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TMI Blog2018 (6) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... me declaring income of ₹ 1,45,142/-. The assessee declared long term capital gains at ₹ 1,33,769/- from sale of land Khata No.573, Khasara No. 1234, measuring 2970 sq. mtr situated in Village Ruza Yakubpur, Pargana Tehsil Dadri, District Gautam Budh Nagar and income from other sources at ₹ 11,373/-. The case was selected for scrutiny. Finlay, the assessment was completed by assessing long term capital gains at ₹ 33,81,514/- by taking sale value adopted at ₹ 44,60,000/- under section 50C as against taken by assessee at ₹ 11 lakhs. 2.1 Aggrieved from the assessment order, the assessee filed an appeal before the Ld. CIT(A) and thereafter, ITAT. The case was adjudicated by ITAT, Delhi, C-Bench and the operative portion of the order is reproduced in the assessment order in which the matter in issue was restored to the file of A.O. to consider the evidence brought on record and take a view, Whether land sold was agriculture or not. If the land sold was agricultural land within the meaning of provisions of Section 2(14)(iii) of the Act, then, question of invoking provisions of Section does not arise. In view of these directions of the Tribunal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor was confronted to the assessee vide notice under section 142(1) of the Act as reproduced in the assessment order in which it was brought to the notice of the assessee that no crops were grown during the years 2005 to 2007 and the impugned land is situated within the distance of 10 K.M. from the Headquarters of Noida Authority and Greater Noida Authority as reported by Tehsildar, Dadri. It was also brought to the notice of assessee that as per report of PWD, G.B. Nagar, Village Roza Yakubpur, which falls within the limits of Greater Noida Authority and the same is situated within the distance of 5.2 KM from the municipal limits of Ghaziabad Nagar Nigam. The report of the Income Tax Inspector reveal that the distance between the impugned land and the Income Tax Office, Ghaziabad via motorable road is 9.0 KM, which strengthen the above two reports. Meaning thereby, the land in question falls in the area not being more than 8.0 KM from the local limits of Ghaziabad. Nagar Nigam. It was also brought to the notice of the assessee that since no crop was grown during the years 2005 to 2007, therefore, the character of the impugned land was not agricultural land but residential, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the location of the land. The assessee filed affidavit and return for A.Ys. 2005-06 and 2006-07 showing agricultural income. It is pointed-out that the land sold originally to the assessee was for agricultural purposes. The assessee also moved petition under Rule 46A of the I.T. Rules for admission of the affidavit of the assessee and copies of the returns for A.Ys. 2005-06 and 2006-07. The Ld. CIT(A), however, rejected the application of assessee for admission of additional evidences and did not admit these additional evidences. The Ld. CIT(A) considering the explanation of assessee and material on record noted in his findings that the ITAT, Delhi Bench, restored the matter back to the A.O. with a direction to examine whether the land sold during the year under consideration by assessee was agricultural land, within the meaning of Section 2(14)(iii) or not. The A.O. gave an opportunity to the assessee to prove that the land in question is agricultural land and confronted all the material collected by him during the course of assessment proceedings. However, the assessee did not explain the same. The matter was examined by various authorities and land in question was found w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uated at Dadri District, Gautam Budh Nagar. The assessee claimed it to be agricultural land. In the first round of proceedings, the Tribunal has restored the matter to the file of the A.O. to consider the evidence produced on record and take a view whether the land sold is agricultural or not. It is well settled law that in set aside proceedings, the A.O. shall have to confine himself to the issue remanded to him i.e., whether the impugned land is agricultural land or not. The Hon'ble Supreme Court in the case of Smt. Sarifabibi Mohmed Ibrahim v. CIT [1993] 204 ITR 631 held as under : The appellants were co-owners of a plot of land inherited from an ancestor through their father. On March 15, 1967, they agreed to sell the land to a housing co-operative society and, to enable them to complete the transaction, they applied in June, 1968, and March, 1969, for permission to transfer the land for a non-agricultural purpose and the permission was granted in April, 1969. A number of sale deeds were executed in May, 1969, and the purchasing society applied for conversion of the land to non- agricultural purposes, viz., construction of buildings. The question was whether the profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, the test for determining whether the impugned land is agriculture bear mainly on the nature or character of the land, and not merely on the actual user or non-user at a particular point of time. If the land is not actually appropriated for agricultural purposes, the minimal requirement is that it should be set apart for being used for agricultural purposes and should be such as could reasonably be so used without alteration of its character, entries in the revenue records being prima facie, but not conclusive evidence. In order to qualify for exemption, it is not enough that the land was once agricultural land, it must be agricultural land at the time of sale. The A.O. collected several evidences at assessment stage and confronted the same to the assessee seeking explanation as to how assessee claimed the impugned land as agricultural land. However, assessee did not file any explanation before A.O. and whatever documents were confronted to the assessee have not been rebutted by the assessee. Therefore, the material evidence collected by the A.O. at assessment stage clearly prove that no crops grown during F.Ys. 2005-06 to 2006-07 in the impugned land. Meaning thereby, prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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