2019 (12) TMI 1291 - AT - Income Tax

Exemption u/s 10(37) - qualify definition of Compulsory acquisition - Whether acquisition of impugned agricultural land by Surat Municipal Corporation (SMC) eligible for exemption? - AO has disallowed the claim u/s 10(37) on the ground that the assessee has sold the land voluntarily, and it is not case of compulsory acquisition of land by SMC - HELD THAT - The Hon ble Gujarat High Court in the case of CIT v. Amaratbhai S. Patel 2013 (5) TMI 449 - GUJARAT HIGH COURT held that for the purpose of section 10(37) it is not required that the assessee himself should carry out the agricultural operations on the land. The appellant referred Para 8 of said order which states that In view of the above provisions, as noted, the Revenue contended that the assessee would not be entitled to that exemption since the agricultural land was not cultivated by the assessee himself. We may recall that CIT (Appeals) was himself convinced that such exemption would be available even in case of a land situated in municipal area. But that the other conditions, namely of the cultivation of such land by the assessee would crucial. So far the contention of the assessee that land was agricultural land and it was case of compulsory acquisition by SMC, it is noticed that as per letter no. ACT/SR/3161 dated. 31.08.2010 it has been clearly mentioned by the SMC that nature of payment was compulsory acquisition (Land/ Building).It is further seen from the perusal of letter no. TBT/OUT/ 4089/ 22 dated. 23.09.2014that land in question was placed under reservation by the Government of Gujarat vide order dated Notification No. GH/V/100 of 2004/DVP/1403/3307/L dated. 02.09.2014 under the provision of section 20 of Gujarat Town Planning Urban Development Act 1976 at the disposal of the SMC to acquire the land under section 77 of Bombay Provincial Municipal Corporation Act, 1949 for erection of Sewerage Treatment Plant. Thus, it was a case of compulsory acquisition of land for which the SMC under the instruction of Government of Gujarat for which the SMC has also given a certificate dated 12.08.2010 letter no. ACT/SR/NO2861 wherein nature of payment to the assessee is described against compulsory acquisition of land at Dindoli. ITAT- D- Bench, Ahmedabad in the case of ITO v. Dipak Kalidas Pauwala 2015 (8) TMI 1268 - ITAT AHMEDABAD wherein the Tribunal has held the that said land in Dindoli ( at Block no. 305) was acquired by SMC for sewerage Treatment Plant are agricultural land which has been compulsory acquired by SMC under the provision of section 107 of GTP UD Act, 1976 as the land needed for the purpose of Town Planning Scheme or Development Plan shall be deemed to be meaning for public purpose within the meaning of Land Acquisition Act , 1894 (I of 1894) and eligible for exemption under section 10(37) . Also confirmed by HC 2016 (4) TMI 431 - GUJARAT HIGH COURT Thus we hold that the land in question was compulsory acquisition by the SMC under the direction of Government of Gujarat. Hence, conditions stipulated in section 10(37) is satisfied. - Decided in favour of assessee.

Summary

Issues Involved:
1. Eligibility for exemption under section 10(37) of the Income Tax Act.
2. Compulsory acquisition vs. voluntary sale of agricultural land.
3. Agricultural operations requirement for exemption.
4. Reopening of assessment, cost of indexation, interest, and penalty under section 271(1)(C).

Detailed Analysis:

1. Eligibility for Exemption Under Section 10(37):
The primary issue was whether the assessee was eligible for exemption under section 10(37) of the Income Tax Act for the long-term capital gain arising from the sale of agricultural land to Surat Municipal Corporation (SMC). The assessee claimed that the land was acquired under compulsory acquisition, qualifying for the exemption. The AO rejected this, stating the land was sold via sale deed, indicating a voluntary sale, not compulsory acquisition.

2. Compulsory Acquisition vs. Voluntary Sale:
The AO argued that the land was purchased by SMC through a sale deed, thus not under compulsory acquisition. The CIT(A) supported this view, noting that the landowners negotiated and sold the land at a mutually agreed price. However, the Tribunal found that the land was placed under reservation by the Government of Gujarat and acquired under section 77 of the Bombay Provincial Municipal Corporation Act, 1949, making it a case of compulsory acquisition. The Tribunal cited previous decisions, including the Gujarat High Court's ruling in CIT v. Amrutbhai S. Patel and the Supreme Court's judgment in Balakrishnan v. Union of India, to support that negotiated compensation does not alter the compulsory nature of the acquisition.

3. Agricultural Operations Requirement:
The CIT(A) held that for exemption under section 10(37), the land must have been used for agricultural operations by the assessee for two years preceding the transfer. The Tribunal, referencing the Gujarat High Court's decision in CIT v. Amrutbhai S. Patel, clarified that it is not necessary for the assessee to personally carry out agricultural operations; it suffices if the land was used for agriculture, even by tenants.

4. Reopening of Assessment, Cost of Indexation, Interest, and Penalty:
Other grounds of appeal related to cost of indexation, interest, reopening of assessment, and penalties under section 271(1)(C) were deemed infructuous following the Tribunal's decision to allow the primary ground of exemption under section 10(37). Consequently, these issues did not require separate adjudication.

Conclusion:
The Tribunal concluded that the land was indeed compulsorily acquired by SMC under the direction of the Government of Gujarat, satisfying the conditions for exemption under section 10(37). The Tribunal directed the AO to allow the exemption, thus allowing the appeals of the assessee. This decision applied mutatis mutandis to the remaining 22 cases listed, and all related appeals were allowed. The order was pronounced in the open court on 13-12-2019.