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TMI Blog2022 (8) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee from Kulgaon-Badlapur Municipal Council (KBMC) as compensation on compulsory acquisition of assessee s agricultural land - lower authorities have rejected the contention that the said short term capital gain was exempt under section 10(37) - HELD THAT:- Ingredients of the provision manifest that the land which is transferred should have been used for agricultural purpose two years immediately preceding the date of transfer and that the acquisition by the government bodies should have been compulsory acquisition. In the present case in hand, the assessee has failed to produce any documentary evidence to show that the land was used for agricultural purpose nor has he proved that the acquisition was compulsory. The assessee has also failed to prove the same before us as well as before the lower authorities. We do not find any justification in holding that the assessee is eligible for exemption as per the provisions of section 10(37) - Therefore, we do not find any infirmity in the decision of the lower authorities. The grounds raised by the assessee is dismissed. AO adopting the assessable value of land over value of stamp duty - cost of acquisition of TDR received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 09/08/2011 and 13/09/2011. The assessee owned 10,000 sq.mtrs of TDRs by virtue of this transfer. It was observed that the assessee has sold TDR of 2,684.74 sq.mtrs in assessment year 2013-14 for a total consideration of Rs.1,41,62,000/-. It was alleged that the assessee failed to offer the same for short term capital gain for the impugned land. The Assessing Officer had stated that upon perusal of the certificate of transfer of development rights issued by KBMC vide KBMC/TPP/TDS/155 dated 30/09/2011 for land vide survey No.57, H.No 10/2 at Katrak, Badlapur, the land which was transferred was not classified as an agricultural land. The Assessing Officer alleged that the assessee has not disclosed the sale of the said TDR and upon reason to believe that the income has escaped assessment as per provisions of section 147 of the I.T. Act. The Assessing Officer made addition of Rs.1,24,97,449/- as short term capital gain rejecting the claim of the assessee that the same was exempt from tax under section 10(37). The Assessing Officer had made the said addition on the ground that the assessee had acquired 10,000 sq.mtrs of TDR on 30/09/2011 for a consideration of Rs.62 lakhs out of whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer has erred in passing the assessment order on the deceased person. In this case, during assessment proceeding, assessee was alive, notices were served on him and he replied, but before passing of the order, assessee has passed away. So it is not the case that notices have not been served on assessee. This ground of appeal warrants no merit and is hereby dismissed. 10. On the merits of the case, it is evident that the assessee has acquired the TDRs of 10,000 sq.mtrs against surrender of land to KBMC dated 30/09/2011 for which no capital gain tax was attracted. It was only on the subsequent sale of the said TDR that the lower authorities have made the addition on short term capital gain tax for the impugned assessment year. We find no absurdity in charging of short term capital gain on the sale consideration of TDR. With regard to the issue pertaining to applicability of section 10(37) which is reproduced hereunder for ready reference :- 10(37) : An individual or Hindu Undivided Family (HUF) can claim exemption in respect of capital gain arising on transfer of agricultural land situated in an urban area by way of compulsory acquisition. This exemption is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in confirming the disallowance of the appellant's claim for exemption of capital gains on transfer of urban agricultural land allowable u/s. 10(37) of the Act. (b) On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) also erred in holding that the subject land was not agricultural land. (c) On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) also erred in holding that the transfer of the subject land was not by way of 'compulsory acquisition'. Your appellant, therefore, prays that the exemption u/s. 10(37) of the Act be allowed for the aforesaid capital gains. B. Assessment of Short Term Capital Gains on sale of TDR: (a) On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in confirming assessment of short term capital gains of Rs. 1,86,24,724/- on sale of Transferable Development Rights (TOR ). (b) The Ld. CIT(A) failed to appreciate, and ought to have, held that the appellant did not incur any cost to acquire these TDR, and therefore, the resultant capital gain was not chargeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the order dated 22.08.2019passed by the Ld. Commissioner of Income Tax (Appeals)-3, Thane [ Ld. CIT(A) ) u/s 250 of the Income-tax Act, 1961 ( Act ), your appellant prefers this appeal, among others, on the following grounds of appeal, each of which is without prejudice to, and independent of, the other: 1.1 On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in confirming the addition of Rs. 1,49,42,069/- of short-term capital gain on sale of part of Transferable Development Right (TDR'), which the appellant had received from Kulgaon-Badlapur Municipal Council ('KBMC') as compensation on compulsory acquisition of his urban agricultural land. 1.2 On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in rejecting the appellant's contention that the aforesaid gain was exempt u/s. 10(37) of the Act. The Lcl. CIT(A) erred in holding that the subject land was not agricultural land. 1.3 On the facts and in the circumstances of the case, and in law, the Ld. CIT(A) erred in not admitting the crucial additional evidence sought to be produced by the appellant to establish that the subject land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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