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TMI Blog2019 (12) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... en M. Bhandari, Naresh M Bhandari Versus DCIT, Range-2(3), Surat And Shri Ishwarbhai M Patel, Shri Dineshchandra C. Pate, Chanchalben Mohanbhai Bhandari, Shri Ishwarbhai Zinabhai Patel, Shri Gopalbhai H Patel, Amratlal Maganlal Desai Versus ITO, Ward-2(3)(1), Surat Shri Sandeep Gosain, Judicial Member And Shri O.P.Meena, Accoutant Member Assessee by [Smt. Urvashi Shodhan, Advocate], [Purvin Shah, AR], [K. K. Shah, CA], [Shri Sapnesh Sheth, CA], [None] Revenue by Smt. Anupama Singla, Sr.(DR) & Sreenivas T. Bidari, CIT(DR) ORDER PER BENCH: 1. The above captioned appeals by the Assessee are directed against the common order of learned Commissioner of Income tax (Appeals)-1, Surat(in short "the CIT (A)") dated 28.03.2016 pertaining to various Assessment Years as mentioned in above table of cause title. 2. These appeals were heard together as common issue is involved and common appeal order is passed by the CIT (A). We are taking up I.T.A.No.1566/AHD/20116 in the case of Shri Satish M Patel for assessment year 2009-10 as lead case whose finding would mutatis mutandis apply to other cases listed above. 3. The assessee has taken as many as 7 grounds of appeal stating that Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT (A). The CIT (A) observed that the exemption under section 10(37) is available where the assessee has been carrying on agricultural operation during the period of two years immediately preceding from the date of transfer and the land was acquired under compulsory acquisition. The assessee has filed a letter no. TBT/OUT/ 4089 /22 dated. 23.09.2014 and claimed that agricultural block situated at Dindoli Surat was kept under reservation by Government of Gujarat vide notification no. GH/100 of 2004 /DVP/1403/3307 dated. 02.09.2014 and has been acquired under provision of Section 20 of Gujarat Town Planning & Urban Development Act, 1976 and section 77 of Bombay Provincial Municipal Corporation Act, 1949(BPMC) for the public purpose by which it was conveyed that it was a case of compulsory acquisition. The CIT (A) observed that the AO has not debited the fact that the subject land was put under Reservation for Sewage Treatment Plant to erected by the SMC and proceedings for acquisition of land were initiated. However, in the meantime the land owners have entered into negotiation with SMC and sellers agreed to sell the subject land at negotiated price and conveyed their consent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2013 of Hon'ble Gujarat High Court (copy of order placed at Page No. 35 to 40 of Paper Book) wherein it was held that for the purpose of section 10(37) it is not required that the assessee himself should carry out the agricultural operations on the land. The appellant referred Para 8 of said order which states that "In view of the above provisions, as noted, the Revenue contended that the assessee would not be entitled to the exemption since the agricultural land was not cultivated by the assessee himself. We may recall that CIT (Appeals) was himself convinced that such exemption would be available even in case of a land situated in municipal area. But that the other conditions, namely of the cultivation of such land by the assessee would crucial." Thus, it was contended that exemption under section 10(37) would be available even if the land is situated in municipal area and being not cultivated by the assessee himself but by the tenants. The appellant further supported his view that by placing reliance on the order dated 19.11.2015of CIT (A)-II, Surat, in the case of Shri Ramesh B Nagarsheth in I.T.A.No. 1939/Ahd/2015 date 30.08.2018, wherein the tribunal has held the sale of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the market value of the land that was fixed as above. To reiterate his grievance, the appellant, could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs. 38,42,489/-. For this I purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed. The settlement took place only qua the amount of the compensation which was to be received by the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 & 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er no. ACT/SR/3161 dated. 31.08.2010 it has been clearly mentioned by the SMC that nature of payment was "compulsory acquisition" (Land/ Building).It is further seen from the perusal of letter no. TBT/OUT/ 4089/ 22 dated. 23.09.2014that land in question was placed under reservation by the Government of Gujarat vide order dated Notification No. GH/V/100 of 2004/DVP/1403/3307/L dated. 02.09.2014 under the provision of section 20 of Gujarat Town Planning & Urban Development Act 1976 at the disposal of the SMC to acquire the land under section 77 of Bombay Provincial Municipal Corporation Act, 1949 for erection of Sewerage Treatment Plant. Thus, it was a case of compulsory acquisition of land for which the SMC under the instruction of Government of Gujarat for which the SMC has also given a certificate dated 12.08.2010 [letter no. ACT/SR/NO2861] wherein nature of payment to the assessee is described against compulsory acquisition of land at Dindoli. The ITAT- D- Bench, Ahmedabad in the case of ITO v. Dipak Kalidas Pauwala in I.T.A.No.2685/Ahd/2011 dated. 14.08.2015 wherein the Tribunal has held the that said land in Dindoli ( at Block no. 305) was acquired by SMC for sewerage Treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge for determining the compensation and to decide as to whether the compensation fixed by the Land Acquisition Collector was proper or not. However, the matter thereafter is only for quantum of compensation which has nothing to do with the acquisition. It is clear from the above that insofar as acquisition is concerned, the appellant had succumbed to the action taken by the Government in this behalf. His only objection was to the market value of the land that was fixed as above. To reiterate his grievance, the appellant, could have either taken the aforesaid adjudicatory route of seeking reference under Section 18 of the LA Act leaving it to the Court to determine the market value. Instead, the appellant negotiated with Techno Park and arrived at amicable settlement by agreeing to receive the compensation in the sum of Rs. 38,42,489/-. For this I purpose, after entering into the agreement, the appellant agreed to execute the sale deed as well which was a necessary consequence and a step which the appellant had to take. In our view, insofar as acquisition of the land is concerned, the same was compulsorily acquired as the entire procedure prescribed under the LA Act was followed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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