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TMI Blog2022 (4) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to "the Act") for the Assessment Year (A.Y.) 2010-11 & 2011-12 respectively. ITA No. 358/Rjt/2015 (A.Y. 2010-11):- 2. The grounds of appeal raised by the Revenue are as under: "1. The ld. CIT(A) has erred on fact and in law in appreciating the factual and legal matrix for the addition made of Rs. 2,90,08,640/- on account of long term capital gain. 2. The ld. CIT (A) has erred on facts and in law in holding that agricultural activities were carried out on the impugned sold land, whereas, it is seen from the form No. 12 issued by the Deputy Mamlatdar that no agricultural activities were carried out. 3. The ld. CIT(A) has ignored the evidence highlighted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 20,90,00,000/-. Out of which an amount of Rs. 12.15 crores were paid before the filing of return on 15.10.2010. While filing of return the assessee declared total income of Rs. 73,25,860/- including the claim of exemption of Rs. 2,90,08,646/- under Section 54B of the Act in respect to long term capital gain derived on sale of the aforesaid agricultural land. The Ld. AO finalized the proceeding rejecting such claim made by the assessee under Section 54B which was, in turn, allowed by the Ld. CIT(A). Hence, the instant appeal before us. 6. We have heard the relevant submissions made by the respective parties, we have also carefully considered the materials available on record before us. 7. Upon perusal of the order passed by the Ld. AO i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural activity was carried out. The abstract produced by the Talati shows "no information in the earlier years". However the Talati further admitted that way back on 19.08.2004 and 09.08.2004 the Collector of Rajkot has classified the said land as agricultural land and the same is also made available in the Revenue records. Needless to mention that we have further verified the relevant document mention above as annexed to the Paper Book. It is found that the Talati has given a statement based on incorrect and incomplete information available with him. In fact, statement has given by the Talati based on his personal visit during the assessment proceeding i.e. after 3 years from the end of the Assessment Year when the land was sold out. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination and whose findings are not mentioned in the assessment order. Hence, it is held that the land in question was put to agricultural use." 10. The further question cropped up before the Ld. AO was as to whether the advance payment made by the assessee which is more than the capital gain tantamount to purchase of the property. According to the Ld. AO the appellant must either purchase the new asset before the due date of filing of return or shall deposit the amount of the capital gain in any bank or institution. Against the said contention of the Ld. AO the assessee submitted that since the assessee opted for purchase of new asset and he was entitled to purchase the new asset within a period of two years after the date of transfer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re booked first and then purchased, the above Circular No 672 of the CBDT clarifies that, if any amount out of net sale consideration of the original asset is paid, this should be considered under the terms 'purchase / construct'. It is not disputed that the appellant had not made payment towards advance for purchase of the property for the purpose of section 54B. Although the above clarification is for section 54F, but the analogy of the same can be used here in the instant case. Besides, the decisions relied upon by the ld. AR has also substantial force and the facts therein are similar to the facts and circumstances of the present case. Hence, the advance payment made by the appellant to purchase agricultural land from the sale p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances therein. Hence, advance payment by the appellant to purchase agricultural land from the sale proceed of the land sold by him has been rightly found eligible for benefit under Section 54B of the Act by the Ld. CIT(A) without any ambiguity so as to warrant interference. Once the main issue is decided in favour of the assessee consideration of the third limb relating to deposit of capital gain amount has become nugatory. The Revenue's appeal is, therefore, dismissed. ITA No. 497/Rjt/2015 (A.Y. 2011-12):- 13. The identical issue involved in the case has already been dealt with by us in ITA No. 358/Rjt/2015 for A.Y. 2010-1 and in the absence of any changed circumstances the same shall apply mutatis mutandis. Hence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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