ITA No.496 of 2010 (O&M) -1- IN HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 203 ITA No.496 of 2010 (O&M) Date of decision: December 04, 2017 Commissioner of Income Tax, Faridabad ....Appellant versus Khacheru Singh (since deceased) through his LRs ....Respondents CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MR. JUSTICE AMIT RAWAL ***** Present: Mr. Tajender K. Joshi, Sr. Standing Counsel for appellant-Revenue. ****** AJAY KUMAR MITTAL, J. (Oral) 1. appellant-Revenue has filed instant appeal under Section 260A of Income Tax Act, 1961 (in short, Act ) against order dated 30.11.2009 (Annexure A-III) passed by Income Tax Appellate Tribunal, Delhi Bench 'B', New Delhi in ITA No.2953/Del/2009, for assessment year 2006-07, claiming following substantial questions of law:- (i) Whether, on facts and in circumstances of case, Ld. ITAT was right in law in upholding order of Ld. CIT(A) in deleting addition of Rs.1,25,78,000/- made by Assessing Officer on account of short term capital gain even though lands in question was situated within eight kilometers from municipality (i.e. 7275 meters) and also land in question falls in Gurgaon Manesar Urban Complex in Sector-83, which is urban 1 of 3 ::: Downloaded on - 23-01-2018 10:20:34 ::: ITA No.496 of 2010 (O&M) -2- ----- area as such was capital asset not exempt within meaning of Section 2(14) and Section 54B of Income Tax Act, and hence was liable for capital gain tax u/s 45? (ii) Whether, on facts and in circumstances of case, Ld. ITAT was right in law in upholding order of Ld. CIT(A) in deleting addition of Rs.1,25,78,000/- made by Assessing Officer on account of short tem capital gain by relying upon judgment of Hon'ble Pune Tribunal in case of Manglam Inorganics (P) Ltd. vs. ACIT and of Hon'ble Mumbai Tribunal in case of Laukik Developers V/s DCIT (2008) 303 ITR 356 (Mumbai) disregarding fact that facts in cited cases were different from facts of present case? (iii) Whether, on facts and in circumstances of case, Ld. ITAT was right in law in upholding order of Ld. CIT(A) in holding that road distance method is correct yardstick for measurement of agricultural lands from concerned Municipality limits instead of crow fly i.e. straight line method which is most scientific, logical and in accordance with spirit of Income Tax Act, 1961? (iv) Whether, on facts and circumstances of case, Ld. ITAT was right in law in upholding findings recorded by Ld. CIT(A) that Assessing Officer had failed in confronting evidence of District Town Planner, Gurgaon with assessee as such it cannot be used against assessee as it was gathered at his back are perverse and contrary to evidence available on record as for said purposes case was fixed for 26.08.2008 and 12.09.2008 and 15.09.2008 and Sh. K.C. Gupta, assessee's Counsel attended and confronted with letter of District Town Planner, Gurgaon? 2. At outset, learned Sr. Standing counsel for 2 of 3 ::: Downloaded on - 23-01-2018 10:20:37 ::: ITA No.496 of 2010 (O&M) -3- ----- appellant-Revenue submitted that issue involved in this appeal relates to whether for calculating distance of 8 kms. from any municipality for agricultural land to be considered as capital asset, straight line method has to be applied or road distance method is correct. It was stated that similar issue had been adjudicated by Nagpur Bench of Mumbai High Court in ITA No.151 of 2013 titled as Commissioner of Income Tax-III, Nagpur vs. Smt. Maltibai R. Kadu wherein it has been held that amendment to Section 2(14)(iii) by Finance Act, 2013 effective from 01.04.2014 prescribing distance to be measured aerially, applies prospectively i.e. in relation to assessment year 2014-15 and subsequent assessment years. According to learned counsel, present case relates to assessment year 2006-07 and therefore, said amendment is not applicable. He pointed out that in light of Circular No.17/2015, dated October 06, 2015 issued by Central Board of Direct Taxes, Ministry of Finance, Government of India, he has instructions to withdraw present appeal. 3. Dismissed as withdrawn. (AJAY KUMAR MITTAL) JUDGE (AMIT RAWAL) December 04, 2017 JUDGE sonia gugnani Whether speaking/reasoned? Yes Whether reportable? Yes 3 of 3 ::: Downloaded on - 23-01-2018 10:20:37 ::: Commissioner of Income-tax, Faridabad v. Khacheru Singh