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TMI Blog2017 (11) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not sought relief under this provision of the law. Therefore, have no alternative but to confirm the findings recorded by the ld. CIT(A) while dismissing this ground of appeal. However, in the case of Surendra Singh, it was claimed that the Stamp Duty Authority has determined the value at ₹ 25,29,641/- while the Assessing Officer has taken it at ₹ 26,02,211/-. The relief shall be granted to that extent, which is apparently a mistake in adopting the value. Disallowing claim of Dalali payment and the fencing expenses incurred - Held that:- Admittedly, the assessee has not produced any evidence before the authorities below in support of the claim of payment of Dalali as well as claim of expenditure incurred on fencing. No expenditure can be allowed without any supporting documents. Therefore CIT(A) has rightly sustained the addition of disallowing the expenditure in the form of payment of Dalali and making of fencings in both these cases. - ITA No. 302/JP/2017 And ITA No. 303/JP/2017 - - - Dated:- 10-11-2017 - SHRI BHAGCHAND, ACCOUNTANT MEMBER For The Assessee : Shri P.C. Parwal (CA) For The Revenue : Smt. Poonam Roy (DCIT) ORDER P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, therefore, the same were heard together and for the sake of convenience and brevity, a common order is being passed. 3. The brief facts of the case are that the both these assessees have sold 1.73 hectare of agricultural land located at village Bhugore, Tehsil- Alwar, comprising of Khasra No. 886, 887 and 890. Shri Virendra Singh has sold his share for ₹ 26.95 lacs and Shri Surendra Singh has sold his share at ₹ 23,89,250/-. Both these assessees computed long term capital gain on sale of their agricultural land at Nil after claiming deduction U/s 54B of the Income Tax Act, 1961 (in short the Act). During the assessment proceedings, the Assessing Officer observed that the agriculture was being carried over in Khasra No. 887 measuring 1.10 hectare. However, no agriculture activities were carried out in Khasra No. 886 measuring 0.01 hectare and Khasra No. 890 measuring 0.62 hectare. The Assessing Officer reduced the claim of deduction U/s 54B of the Act. In the case of Virendra Singh the claim U/s 54B was reduced by ₹ 9,01,322/- and in the case of Surendra Singh, it was reduced by ₹ 8,05,540/-. 4. In the ground No.1, the issue is against partly disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- ( i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil; or ( ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be reduced, by the amount of the capital gain. ( 2) The amount of the capital gain which is not utilised by the assessee for the purchase of the new asset before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the IT Act. Since, in this case the assessee has purchase the eligible asset on 27-04-2012 (date of transfer of land Khasra No. 887 - 02-02-2011) which is within the time period allowed as per section 54B(1) of the Act, the deduction is allowed as per Hon ble ITAT, Jaipur Bench confirmed by Hon ble Rajasthan High Court on similar issue is assessee own case for AY 2010-11. Accordingly, deduction u/s 54B of the Act for the eligible land is allowed. Point No. 2 ;- I have considered above mentioned point no. 2 and surrounding facts. On the factual matrix and legal conditions as provided under the Income Tax Act, the AO has rightly disallowed part of land sold (Khasara No. 890 and 886) in the year under consideration as mandatory condition under section 54B of the Act was not fulfilled by the appellant. Point No. 3:- I have already discussed in detail issues involved in point no. 3 in para 6 below while adjudicating ground of appeal no. 1(b) and held the action of the AO justified. 5.3.3 It has also been noticed that the appellant had sold part of land of value ₹ 19,65,091/- on 21/04/2010 whereas the investment in agricultural land was made for his share at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DLC value of land as sale consideration as per the stamp duty paid on the sale of the land. The appellant has cited various judgments in support of his claim that since the difference between actual sale consideration and DLC rate is less than 10% hence as per various court judgments, the actual sale consideration should be taken to calculate capital gain. I have considered the judgments cited. In all such cases the dispute was between the valuation made by DVO and the sale consideration. Here, the valuation was not made by DVO but the rate taken for the purpose of stamp duty was taken as deemed sale consideration as per the provision of Section 50C(1) of the Act. Therefore, in the present case, the facts of the case is different from those adjudicated by the court judgments cited by the appellant. Therefore on factual matrix of the case, it is my considered view that the A.O has rightly taken the consideration at ₹ 29,32,789/- as against actual sale consideration of ₹ 26,95,500/-. Accordingly, A.O s contention in this regard is sustained and the appellant s ground of appeal is dismissed. 9. After hearing both the sides on this issue and considering the case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Assessing Officer on the claim of expenditure in both these cases for the reasons that the assessees have failed to give any evidence even during the appellate proceedings. 11. The ld AR of the assessee while pleading on this issue has submitted as under: 1. The assessee while computing the capital gain claimed deduction on account of dalali payment of ₹ 75,000/-. The assessee further claimed that he incurred expenditure of ₹ 2.10,000/- on fencing of the agricultural land purchased by it to protect the crops from theft and harm from animals. The same is rejected by AO for want of evidence. The ld. CIT(A) confirmed the order of AO. 2. It is submitted that before the lower authorities, AO could not submit the evidence but it is a known fact that without payment of commission the land cannot be sold. Further, in respect of expenditure incurred on fencing of agricultural land, the AO could have made spot verification. Therefore, considering the entirety of the facts, the expenditure claimed be directed to be allowed. 12. On the other hand, the ld DR has relied on the orders of the authorities below. 13. I have heard both the sides on this issu ..... 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