9911796707
TMI Blog2012 (3) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... O on account of short term capital general in nature and does not require any adjudication. On sale of land on which the assessee had already claimed exemption u/s 54B and subsequently the assessee had also sold the new asset within thirty six months of its purchase. 2. The appellant craves to add or amend the ground of appeal on or before the appeal is heard and disposed off. 3. It is prayed that the order of the ld. CIT(A) be set aside and that of the AO be restored. 3. We have carefully perused the rival submissions, facts of the case and relevant record. In this case, the assessee sold his agricultural land at Sanour on 16.2.2006 for ₹ 18,03,522/-. During the financial year 2003-04 relevant to AY 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in consonance with the expressed provisions of the Act and, hence, cannot be sustained. In view of this, the findings of the ld. CIT(A) are upheld. Relevant portion of the findings of the ld. CIT(A) are reproduced hereunder: 16.4 I have considered the submissions of the ld 'AR'. During the year the assessee has sold land at Sanour on 16.2.2006 for ₹ 18,03,522/- and computed the capital loss of ₹ 1,88,450/- as noted in the assessment order. During the financial year 2003-04 relevant to the AY 2004-05 the ae sold 7 bigha 5 biswas agricultural land for ₹ 28.00 lakhs and claimed deduction u/s 54B of the Act as the assessee purchased new agricultural land at Sanour. However, the assessee has sold the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid notification dated 9.11.93. Foremost conditions for levy of capital gain tax is that an asset should be a capital asset as per provisions of Income tax Act which is not the case with this land or at least AO has not controverted the AR s above submission in this regard with proper legal provisions of the Act and evidence. 16.6 In view of the above and also in view of the decision of Hon'ble ITAT in the case of ITO V. Khazan Singh, Sangrur in ITA No. 53/Chd/2005, I am of the opinion that the aforesaid land cannot be termed as a capital asset6 and therefore cannot be subjected to capital gain tax even through as per provisions of section 54B its cost is taken at Nil. Accordingly addition of ₹ 18,03,522/- is de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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