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TMI Blog2018 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 km away from Thasil Palwal, and therefore 2nd reason for reopening of assessment is again based upon a contrary view. Intention to use a particular piece of land for non agricultural purposes cannot by itself alter character of the land in question. Authorities below has not been able to dispute that during financial year relevant to assessment year under consideration, as per revenue records land in question has been shown as “KHUD KHAST” and without any basis or material evidence rejects these Government records by holding it to be an mechanical entry. No additions - reassessment is not valid - Decided in favor of assessee. - ITA No. 1125/Del/2015 - - - Dated:- 9-8-2018 - SH. N. K. BILLAIYA , ACCOUNTANT MEMBER AND SMT. BEENA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom assessment order passed in case of Smt.Chaya Sinha, claim of exemption of capital gains tax was denied as assessing officer therein was of the opinion that alleged agricultural land sold during the year was not capital asset, under the definition in section 2 (14) of the Act. 3. Accordingly notice under section 148 of the Act was issued on 22/03/13 to assessee, in response to which it was submitted by assessee to consider return filed on 19/03/07 u/s.139(9) of the Act, as return filed in response to notice. From the return so filed, Ld. AO observed that assessee sold alleged agricultural land and claimed that it is not a capital asset under section 2 (14) of the Act and therefore profit arising thereon amounting to ₹ 62,18,41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.AO placed reliance upon report of Inspector which was obtained in case of Smt.Chaya Sinha dated 11/11/11. In the report Inspector reported that the entire area is an industrial hub and therefore was not used for agricultural purposes on the date when it was sold by assessee prior to 3 to 4 years. 6. Ld.AO passed assessment order under section 143(3) read with section 147 of the Act, taxing 50% of the capital gain on sale of land as short term capital gain, following assessment order passed in case of Smt.Chaya Sinha. 7. Aggrieved by order of Ld.AO, assessee preferred appeal before Ld.CIT (A) challenging issue of reopening, as well as merit of addition. Ld.CIT(A) upheld action of reopening of assessment and dismissed grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held reopening to be bad in law, by holding that there was no reasons to believe of escapement of any income. 12. On the contrary Ld. Sr.DR submitted that reopening is based on information collected by Inspector during assessment proceedings of Smt.Chaya Sinha. He submitted that Inspectors report clearly shows, that there was no agricultural income, which is substantiated by return of income, wherein no agricultural income has been declared by assessee. Further Ld.Sr.DR submitted that land was purchased and sold within a short period of 10 months time, which further substantiates revenue stand that assessee could not have started cultivating on alleged agricultural land in this short period. Placing reliance upon statement of Sh.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate bench of this Tribunal in the case of co-owner, it is observed that on similar facts, reopening has been quashed by observing there was no reason to believe for reopening the assessment. This Tribunal therein observed that: 18. In the present case, the reasons disclose that the assessing officer reached the belief that there was escapement of income on going through the return of income filed by the assessee after the accepted the return under section 143 (1) without scrutiny, and nothing more. There is nothing but a review of the earlier proceedings and and abuse of power by the assessing officer both strongly deprecated by the Supreme Court in CIT versus Kelvinator (supra). The reasons recorded by the assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of Smt.Chaya Sinha, specifically states that alleged agricultural land is situated 11 km away from Thasil Palwal, and therefore 2nd reason for reopening of assessment is again based upon a contrary view. 16. In the context of statement recorded of Sh. Pawan Kumar, husband of Smt.Chaya Sinha regarding no cultivation has taken place on alleged agricultural land during holding period and subsequently having being sold in a short span of 10 months, we observe that intention to use a particular piece of land for non agricultural purposes cannot by itself alter character of the land in question. What is to be seen is nature of land as on the date it was acquired. It is observed from letter dated 13/03/06 issued by Thesildar, Palwa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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