9911796707
TMI Blog2021 (10) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. S.O.46/P.A.-2/1900/S.5/70 dated 11.02.1970 reveals that it was in force for 25 years w.e.f. 11.12.1970 hence, the period of its operation came to an end way back in the year 1995. No. other notification is brought to our notice by the Revenue. Hence, reliance made by the AO on this notification is not justified, coupled with the fact that land notified in that Circular did not include the land under dispute. AO observed that the sale receipts for the sale of agricultural produce were nothing but an arrangement to make a false claim that land was an agricultural land - no evidence is placed on record to substantiate this observation. Undisputedly, no material is placed before us except the statement of one Shri Hemant Chauhan stating that no agricultural activity was carried out by him. It is pointed by the Ld. Senior Counsel for the assessee that statement of Shri Hemant Chauhan pertains to earlier assessment year which is not relevant for the present proceedings. We at this juncture cannot set the clock back and find out by making on spot inspection whether agricultural activity is being carried out or not. We have no option but to adjudicate the issue purely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer - Respectfully following the judgment in the case of Smt. Sarifabibi Mohmed Ibrahim [ 1993 (9) TMI 10 - SUPREME COURT] and SIDDHARTH J. DESAI [ 1981 (9) TMI 48 - GUJARAT HIGH COURT] held character of land being agriculture did not change by mentioning in revenue records as 'Ghair Mumkin'. We therefore hereby, direct the Assessing Officer to delete the addition. - Decided in favour of assessee. - ITA Nos. 5312, 5313/Del/2014, 5360, 5361/Del/2014, 1766/Del/2017, 5294/Del/2014, 1765/Del/2017, 5362, 5363/Del/2014, 1767/Del/2017, 5377, 5378/Del/2014, 5314, 5315/Del/2014, 5364/Del/2014, 5375/Del/2014 and 5390/Del/2014 - - - Dated:- 30-9-2021 - G.S. Pannu, President And Kul Bharat, Member (J) For the Appellant : Salil Aggarwal, Sr. Adv., Shailesh Gupta and Madhur Aggarwal, Advs. For the Respondents : Sunita Singh, CIT, D.R. ORDER Per Kul Bharat, JM This bunch of 17 appeals filed by the different assessees was taken up for hearing. Since identical issues are involved in all these appeals, these appeals are being disposed off by way of a consolidated order. We take up ITA No. 5313/Del/2014 pertaining to Assessment Year 2010-11 as a lead case, as ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable opportunity of being heard 1.9 The learned Commissioner of Income Tax(A) has failed to appreciate the fact that order of the Commissioner and Divisional Commissioner, Gurgaon division dated 29/03/2010, 23/0412010 relied upon (while dismissing the appeal) has been passed by the revenue authority after the date of transfer of land by the assessee. 1.10 The learned Commissioner of Income Tax(A) has also erred in justifying the action of the assessing officer regarding the levy of the interest and initiating the penalty proceeding U/s. 271(1)(c) of the Income Tax Act. 1.11 The appellant may-be permitted to add, alter or amend any of the foregoing grounds of appeal. 3. Further, an application seeking filing of additional ground was made on behalf of the assessee. The Additional ground of the assessee's appeal reads as under:- That the assessment order passed by learned Assessing Officer is without jurisdiction and void-ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction. FACTS 4. The facts giving r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,32,08,282/- as the capital gain arising of this transaction. 5. Aggrieved against this, the assessee preferred an appeal before Ld. CIT(A), who after considering the submissions and material placed before her, sustained the addition. The ld. CIT(A) while sustaining the addition relied on certain observation made by the Land Revenue Authorities in consolidation proceedings. 6. Aggrieved against this, the assessee is in appeal before this Tribunal. 7. The solitary ground on merit in this case is against the action of the Assessing Officer for making addition of ₹ 2,32,08,282/- as capital gain arising out of sale of piece of land measuring 40 Bighas, 1 Biswa situated in the revenue area of Village Rojka Gujar, Distt.-Sohna, Haryana. 7.1. Dispute:-As per the assessee, the land in question was an agricultural land. The assessee has been carrying out agricultural operations and earning agricultural income therefrom. Therefore, the said land did not fall within the definition of capital assets as defined u/s. 2(14) of the Act. As per the Assessing Officer, the land in question was GAIR MUMKIN PAHAR as described in the Sale Deed being a barren land therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishwa was Banjar Kadim and 7810 Bigha 10 Bishwa was Gair Mumkin Pahar. As against this, the Jama Bandi, known as Parat Partwar, and available with the Patwari, showed land of 9895 Bigha 1 Bishwa, which was excess by 847 Bigha 4 Bishwa. The Divisional Commissioner, Gurgaon also noted that the revenue estate of Rojka Gujar was not inhabited, and that there were 'only two types of land', namely, Banjar Kadim and Gair Mumkin Pahar, and clearly there were 'interpolations in the record of rights' (Jama Bandit. He stated: 'This type of fraud is never heard in the revenue administration. The Revenue Officers such as Circle Revenue Officers and Patwaris are the custodian of the case, the Revenue Officers have acted not as a custodian of record of rights but they have misused their position by incorporating the unlawful and illegal entries in the Jama Bandi, i.e., record of rights.' He also noted: 'While preparing the scheme of consolidation it has been mentioned at sr. No. 1 of the scheme of consolidation that in order to nullify the effect of excess area measuring 874 Bigha 4 Bishwa, a proportionate cut will be imposed on all the owners. By doing so the Consolid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commissioner, Gurgaon and the letter of the Tehsildar, Sohna - that documented the nature of land at village Rojka Gujar as rocky (Gair Mumkin Pahar) and barren (Banjar Kadim); use of these lands for common purposes only; unidentifiable shares making physical possession by owners impossible; and unlawful and illegal entries in the record of rights (Jama Bandi) incorporated by revenue officers while carrying out the process of consolidation - the documents relied by the appellant are untrustworthy. Therefore, no credence can be placed on the Khasra Girdwari, Chak bandi and mutation documents filed by the appellant as 'evidences' in the paper book. 7.7. Even the copy of the electricity bills in the name of Bhupinder Kumar, cited as evidence of agricultural operations by the appellant, by themselves do not establish the claims of the appellant, particularly when the original and genuine revenue records do not record any such endeavour on those lands. As noted earlier, agricultural operations were not possible on the lands of Rojka Gujar. Even till March 2011, when the Tehsildar, Sohna wrote to the Addl. DIT (Inv), Delhi, the process of consolidation had not been resume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n village Rojka Gujar and also that the entries in the documents such as the record of rights, mutation deed, Girdwari, relied by the appellant, were fraudulent interpolations or outcomes of fraud. Therefore, the entire 'documentary evidences' filed by the appellant lose evidentiary value. Moreover, since the companies of the Sekhri group hold agricultural and farm lands elsewhere in Haryana and deal in agricultural products, ownership of tractor, purchase of seeds, fertilizer and hardware, sale of produce in Mandi etc is not surprising. But mere existence of these items/transactions does not establish that agricultural operations were being carried out on the lands held by the appellant in the village Rojka Gujar. 7.12. The muster roll of labour, that refers to 'labour' for 'safai', 'khudai' and 'gaurd' ('guard'), copies of which were filed before the AO towards the end of the proceedings on 13.03.2013, along with a claim that 'agricultural activities' were carried out on the lands at Rojka Gujar by making 'payments to 'Guru Farms Nurseries', are evidently make-believe assertions. No. detail was provided ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the land of products which have some utility either for consumption or for trade and commerce, it will be seen that the term agriculture receives a wider interpretation both in regard to its operations as well as the results of the same. Nevertheless there Is present all throughout the basic idea that there must be at the bottom of It cultivation of land in the sense of tilling of the land, sowing of the seeds, planting, and similar work done on the land itself. This basic conception is the essential sine qua non of any operation performed on the land constituting agricultural operation. If the basic operations are there, the rest of the operations found themselves upon the same. But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations. (emphasis supplied). The appellant did not provide any detail whatsoever relating to basic operations, such as tilling, sowing, irrigation, harvesting etc, being performed on the lands owned by her at village Rojka Gujar, As held by the Privy Council in Raja Musthafa Alikhan v. CIT 16 ITR 330 (PC) it was the appellant's burden to prove that exempt agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality but its actual condition and intended user which has to be seen for purposes of exemption, (c) The person claiming an exemption of any property of his from the scope of his assets must satisfy the conditions of the exemption , (d) The determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case , (e) The fact that the land is assessed to the Land Revenue as agricultural land under the State Revenue Law is certainly a relevant fact but it is not conclusive. In para 12 of their decision, the Hon'ble Supreme Court referred to the decision of the Gujarat High Court in the case of CIT v. Siddharth J Desai [1983] 139 ITR 628 (Guj), where 13 factors/indicators had been evolved to determine whether land was agricultural or not. The 13 factors approved by the Apex Court were the following: (1) Whether the land was classified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a property yielding agricultural produce on the basis of its yield? The Hon'ble Court went on to state: At the risk of repetition, we may mention that not all of these factors would be present or absent in any case and that in each case one or more of those factors may make appearance and that the ultimate decision will have to be reached on a balanced consideration of the totality of circumstances. Referring to the case of CIT v. VA Trivedi [1988] 172 ITR 95 (Born), which had considered the question again, their Lordships noted that the Bombay High Court had 'observed that to ascertain the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the relevant date and further whether on the relevant date the land was intended to be put to use for agricultural purposes for a reasonable span of time in the future'. 7.15. The facts of the case at hand are: Lands of village Rojka Gujar, which is an uninhabited village on the outskirts of Faridabad and falls in the Aravalli hills, are categorized as Gair Mumkin Pahar or Banjar Kadim. In the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its order dated 29/3/2012, in the case of Anil Kumar Bhatia 24 Taxman.com 98 (Delhi) where, their lordships held: Para 18 ..... Under Section 153A and the new scheme provided for, the AO is required to exercise the normal assessment powers in respect of the previous year in which the search took place. Para 19....Another significant feature of this Section is that the Assessing Officer is empowered to assess or reassess the total income of the aforesaid years. This is a significant departure from the earlier block assessment scheme ... Under Section 153A, however, the Assessing Officer has been given the power to assess or reassess the 'total income' of the six assessment years in question in separate assessment orders. Para 20 .... With all the stops having been pulled out, the Assessing Officer under Section 153A has been entrusted with the duty of bringing to tax the total income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. (emphasis supplied) In the case of CIT v. Chetan Dass Lachman Dass 25 Taxman.com 227 (Delhi), their lordships held: Para 11 ... Section 153A which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Kumar Bhatia (supra) and Chetan Doss Lachman Dass (supra), a harmonious interpretation of section 153A with all these provisions would lead to the inevitable conclusion that the AO is required to assess the total income in cases where notice u/s. 153A or 153C has been issued. While determining the total income of a person u/s. 153A therefore, the entire economic/financial matters pertaining to the year under consideration will have to be considered by the AO, whether or not these are relatable to the search. For these reasons therefore, the submissions of the appellant are rejected. In any case, the addition made by the AO is based on the post search inquiry with reference to the land at village Rojka Gujar, some documents of which were found during search. 7.18. Thus, in view of the discussion above, the orders of the Commissioner, Gurgaon Division and the Divisional Commissioner, Gurgaon establish beyond doubt that no agricultural operations could have been performed on the lands at village Rojka Gujar were ownership was joint and not identifiable and the soil was rocky and barren. They also reveal that fraud was committed and interpolations were made by the local revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of return of income 29.03.2011 iv) Assessment u/s. 153A or 143(3) Date of order 28.03.2013 Income assessed 2,37,59,545/- v) Order of CIT(A) Date of order 07.07.2014 Findings Dismissed 3. That it is submitted that during the impugned assessment year, the assessee had sold its agricultural land located at Rojka Gujjar, Sohna Road for a consideration of ₹ 2,10,54,465/- and the same was claimed as exempt under section 2(14)(iii) of the Act being agricultural land and situated at beyond 8 kms from the nearest municipality. However, the learned AO denied the aforesaid exemption by holding that the said land is not cultivable and is rocky terrain , and the same is not an agricultural land, in doing so, the learned AO relied on following documents: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, which was issued on 19/11/2012 which means that the proceeding in the case of the assessee have been started after 19/11/2012. Thus, it is clear that aforesaid documents so quoted in the assessment order has not been issued/recorded by the Assessing officer but by the Investigation wing of the department. As such, it is clear that the assessing officer has made no application of the mind nor any investigation or enquiry was ever conducted by lower authorities. The orders so passed are merely copy and paste of observations of the Investigation wing in the appraisal report. Thus, reliance is placed on the following judgments on the proposition that, when no investigation has been carried out by the learned Assessing Officer and as such the burden which lay upon the learned A.O. has not been discharged, as such, the addition so made is unsustainable and deserves to be deleted. a) 149 TTJ 165 ITAT (TM) Vishnu Jaiswal vs. CIT b) [2013] 357 ITR 146 (Del) CIT vs. Fair Finvest Ltd. c) [2014]361 ITR 10 (Del) CIT h. Gangeshwari Metal (P.) Ltd. d) ITA No. 871/D/2010 A.Y. 2003-04 dated 25.05.2012 ITO vs. M/s. Excellence Town Planner (P) Ltd. e) ITA No. 1125/D/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts:- i) Physical possession was not with the assessee as the consolidation has been done ii) No. crops were ever shown on the basis of land records iii) The land is Gair Mumkin Pahar and is a rocky land iv) No. plantation cutting of trees, grazing of animal are permissible on this land. 3.5. It is submitted that findings so recorded by learned AO on the basis of aforesaid documents were rebutted by the assessee-appellant before learned CIT(A), however, she ignored the relevant submissions and documents and recorded her findings on mere assumptions and surmises and merely recorded the same findings as were recorded by learned Assessing Officer. As such, in the impugned appeal, the assessee-appellant begs to make its submissions in brief against the findings so recorded by lower authorities, which are as below:- i) Physical possession was not with the assessee as the consolidation has not been done The learned assessing officer and CIT(A) have observed that as per the letter of the Tehsildar, Land at Village Roj Ka Gujjar Distt Sohna (Haryana) is a joint account (SHAMIL KHATA) land and though the shares of the owners are definite but the owners ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that page No. 26, Annexure A-5, party No. R-1, of the documents seized during the Course of search (the copy in respect of the same is enclosed at page No. 165 of PH-I. These documents are the actual site photographs of the land at Rozka Gujjar taken on 26.03.2007. In the photographs it is clearly visible that the land is properly developed with barbed fencing. Further the temporary huts built for the labour on the land also support the fact that the physical possession was with the assessee. However, all the aforesaid documentary evidences were blatantly ignored by both learned AO and CIT(A) and they based their findings solely on the basis of Investigation report, without conducting any enquiry or investigation of their own and without even rebutting the documentary evidences so furnished by the assessee-appellant. ii) No. crops were Sown on land on the basis of land records The findings so recorded by learned AO and CIT(A) that no crops were ever sown on the land is clearly against the facts in view of the following submissions. That during course of search voluminous documents were seized and page No. 105-106 of the party No. R-1, Annexure A-5, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adduced by the department to controvert this contention. iii) The land at Rojka Gujjar is Gair Mumkin Pahar That the learned AO while passing the impugned order has mentioned that the land at Rojka Gujjar is Gair Mumkin Pahar and is rocky terrain. These findings so recorded by learned AO are based on sale deed so submitted by assessee during the course of assessment proceedings (kindly see pages 154 to 156 of the PH-I). In doing so, the lower authorities have failed to appreciate the basis fact that the word used in the sale deed is simply a nomenclature, which has been used to identify this area, however, if look at the facts and the material available on record, as is submitted in earlier paragraphs, it becomes apparently clear that agricultural activities were undertaken by assessee during the impugned assessment year. It is further submitted that page No. 26, Annexure A-5, party No. R-I, of the document-, seized during the course of search (the copy in respect of the same is enclosed at page No. 165 of PB - I), clearly shows the actual site photographs (If the land at Rozka Gujjar taken on 26/03/2007. In the photographs it is clearly visible that the land i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of circular was 11/02/1970) and as such the above mentioned circular was valid upto 11/02/1995 (i.e. upto 25 years from 11/02/1970). In view of the facts discussed above the circular quoted by the assessing officer is not applicable for the year under appeal. That further, from the perusal of the above circular it is also important to point out that this circular was applicable in the area specified by the forest department. In this connection attention is drawn to the list of villages with Killas/Khasra Numbers (the list so issued by the forest department is enclosed at page Nos. 160 to 164 of Paper Book-1). The list so issued by the forest department does not bear the khasra no of the land sold by the assessee in village Rojka Gujjar. Thus, the aforesaid circular so relied by lower authorities, is not applicable on the facts of the case of assessee-appellant. v) That in addition to the aforesaid submissions, the assessee-appellant would like to discuss the authenticity or applicability of the various documents/statements as relied by the Assessing Officer in the assessment order:- Reply of the summon from the Tehsildar, Sohna The Tehsildar Sohna has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by assessee since involves consideration of identical issues and in view of our aforesaid submissions the appeal of the assessee-appellant be allowed and relief be granted to the assessee-appellant. 7.4. Submissions on behalf of the Revenue:-Ld. CIT DR vehemently opposed the submissions of the assessee and supported the orders of the authorities below. Ld. CIT DR submitted that so far the question of agricultural land is concerned, the Land Revenue authorities have stated in response to the letters issued by the Assessing Officer that the land in question is a barren land and no agricultural activity was permissible on the land. Further, Ld. CIT DR submitted that Ld. CIT(A) has categorically recorded the findings of Commissioner who is competent authority under land revenue authorities of the concerned State. It has been categorically held that no consolidation proceedings were completed. Ld. CIT DR further submitted that as per order dated 23.04.2010, the Divisional Commissioner, Gurgaon recorded that the Settlement Officer (Consolidation) cum District Revenue Officer, Gurgaon had reported that the Jama Bandi, known as Parat Sarkar, and kept in Sadar Record Room, showed la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of law i.e. sections 2(1A) and 2(14) of the Act, are reproduced as under:- Section 2(1A) (1A) agricultural income means-- (a) any rent or revenue derived from land which is situated in India and is used for agricultural purposes; (b) any income derived from such land by-- (i) agriculture; or (ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market; or (iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in paragraph (ii) of this sub-clause; (c) any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator or the receiver of rent-in-kind, of any land with respect to which, or the produce of which, any process mentioned in paragraphs (ii) and (iii) of sub-clause (b) is carried on: Provided that-- (i) the building is on or in the immediate vicinity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) of the proviso to sub-clause (c), population means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year. Section 2(14) 2(14) capital asset means--(a) property of any kind held by an assessee, whether or not connected with his business or profession; (b) any securities held by a Foreign Institutional Investor which has invested in such securities in accordance with the regulations made under the Securities and Exchange Board of India Act, 1992 (15 of 1992); but does not include-- (i) any stock-in-trade [other than the securities referred to in sub-clause (b)], consumable stores or raw materials held for the purposes of his business or profession; (ii) personal effects, that is to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, but excludes-- (a) jewellery; (b) archaeological collections; (c) drawings; (d) paintings; (e) sculptures; or (f) any work of art. Explanation 1.--For the purposes of this sub-clause, jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Scheme, 2015 notified by the Central Government. Explanation.--For the removal of doubts, it is hereby clarified that property includes and shall be deemed to have always included any rights in or in relation to an Indian company, including rights of management or control or any other rights whatsoever. 9. Hence, as per Section 2(14) of the Act the land should not be situated in the area as mentioned therein. Admittedly, the land does not fall within any of the area as mentioned in Section 2(14). In the opinion of the Authorities below the basic agricultural operations were not carried out and no such activity was permissible. It was stated by the Assessing Officer that the land being Gair Mumkin Pahar i.e. banjar land, no agricultural operations could be carried out and permitted by law. A great stress was laid on the notification No. S.O.46/P.A.-2/1900/S.5/70 dated 11.02.1970 which reads as under:- No. S.O.45/P.A.-2/1900/S.5/70-Whereas certain areas mentioned in the Schedule annexed hereto are comprised within the limits of the local areas notified under section 3 of the Punjab Land Preservation Act, 1900 with erstwhile Punjab Government notification No. 9419-D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 4 5 Gurgaon Gurgaon Rojka Gujar H.B.No.172 - 1 to 44, 45 min, 46 min, 55 min, 56, 57, 58 min, 62 to 65, 66 min, 69 min, 70 to 76 2617 10. A bare reading of the notification reveals that it was in force for 25 years w.e.f. 11.12.1970 hence, the period of its operation came to an end way back in the year 1995. No. other notification is brought to our notice by the Revenue. Hence, reliance made by the Assessing Officer on this notification is not justified, coupled with the fact that land notified in that Circular did not include the land under dispute. Further, the Assessing Officer observed that the sale receipts for the sale of agricultural produce were nothing but an arrangement to make a false claim that land was an agricultural land. However, no evidence is placed on record to substantiate this observation. Undisputedly, no material is placed before us except the statement of one Shri Hemant Chauhan stating that no agricultural activity was carried out by him. It is pointed by the Ld. Senior Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to land in question ought to have been made. Undisputedly, we are concerned with the taxability of sale consideration, it is not the case of the Revenue that sale consideration was not out of transfer of capital asset. The Assessing Officer unequivocally has treated the same as capital asset. The case of the assessee is that sale consideration cannot be subjected to tax since the land was being used for agricultural purpose. In support of this claim, the assessee furnished the evidences in the form of entries in revenue records, photographs and proof of sale of agricultural produce. These evidences have been rejected on the ground that (a) the consolidation was not completed; (b) Sale Deed describes land as Gair Mumkin Pahar ; and (c) the adverse observation by the land revenue authorities regarding consolidation proceeding and entries recorded by the Consolidation Officer. Ld. Senior Counsel for the assessee has placed reliance on various case laws to buttress the contention that mere nomenclature in the Sale Deed or in the revenue records as barren land does not make the land non-agricultural. It is contended that such nomenclature would not change the character and category o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuing it as a property yielding agricultural produce on the basis of its yield? 13. In the case in hand, admittedly it has been recorded by the Revenue official that certain crop was grown by the assessee. The assessee has also placed on record, certain evidences proving the sale of agricultural produces. These two evidences proved that prior to transfer of the land in question was being used for the agricultural purposes. The Revenue could not rebut the evidences filed by the assessee. The only basis of non-acceptance of the assessee's plea was that the land was part of notification which was issued by the Forest authorities wherein the plantation etc. were prohibited. As discussed above that the said notification remained in force till the year 1995. Moreover, Ld. Counsel for the assessee pointed out that the land in question was not part of 1970 notification. This contention is not rebutted by the Revenue. The Revenue has not brought any other notification to our notice which has superseded the 1920 notification by further extending the period. The Assessing Officer did not make any enquiry from the Village as well as from other land owners of the surrounding areas. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. The question that has arisen in this case is whether it makes any difference if the owner happens to be a person who has bought the agricultural land with the object of cavorting it into urban plots. Before such plots have been carved out and steps taken for developing the same, the land was acquired by the Government. This means that the land retained its agricultural characteristics and the compensation would still be compensation paid for agricultural land. Let us say a person buys an agricultural land with a view to selling it on profit. The net profit would not be taxable as a business receipt because it would be a profit out of agricultural land. It would be a kind of capital gain exempt from taxation. This is approximately the reasoning in the previous case. So, we would answer the first question on the footing that the compensation amount is not taxable as a profit from business. 16. It is necessary to mention here that capital gains are taxable on the transfer of a capital asset, but the definition of capital asset excludes agricultural land as per section 2(14)(iii). As the character of this land remained agricultural land, the gain would not be taxable. It is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and kept opened. 17. In the result, the appeal of the assessee is partly allowed. 18. Now, we take up ITA No. 5312/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in considering the agriculture income of ₹ 22,018/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandis to the identical grounds raised in this year as well. 20. In the result, the appeal of the assessee is partly allowed. 21. Now, we take up ITA No. 5360/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in considering the agriculture income of ₹ 86,000/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances have been pointed by the Revenue. We, therefore taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 23. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction. Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 24. In the result, the appeal of the assessee is partly allowed. 25. Now, we take up ITA No. 5361/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so erred in justifying the action of the Assessing Officer regarding the levy of the interest and initiating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal. 25.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 25.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 26. We have considered the rival submissions of the parties and also perused the material available on record. We find that no change into facts and circumstances have been pointed by the Revenue. We, therefore taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 27. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the learned Commissioner of Income Tax (Appeals) has erre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed. 32. Now, we take up ITA No. 5294/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of ₹ 2,34,12,500/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of ₹ 1,01,640/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 34. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in overlooking the basic fact that no incriminating material was found during the course of search and the assessment as contemplated under section 153A is not a denovo assessment and as such the additions so made by assessing officer which are beyond the scope of assessment under section 153A of the Act and are liable to be deleted in totality. Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 35. In the result, the appeal of the assessee is partly allowed. 36. Now, we take up ITA No. 1765/Del/2017 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1. The order of the learned Assessing officer is arbi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually used, ordinarily used for agriculture and it is not relevant whether the agriculture operation is permissible or not. 1.6 The order of the learned Commissioner of Income Tax(A) shows lack of application of mind as the Assessing officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income Tax(A) has also failed to appreciate the fact that in the documents seized during the course of search khatuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of ₹ 2,23,03,125/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of ₹ 29,410/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 45. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in overlooking the basic fact that no incriminating material was found during the course of search and the assessment as contemplated under section 153A is not a denovo assessment and as such the additions so made by assessing officer which are beyond the scope of assessment under section 153A of the Act and are liable to be deleted in totality. Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 46. In the result, the appeal of the assessee is partly allowed. 47. Now, we take up ITA No. 1767/Del/2017 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1. The order of the learned Assessing officer is arbitrary, against law and facts on record. 2. The learned Commissioner of Income Tax(A) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually used, ordinarily used for agriculture and it is not relevant whether the agriculture operation is permissible or not. 1.6 The order of the learned Commissioner of Income Tax(A) shows lack of application of mind as the Assessing officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income Tax(A) has also failed to appreciate the fact that in the documents seized during the course of search khatuani showing the cultivation of Bazra in this area was found which clearly shows these lands are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually used, ordinarily used for agriculture and it is not relevant whether the agriculture operation is permissible or not. 1.6 The order of the learned Commissioner of Income Tax(A) shows lack of application of mind as the Assessing officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photograp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 56. In the result, the appeal of the assessee is partly allowed. 57. Now, we take up ITA No. 5314/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in considering the agriculture income of ₹ 1,36,680/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 59. In the result, the appeal of the assessee is partly allowed. 60. Now, we take up ITA No. 5315/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of ₹ 1,96,58,868/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of ₹ 86,960/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 61. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 62. In the result, the appeal of the assessee is partly allowed. 63. Now, we take up ITA No. 5364/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of ₹ 6,26,562/- in respect of capital gain earned on transfer of agriculture land during the year without going through the facts, details as well as documentary evidence filed during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 63.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 64. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 65. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction. Since we have deleted the addition on merit, this ground has become o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment Year 2010-11) [supra]. 68. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 69. In the result, the appeal of the assessee is partly allowed. 70. Now, we take up ITA No. 5390/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of ₹ 9,01,250/- in respect of capital gain earned on transfer of agriculture land during the year without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 relating to Assessment Year 2010-11. 70.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 71. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 72. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction. Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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