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TMI Blog2020 (3) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... o because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition, from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down ever, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory. Accordingly, the assessee is eligible for exemption under section 10(37) of the Act. Consequently, the AO is directed to allow exemption under section 10(37) - Decided in favour of assessee. - I.T.A No.1021/AHD/2016 - - - Dated:- 3-2-2020 - Shri Sandeep Gosain, Judicial Member And Shri O.P. Meena, Accoutant Member For the Assessee : Shri Mehul R. Shah, CA For the Revenue : Mrs. Anupama Singla, Sr.D.R. ORDER PER O. P. MEENA, AM: 1. This appeal by the Assessee is directed against the order of learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al are being considered together as common ground for the sake of convenience and brevity. 4. Brief facts are that the assessee along with other co-owners has sold immovable property on 29.09.2008 for ₹ 3,80,40,000 in which assessee`s share was 1/3rd which worked out to ₹ 1,26,80,000.. Therefore, the AO has considered the long-term capital gain accrued in A.Y. 2009-10. The filed original return of income on 31.03.2012. A notice under section 148 of the Act was issued. The assessee replied the original return of income filed may be treated as filed in response to notice under section 148 of the Act of the Act. The assessee has claimed that land was compulsory acquisition by SMC hence, thereon is exempt under section 10(37) of the Act. However, the AO opined that agricultural land was actually purchased by the SMC and not compulsory acquired, because land was sold by executing sale deed between SMC and owners of the land. The AO therefore, held that by choosing route through execution of sale deed the assessee has forgone the choice / option for going through compulsory acquisition route which is eligible for exemption under section 10(37) of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Corporation Act, 1949, the SMC is not competent to make compulsory acquisition and it only competent to make recommendation to government. Therefore, the assessee has neither done agricultural operations before two years nor the case if of compulsory acquisition hence, the assessee is held to be not entitled for exemption under section 10(37) of the Act. 6. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that the agricultural land was compulsory acquired by the SMC under section 77 of BPMC Act and who had full power and authority given by the Central Government for acquisition of immovable property and was declared trustee custodian of the said acquired property. The appellant has referred the letter no.TBT/OUT/4089/22 dated. 23.09.2014 by which the land was placed under reservation under Government of Gujarat vide Notification No. GH/V/100 of 2004/DVP/1403/3307/L dated. 02.09.2014 as reproduced by the CIT (A) in his appellate order. The appellant further relied on the letter No. ACT/SR/NO.286 dated 12.08.2010 from SMC wherein it has been clearly mentioned the TDS certificate dated 11.04.2008 bearing cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Development Plan shall be deemed to be meaning for public purpose within the meaning of Land Acquisition Act , 1894 (I of 1894) and eligible for exemption under section 10(37) of the Act. This decision of Tribunal was also confirmed by the Hon`ble Jurisdictional High Court of Gujarat in [ Tax Appeal No. 249 of 2016 dated 28.03.2016] . 7. The learned counsel for the assessee further relied in the case of Balakrishnan v. Union of India Others [ Civil Appeal No. 1607/2010 dated 11.01.2017 wherein it was held as under: It is in the aforesaid factual backdrop, this Court is to determine as to whether it can be treated that the land of the appellant was compulsorily acquired. From the facts mentioned above, it becomes apparent that the initiated by invoking the provisions of LA Act by the State Government. For this purpose, not only Notification under Section 4 was issued, it was followed by declaration under Section 6 and even Award under Section 9 of the LA Act. With the award the acquisition under the LA Act was completed. Only thing that remains thereafter was to pay the compensation as fixed under the award and take possession of the land in question from the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies/land owners. Nonetheless, the character of acquisition remains compulsory. 8. Per contra, the ld. Sr. D.R. relied on the order of the lower authorities and contended that execution of sale deed with SMC. Does not amount to compulsory acquisition. Further, the sale was voluntary and not under compulsory acquisition as the SMC does not have power to acquire land under compulsory acquisition unless approval of statement government is taken. Hence, CIT (A) was right to confirming the action of the AO in disallowing the exemption. 9. We have heard the rival submissions and perused the relevant material on record. We find that the AO has disallowed the claim under section 10(37) of the Act on the ground that the assessee has sold the land voluntarily, and it is not case of compulsory acquisition of land by SMC. Hence, conditions of section 10(37) of the Act are not satisfied. The Hon ble Gujarat High Court in the case of CIT v. Amaratbhai S. Patel [Tax Appeal No. 355 of 2013] (copy of order filed and placed on record) 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, respectfully following the decision of Coordinate Bench in the case of ITO v. Dipak Kalidas [I.T.A.No. 2685/Ahd/2011 dated. 14.08.2015 (PB-26-34) which has been confirmed by the Hon`ble Jurisdictional High Court of Gujarat in Tax Appeal No. 249/ 2016 dated. 28.03.2016(PB- 19-25), we hold that the land in question was compulsory acquisition by the SMC under the direction of Government of Gujarat. Hence, conditions stipulated in section 10(37) is satisfied. In view of above facts and circumstances, land was compulsory acquired by SMC, hence, conditions as laid down in section 10(37) are duly satisfied. Reliance is placed on the judgements of Hon ble Gujarat High Court in the case of CIT v. Amrutbhai S. Patel Tax Appeal No. 355 of 2013 dated 15.04.2013 of Hon ble Gujarat High Court ( copy of order placed at Page No. 35 to 40 of Paper Book). Similarly, Hon`ble Supreme Court in the case of Balakrishnan v. Union of India Others[ Civil Appeal No. 1607/2010 dated 11.01.2017 held that: It is in the aforesaid factual backdrop, this Court is to determine as to whether it can be treated that the land of the appellant was compulsorily acquired. From the facts mentioned above, it becom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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