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TMI Blog2013 (1) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... land for Rs..11 lakhs on 28.3.2005. During the course of the assessment proceedings, the appellant took up the contention that she is entitled to exemption under Section 54B of the Act. The tribunal has affirmed the findings of the authorities that the appellant is not entitled to the benefit of Section 54B for the reason that the property at Ayyanthole Village which she sold was not used for agricultural purposes for a period of two years prior to the date of the sale as required under Section 54B of the Act. It is the further finding of the tribunal that the appellant is entitled only to take Rs..2 lakhs as the cost of acquisition over and above Rs..1 lakh allowed as value of super-structure under Section 54F of the Act. It is being aggrieved by the same that the appellant is before us. 2. The following substantial questions of law have been raised in the Appeal Memorandum: "i. Whether the sale proceeds of the land at Ayyanthole were within the scope of Section 54B of the Income Tax Act ? ii) Whether the cost of improvement of the land that was sold should have been determined at Rs.3,50,000/= ? Iii. Whether the subsequent purchase of land (at Koothattukulam) in which a far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any agricultural income in their returns. It is stated that her father was stated to be a business man dealing in supply of meat to the zoo and the mother, a Nurse by profession who earns income from salary and, therefore, they ought to have disclosed agricultural income, if there was any, in their returns. 5. Per contra, the learned counsel for the Revenue would contend that the findings of the tribunal are unexceptionable. No substantial question of law has been made out. He would point out that a perusal of the substantial questions of law would show that there is no substantial question of law raised that the findings rendered are perverse so as to warrant interference under Section 260A of the Act. He would further contend that no reliance can be placed on the photographs. The photographs were not even produced before the assessing officer. The order of the assessing officer is dated 10.12.2009 and it is only before the appellate authority that some photographs were produced. There is no material to indicate as to whether the photographs related to the property in question. He would also reiterate that the conduct of the appellant in not raising the claim under Section 54B o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and by agriculture, under Section 2(I) of the Indian Income-tax Act, 1922." (ii) Next, he would rely on the decision of the Punjab and Haryana High Court in Commissioner of Income Tax v. Smt. Savita Rani [(2004) 270 ITR 40)]. Therein, the Court held as follows, inter alia: "The exemption is available to the seller of "a capital asset being land". It does not restrict the benefit to agricultural land only. However, the land against which the benefit is sought must have been used by the assessee or his parent for agricultural purposes in the two years immediately preceding the date of sale. From the facts stated by the Assessing Officer himself, it is evident that this condition is clearly fulfilled. It has been observed that poplar plantation stood on this land till 1988-89. It has also been stated that fodder grass and vegetables were grown in the kharif season. The khasra girdwari produced by the assessee also shows that agricultural operations on this land were being carried on by the assessee and other co-owners till its sale. Even the records of the Income-tax Department also show that the assessee had declared agricultural income from this land in her returns of the precedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs available to the Court under Section 260A of the Act. He would point out that it is for the Court to formulate the substantial question of law. In fact, the proviso indicates that a substantial question of law which was not formulated could still be decided upon if it arose. Learned senior counsel for the appellant would also submit that as far as the land at Koothattukulam along with the farm house admeasuring 1 acre 92 cents is concerned, the finding of the tribunal estimating and limiting the value of the plot on which the farm house is located and the value of the land appurtenant thereto and thus the estimating the value of the plot and the land at Rs..2 lakhs and allowing the same in addition to the value of the super structure, may not be the correct view. He would submit that the farm is connected with the enjoyment of the house being an integral part and, therefore, the value of the entire land should have been considered. 8. We notice from the order of assessment that the appellant's late father had applied for sanction for construction of a compound wall before the Thrissur Urban Development Authority. The appellant had claimed in the return, exemption on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal and the officers, we are inclined to pose the question as to what would be the result if those irrelevant aspects are eschewed from consideration. In other words, what are the other materials which the appellant can persuade us to rely on to hold that the land was put to agricultural use ? We, thought the sheet-anchor of the appellant's case was projected to be the photographs showing coconut trees and the water tank. But there, we must notice certain circumstances. We notice that even in the Appeal Memorandum, the appellant would say that the photographs were taken in April, 2004 and the property was sold on 14.11.2004. The appellant filed return on 03.01.2006, where she does not set up a case under Section 54B of the Act. The assessment order was passed on 10.12.2009. We are at a loss as to why the appellant did not choose to produce the photographs before the assessing officer when the matter was pending for such a long time and admittedly according to the appellant, the photographs were taken in 2004. At this juncture, it is also necessary for us to deal with the argument of the learned senior counsel for the appellant that the appellant has done all she could do and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agricultural purpose during the two years prior to the date of the transfer. We do not think that we can overturn a finding of fact, at any rate, based on our re-appreciating the material which was considered by the tribunal which is the final fact finding authority. 10. As far as the certificate issued by the Agricultural Officer, a copy of which was handed over to us is concerned, we notice that it is seen issued in the year 2012. We do not know on what basis the officer could have given such a certificate. Admittedly, the land was already converted for the construction of an apartment complex. We must also remind ourselves that unlike the decision in the Punjab and Haryana High Court (supra), where one of the materials was the inclusion of agricultural income in the return, there is no such return filed. At any rate, we cannot on a re- appreciation of all these materials, overturn the findings of facts entered by the tribunal. Unless the finding of fact is perverse or contrary to the weight of the evidence, the law does not permit us to re-appreciate the evidence and interfere. It is no doubt true that no substantial question of law about the finding be perverse is raised. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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