenged the same by filing appeal under s. 260A of the IT Act, 1961.

It is submitted that the learned Tribunal erred in directing that distance has to be measured as per road distance and not as per horizontal plane for the purpose of s. 2(14)(iii)(b) of the IT Act.

We have heard the learned senior counsel for the appellant and perused the impugned order.

The impugned order is passed on the basis of decision of the Punjab & Haryana High Court in the case of CIT vs. Satinder Pal Singh (supra).

Learned senior counsel for the appellant has not placed any decision of other High Courts wherein contrary view has been taken. It is not a case of the Department that the land in question was situated within 8 kms. from the municipal limit in terms of the approach by road. Considering the aforesaid, we are of the view that no question of law much less a substantial question of law is arising in this appeal. The appeal filed by the appellant has no merit and is, accordingly, dismissed.