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TMI Blog2015 (7) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to Purchase was prior to that date and the assessee did not get possession of the same, therefore claim of assessee not found justified. The assessee, however, explained the reasons why the possession could not be taken because the seller has not turned up for handing over possession to the assessee or for completion of the sale. The case law relied upon by the assessee support the case of the assessee that it may be a case of transfer under compelling reasons and the ld. CIT(Appeals) also without giving any reasons for decision, rejected the claim of assessee. Similarly, assessee also failed to explain that agreement to sell was executed in name of Baljit Singh and litigation is also in name of Baljit Singh and assessee has to correlate all facts.. We, accordingly, set aside the order of authorities below and restore this issue to the file of Assessing Officer with direction to re-decide the matter in issue by giving specific finding of fact in the assessment order - Decided partly in favour of assessee for statistical purposes. - ITA No. 330/CHD/2014 - - - Dated:- 7-7-2015 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations of similar type of land, took average value of the land in 1981 at ₹ 1835/- per kanal. Thus, the cost of acquisition was computed by the Assessing Officer at ₹ 4,63,129/- and capital gain was computed at ₹ 1,50,56,871/-. The claim of assessee of exemption under section 54B for making deposit in the bank and for investment in land was also disallowed. 5. The assessee challenged the order of the Assessing Officer before ld. CIT(Appeals) and challenged re-opening of the assessment under section 148 of the Income Tax Act on the ground that due date of filing of the return was 15.10.2010, therefore notice under section 148 of the Act issued before that date was not valid. The ld. CIT(Appeals) found that assessee has concocted the story of business activity on which no documentary evidence was filed. Initially assessee claimed he was mere agriculturist and land in question falls outside the municipal limit. In the absence of any evidence on record to support claim of assessee of business activities, ld. CIT(Appeals) was of the view that there is no illegality in issuing the notice under section 148 of the Act. The assessee also challenged the jurisdiction but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that capital gains on sale of land has escaped assessment. The facts and circumstances clearly show that Assessing Officer was justified in recording reasons for re-opening of the assessment and issuing notice against the assessee. During the course of arguments, ld. counsel for the assessee did not argue on this ground and have not contributed anything to challenge the findings of the authorities below for initiating the proceedings under section 148 of the Act. In the absence of any challenge to the re-opening of the assessment under section 148 of the Act, this ground of appeal of the assessee is dismissed. 10. As regards the claim of assessee for exemption under section 54B of the Act, it would be relevant to reproduce Section 54B of the Income Tax Act as under : 54B. [(1)] [Subject to the provisions of sub-section (2), where the capital gain arises] from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by [the assessee being an individual or his parent, or a Hindu undivided family] for agricultural purposes [(hereinafter referred to as the original asset)], and the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. 11. The assessee claimed that he has deposited ₹ 50 lacs with Punjab National Bank under Capital Gain Accounts Scheme on 14.10.2010. Copy of the same is filed at page 73 of the Paper Book. The authorities below denied the claim of assessee on the reason that the amount with Punjab National Bank was not deposited in the scheme before filing of the Income Tax Return under section 139(1) i.e. 31.07.2010. However, it is a fact that the assessee filed return of income on 05.10.2010. Hon'ble jurisdictional Punjab Haryana High Court in the case of CIT Vs Ms. Jagrity Aggarwal 339 ITR 610 held as under : Sub-s. (4 of s. 139 is in fact, a proviso to sub-s. (1) and provides for extension of period of due date for filing the return in certain circumstances and, therefore, exemption under s. 54 was allowable where the assessee had purchased new property before the extended due date of filing o return as per s. 139(4) and filed return within such extended time. 12. From the facts of the case in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific performance against sellers and the PB-88 is the Restraint Order passed by the Civil Judge against the seller from transferring, alienating or mortgaging the property in question. The ld. counsel for the assessee, therefore, submitted that since assessee made investment in the property within time and agreement to sell was executed on 22.09.2009 for sale to Asian Educational Society, therefore, this should be considered from the date of agreement to sell dated 22.09.2009. He has relied upon decision of the Hon'ble Supreme Court in this case of Shri Sanjeev Lal etc. Vs CIT 365 ITR 389 (S.C) in which it was held as under : Where the assessee's entered into agreement to sell residential house on 27.12.2002 and received earnest money, and had also purchased other residential house within one year, however could execute sale deed only on 24.09.2004 on account of litigation and restrain order passed by Court, the assesses were entitled to relief u/s 54 in respect of long term capital gain which they had earned in pursuance of transfer of their residential property and used for purchase of a new asset/residential house. 14. He has also relied upon decision of Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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