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TMI Blog2019 (11) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... art of 15.35 ares (about42 cents) of land owned by the assessee in sy.no. 186/7. Jurisdiction for setting aside the order of the AO by invoking revisionary power u/s 263 of the Act could not be assumed by the Commissioner of Income-tax (CIT) in this case. This is because the issues considered by the CIT for directing to conduct further inquiries in this respect were subject matter of inquiry by the AO and the AO had accepted the assessee s contentions and formed a possible view in light of the facts of the case. The Tribunal in the case of K Rajendran Vs ITO Ward [ 2017 (7) TMI 1337 - ITAT COCHIN] had held on the basis of certificate of Agriculture Officer that 4.4 ares of land acquired for Trivandrum air port was agriculture land in which agriculture operation was carried out till the date of acquisition and, therefore, the capital gains arising from the transfer was exempt u/s 10(37) of the Act. Further, in the case of ITO, Ward 2(1) Tvm v. G.S.Lekha [ 2019 (4) TMI 1783 - ITAT COCHIN] Cochin Bench of the Tribunal (order dated 29.03.2019), on identical facts, held that assessee was entitled to deduction u/s 10(37) of the I.T.Act. Order of the CIT passed u/s 263 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA Mathew Joseph of Cochin to file the Appeal before the Honorable ITAT against the CIT(A) order confirming the order of the assessing officer dated 18/01/2016. 5. The appeal against this before the Honorable Tribunal ought to have been filed on or before 17th May, 2015. The non filing was noticed only during the first week of February,2019. 6. There is a delay of three years and 277 days which was caused due to the above fact and there was no willful negligence on my part. 7. The above appeal is filed on valid grounds decided in our favour by various High Courts. In case the delay of three Years and 277 days is not condoned and the appeal taken to records, it will cause irreparable harm, loss and injury to me. Hence it is humbly submitted in the interest of justice that the delay of three years and 277 days caused in filing the appeal may please be condoned. 3.1 The assessee has also enclosed an affidavit of the earlier Chartered Accountant, Sri.Sunod Kumar. The relevant portion of the affidavit filed by the earlier CA reads as follow:- I, CA Sunid kumar, aged 46, S/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble High Court condoned the delay in filing the appeal and directed the ITAT to consider the issue on merits. In the case considered by the Hon ble High Court, the reason stated for condonation of delay was identical to the reasons stated in this case for condonation of delay, namely, assessee was under the bonafides impression that he needs to file an appeal only against the assessment order giving effect to the 263 order and later realising that an appeal needs to be filed as against 263 order, an appeal was filed belatedly and hence prayed for the condonation of delay. In the instant case, the assessee was given legal advice that he needs to file an appeal only against the assessment order giving effect to the 263 order and on receipt of the correct legal advice this appeal was filed belatedly, against 263 order. Therefore, in the light of affidavit of the assessee and his earlier Chartered Accountant and the judgment of the Hon ble High Court, we condone the delay of filing this appeal before the Tribunal and proceed to dispose of the appeal on merits. 4. Brief facts of the case are as follows: The assessee is an individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-2009, the assessee had failed to prove that it has been utilized for agricultural purposes immediately preceding the date of compulsorily acquisition. The CIT referred to the survey number in the official website of Registration Department of the State of Kerala and concluded that the impugned land was a residential property and hence no exemption can be granted on the basis of a certificate issued by the Agricultural Officer. Accordingly, the objections raised by the assessee during the course of revisionary proceedings were rejected and order was passed u/s 263 of the I.T.Act directing the Assessing Officer to re-examine the issue of allowing exemption u/s 10(37) of the I.T.Act. 7. Aggrieved by the order of the CIT passed u/s 263 of the I.T.Act, the assessee has filed this appeal before the Tribunal. The learned Counsel submitted that the show cause notice u/s 263 of the I.T.Act was issued for the following reasons:- (i) While allowing the exemption the AO had failed to notice that the acquired property was not situated in an area referred to item (a) or item (b) of sub clause (iii) of clause (14) of section 2 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee, the land acquired is an agricultural land and the same being compulsorily acquired, was exempted from long term capital gain u/s 10(37) of the I.T.Act. In the revisionary order passed u/s 263 of the I.T.Act, the CIT set aside the reassessment order directing the A.O. to consider the claim of exemption u/s 10(37) of the I.T.Act, afresh. According to the CIT, it cannot be said that the impugned land is an agricultural land and agricultural operation was carried on prior to its acquisition. Therefore, the only matter to be examined is whether the impugned land is an agricultural land or not or any agricultural operation was carried on the land prior to the date of its acquisition. In the assessment order passed by the AO u/s 143(3) r.w.s. 148 of the I.T.Act it has been held that the property acquired is agricultural land in which the assessee had carried out agricultural operation till the date of acquisition in 2007-08. This assessment order was set aside by the CIT. The CIT was of the view that the following mistakes in the aforesaid finding of the AO. (i) The land situated in the survey number was described as residential plots without vehicular access ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of space for further cultivation. The activities carried out in such situations are cleaning the area, removal of grass and shrubs, apply manure, water etc and plucking and colleting the crops. All these activities amount to agricultural activities and are being carried out by the assessee for so many years immediately preceding the date of transfer. A copy of the Report of the Spl. Tahsildar (L.A) in LAC No 15/05 dated 03/04/2007 is placed on record. 8.3 The assessing officer had made local enquiries during the course of assessment proceedings to know whether the land was used for agricultural purpose before the date of transfer and satisfied himself about its utilisation of agriculture purpose and this fact was mentioned in the order. The assessment was reopened in 2012 where as the transfer took place in 2007. The only possible method which can be adopted at the time of assessment other than the certificate of the Agriculture Officer to see whether the land was used for agricultural purpose, is to conduct local enquiries. Such enquiry was conducted by the AO as evident from the assessment order. 8.4 The land in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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