9911796707
TMI Blog2013 (12) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... Nashik erred in deleting the addition at Rs. 10,55,776/-on account of disallowance of deduction claimed under Sec.54B, for A.Y.2008-09 made under Sec.143(3) of Income Tax Act,1961. 3. On the facts and in the circumstance of the case, the learned CIT(A)-I, Nashik erred in deleting the addition at Rs. 10,00,000/- on account of disallowance of expenses for transfer of land, for A.Y.2008-09 made under Sec. 143(3) of Income Tax Act,1961. 4. On the facts and circumstance of the case the CIT Appeal erred in admitting fresh evidence even though provisions of rule 46 A were not satisfied in the instant case. 5. The CIT (A) erred in the facts and circumstances of the case in not giving reasonable opportunity to the AO for cross examining the parties, even though such request was specifically made by AO under letter No.NSK/ITO/Wd l(4)/ Remand Report/2011-12/31 dated 26/04/2011. The evidence produced by the assessee under Rule 46A(1) cannot be considered on the merits unless the AO is given an opportunity to cross-examine the witnesses, as held by the Hon'ble Madras High Court in the case of CIT Vs. Subbu Shashnak (2010) 327 ITR 577 (Mad.) 6. The learned CIT (A) ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad etc. The said general rates of Rs. 80,000/- per Hector for Jirayat agricultural lands situated at various 60 places for stamp duty purposes. Thus, the valuation estimated without considering exact location of land and its market value and other relevant factors. While the valuation of the land made by the approved valuer is in respect of specific land of the assessee situated at Mhasrul shiwar on specific physical verification and location of the land arrived at by the valuer who is an expert in the field has to be relied on better footings. The valuer has based his valuation on the basis of exact location, physical verification and instances of sale of land and scientific formula has been adopted for valuation of land. Accordingly, more precisely has been adopted by the concerned valuer. The Assessing Officer is not an expert in the field of valuation of land for computing capital gain. The fair market value as on 01.04.1981 is to be determined on the basis of report of Registered Valuer and not on the basis of value prescribed for stamp duty purposes. The CIT(A) has relied on the reply of the registered valuer explaining the basis for valuation of the land as on 01.04.1981. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment order which read as under: "The assessee's have claimed deduction u/s. 54B as they have purchased agricultural land within time allowed u/s. 54B. On going through the 7/12 extracts for the various land sold it is seen that the entire land was Gayran and Padit Land except 2.40 Hector in Gat No. 31/1/1, being used for agriculture purpose. It was therefore informed to that assessee that except for 2.40 Hector capital gain attributable to 2.40 Hector, the deduction u/s. 54B is not admissible against the capital gain attributable to other land. It is crystal clear that the land sold was not the land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes. In the sathekhat as well as sale deed in para 1 regarding 'Description of Property', it has clearly been mentioned that the land to be sold are known as "Gayran and Padit Agricultural Land' of which the description is given in para 1 of the sathekhat and sale deed. The assessee's reply that the total area of land was being used for agricultural purpose, is baseless and cannot be accepted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has grown fodder grass on part of land as mentioned in 7/12 extract filed on the record of Assessing Officer. In support of the claim grass grown was as a result of some activity of ploughing and sowing of grass seeds, the assessee has filed affidavit of the person from whom grass seeds was purchased and labourers who have carried out the ploughing and sowing work and also the work of cutting of fodder grass mainly for consumption of buffaloes. Though, the Assessing Officer verified the submissions and evidence and filed the remand report that contention of assessee should be rejected. The due opportunity was provided to the Assessing Officer in remand proceedings. The contention of the assessee has been that fodder grass grown on agricultural land for utilization of land for agricultural purposes was fortified by the decision of CIT Vs. Smt. Savita Rani (2004) 270 ITR 40 (P & H). In view of above, it was found that assessee has grown fodder grass during rainy season on the part of land mainly for buffaloes owned by Bhore family by carrying out agricultural operations such as ploughing, sowing and cutting. Thus, the CIT(A) held that grass grown on part of the land as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has rightly held that the assessee was entitled to claim deduction u/s.54B to the extent of Rs. 19,29,190/- as claimed by the assessee as against allowed by the Assessing Officer at Rs. 8,73,414/-. Accordingly, the Assessing Officer was rightly directed to delete the addition of Rs. 10,55,776/- on account of disallowance of part of claim u/s.54B. This reasoned finding of CIT(A) needs no interference from our side. We uphold the same. 6. Next issue is with regard to addition of Rs. 10,00,000/- to capital gain declared by disallowing expenses for transfer. During the assessment proceedings and appellate proceedings, the assessee has claimed that the sisters/daughters of the Bhore family had limited rights in the agricultural land sold and hence they were paid consideration of Rs. 10,00,000/- for surrendering their rights. In this regard, the submission were filed on behalf of assessee during appellate proceedings vide letter dated 15.04.2011 which is reproduced as under: "The sisters/daughters of the Bhore family have surrendered their rights in the land and hence your appellant has paid an amount of Rs. 10,00,000/- to them. Some of the persons receiving the amount have filed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: "The assessee has claimed expenditure on transfer which includes the payments made for surrender of rights. The assessee was asked to file evidence in support of the claim and also confirmation from the parties regarding actual receipt of the amount by them. Nothing was mentioned in the copy of sathekhat, purchase deed and a deed for surrender of right about the payments to be made to the persons having interest in the property being daughters and sisters. On the contrary in the Affidavit filed alongwith surrender deed it has been mentioned that the surrender of right is without any cost. Further the amount if any paid by the assessee is voluntary act and it cannot be claimed as expenditure for transfer. The assessee's claim is therefore, not in order and allowable as an expenditure on transfer. The expenses claimed on this ground are therefore, not allowed." 6.2 The CIT(A) having considered the submissions on behalf of assessee and agreeing with the same, granted relief to the assessee. The same has been opposed on behalf of revenue, inter alia stated that CIT(A) has erred in deleting the addition on account of disallowance of expenses for transfer of land for A.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number, bank name, etc. is given. No proof for payment for taxes on the amount received by the parties have been filed. Therefore the expenses claimed may not be allowed on the strength of affidavits." On perusal of the assessment record it was noticed that the Dy. Director of Investigation, vide letter dated 20.10.2008 has brought to the notice of the Assessing Officer that the assessee has claimed expenditure on account of payment by bank cheques for surrender of rights and accordingly calculated capital gain. The details of bank, cheque number, etc. and the details of the payees have been mentioned by the Dy. Director of Investigation in the said letter. It was mentioned by Dy. Director of Investigation to take necessary action for taxing capital gain in the hands of the payees as they have received consideration by bank cheques. In these circumstances, it was found that the Assessing Officer was not justified in claiming in the remand report that the mode of payment and evidence for actual payment i.e. cheque number, bank name, etc. have not been filed on record at the assessment stage. Considering the fact that the payments were made by bank cheques and the fact that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the revenue has raised almost the similar grounds as in ITA No.1053/PN/2011. 14. The issue No.1 is pertaining to addition of Rs. 24,62,755/- on account of inflated cost of land as on 01.04.1981 for A.Y. 2008-09. Similar issue arose in ITA No.1053/PN/2011 in the case of Shri Santosh Suresh Bhore which was decided in favour of assessee vide para 4 of this order. The assessee being co-owner and facts being similar, so following the same reasoning, we are not inclined to interfere in the finding of CIT(A), who has deleted the addition of Rs. 24,62,755/- made on account of inflated cost of land as on 01.04.1981. We uphold the same. 15. Next issue is with regard to addition of Rs. 54,328/- on account of deduction claimed u/s.54B for A.Y. 2008-09 made u/s.143(3) of I.T. Act. Similar issue arose in ITA No.1053/PN/2011 in the case of Shri Santosh Suresh Bhore which was decided in favour of assessee vide para 5 of this order. The assessee being co-owner and facts being similar, so following the same reasoning, we are not inclined to interfere in the finding of CIT(A), who has deleted the addition of Rs. 54,328/- made on account of disallowance of deduction claimed u/s.54B of I.T. Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
