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TMI Blog2013 (8) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ion u/s 54B - No capital asset was subjected to agricultural operation - Held that:- Merely because the assessee's brother has not made any claim u/s 54B that cannot be a reason for disallowing the claim of the assessee. When the assesee has produced certain material before this Tribunal and claimed that the land was subjected to cultivation, this Tribunal is of the considered opinion that the assessing officer has to examine the documents independently and record finding whether the land in question is subjected to cultivation or not? Therefore, the omission of the assessee's brother to claim deduction u/s 54B cannot be a reason to disallow the claim of the assessee. Accordingly, the order of the lower authorities are set aide and the issue is remitted back to the file of the assessing officer. The assessing officer shall reconsider the issue in the light of additional evidence filed by the assessee before this Tribunal and thereafter decide the same in accordance with law after giving reasonable opportunity to the assessee - Decided in favour of assessee. - I.T.A No. 154/Coch/2012, I.T.A No. 166/Coch/2012, I.T.A No. 249/Coch/2012 - - - Dated:- 16-8-2013 - Shri N. R. S. Ganesan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ((1997) 227 ITR 733 (Mad) and submitted that in the case before the Madras High Court 10 grounds 29 sq.ft. was used by the assessee by way of residence pathway, sit out, servant quarters, cow shed, etc. This area around the house was held by the Madras High Court as land appurtenant to the main building. The ld.counsel also placed reliance on the judgment of the Apex Court in the case of Suryakumar Govindjee vs Krishnammal Ors (1990) 4 Supreme Court Cases 343. On a query from the bench what would be the area of land that may be required for convenient enjoyment of the house constructed in the locality where the assessee's house was situated, the ld.counsel submitted that 60 cents of land is required for convenient enjoyment of the house constructed in the locality where the house was situated. 5. On the contrary, Smt. S Vijayaprabha, the ld.DR submitted that the assessee has acquired 196.144 cents of land and constructed building consisting of plinth area of 254.94 sq.mtrs. This comes to 1.63% of the total area of the land. On a query from the bench what would be the extent of land required for convenient enjoyment of the house, the ld.DR submitted that 10 cents of land may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. Therefore, this Tribunal is of the considered opinion that the assessing officer shall reconsider the issue afresh after considering all the factors mentioned above and thereafter determine the extent of land which is required for proper and convenient enjoyment of the residential house. Accordingly, the orders of the lower authorities are set aside and the issue of exemption u/s 54F is remitted back to the file of the assessing officer. The assessing officer shall reconsider the issue afresh in the light of the discussion made above and the case laws relied upon by the assessee and thereafter decide the issue in accordance with law after giving reasonable opportunity of hearing to the assessee. 7. The assessee has taken two more grounds with regard to expenditure incurred towards development of the land which was sold and brokerage paid to the extent of Rs.11 lakhs. We heard the ld. counsel for the assessee and the ld.dR. 8. It appears from the material available on record that these grounds were not raised before the CIT(A) even though the assessee claimed them before the assessing officer. From the assessment order it appears that the claim made towards development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Haryana High Court in the case of Jagriti Aggarwal (supra) had an occasion to interpret section 54F(4) of the Act. Both the High Courts found that section 139(4) gives extended time for filing the return of income. Therefore, the amount deposited within the due date for filing the return of income u/s 139(4) also has to be considered for granting exemption u/s 54F of the Act. We find that the Apex Court in the case of Prakash Nath Khanna Anr vs CIT (2004) 266 ITR 1 (SC) had an occasion to interpret the words "due date". Though it is in respect of prosecution, the Apex Court after considering various case laws on the subject found that the due date means the due date mentioned in section 139(1) of the Act. However, both the authorities below have not considered this judgment of the Apex Court. Moreover, the assessee also had no occasion to explain the consequences of this judgment of the Apex Court before the lower authorities or before this Tribunal. Therefore, this Tribunal is of the considered opinion that the assessing officer shall reconsider this issue also. In other words, since the major issue with regard to the investment in the residential house is remitted back to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer rejected the claim of the assessee mainly on the ground that the assessee's brother, Shri Tony J Pulickal has not made any claim that the capital asset was subjected to agricultural operation. According to the ld.representative, merely because the brother of the assessee omitted to claim deduction u/s 54B it would not disentitle the assessee to make a claim u/s 54B of the Act. The assessee has filed several documents such as bills, diary, etc. in the form of additional evidence to support claim that the capital asset was subjected to agricultural operations. According to the ld.representative, the capital asset was classified as agricultural land in the government records and in fact the assessee cultivated the land. The assessee has produced a certificate from the village officer to show that the subject land was under cultivation. The assessee has also produced copies of the bills for purchase of fertilizer and entries in the diaries. 16. We have heard Smt. S Vijayaprabha, the ld.DR also. On a query from the bench, when the assessee has filed additional evidence to substantiate the claim that the land was subjected to cultivation why the assessing officer in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re claim on the ground that no material was produced before him. However, the CIT(A) found that the assessee has filed all the documents before the assessing officer for construction of the residential house. The assessee has also filed approved valuer's report with regard to the investment before the assessing officer along with the building plan, etc. Accordingly, the CIT(A) accepted the claim of the assessee towards construction. However, the cost of proportionate land was restricted to 5 cents of land. According to the ld.representative, the assessee has purchased only 10.885 cents of land which is essential for proper and convenient enjoyment of the house. 20. On the contrary, Smt. Vijayaprabha, the ld.DR submitted that the CIT(A) has rightly restricted the area of the land to 5 cents. On a query from the bench what would be the reasonable area that is required for proper and convenient enjoyment of the house, the ld.DR submitted that 10 cents of land may be reasonable for proper and convenient enjoyment of the house. 21. We have considered the rival submissions on either side and also perused the material available on record. Though the assessing officer rejected the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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