THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN INCOME TAX TRIBUNAL APPEAL No.140 of 2011 June 28, 2011 Between: Gutta Venkata Rama Devi, Gudivada, Krishna District … Appellant AND The Income Tax Officer, Ward – 2, Gudivada, Krishna District … Respondent THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN INCOME TAX TRIBUNAL APPEAL No.140 of 2011 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) For the assessment year 2007–08 the appellant, whose main source of income is from house property and other sources besides agricultural income, filed return of the income of Rs.1,22,983/- and Rs.55,500/- towards agricultural income. During the scrutiny of the return the assessing officer, having found that the assessee failed to offer capital gains on the value of the land sold for a consideration of Rs.44,94,000/-, asked for particulars. The appellant demurred contending that the land sold is situated within 5 KMs from the Municipal limits of Gudivada and, therefore, the sale proceeds do not attract capital gains. The assessing officer got it verified by the Inspector who conducted inspection in the presence of the assessee. After coming to the conclusion that the land is situated within the Municipal limits i.e., at a distance of 3.7 KMs from the Agricultural Market Committee, Gudivada, the assessing officer brought the sale proceeds from the land to capital gains and completed the assessment. Aggrieved by the same, the appellant went in appeal before the Commissioner of Income Tax (Appeals), Vijayawada, who confirmed the assessment order of the assessing officer. The appellant then unsuccessfully filed appeal being ITA No.473/ VIZAG/2010 before the Income Tax Appellate Tribunal, Visakhapatnam Bench, who confirmed the order of the Appellate Commissioner. The Counsel for the appellant submits that the assessing officer got the distance verified by the Inspector, who measured it by going on a vehicle from the bus stand of Gudivada town which is most objectionable. He disputes the contention of the department that the land is situated within the Municipal limits of Gudivada. We have perused the orders of the assessing authority, Appellate Commissioner as well as the learned Tribunal. It is not only the report submitted by the Inspector that was considered by the Appellate Commissioner as well as the Tribunal. Both the authorities also took into consideration the certificate produced by the appellant which was issued by the Deputy Executive Engineer, Roads and Buildings. Even according to the certificate, the land was at a distance of 5.6 KMs from the periphery of the Municipal limits. After considering the same, the Appellate Commissioner observed that, in order to know whether or not the land sold is situated with the Municipal limits, it should be measured from the centre of Gudivada Municipality but not from the periphery of the Municipal limits. The same weighed with the learned Tribunal while considering the appeal. The issue whether the land sold by the appellant during the assessment year falls within 5 KMs from the Municipal limits of Gudivada is certainly a question of fact and, when such question of fact was materially decided by the Appellate Commissioner and the learned Tribunal, no interference is called for in this appeal. The appeal is, therefore, dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) June 28, 2011 YS