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TMI Blog2024 (11) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ence placed on record by the assessee before the ld. CIT(A). Considering that peculiar aspect of the matter we deem it fit to remand the matter to the file of the ld. AO who will considered the factual aspect of the matter as raised by the assessee after due verification of the facts and charge the correct income in hands of the assessee after affording due opportunity to the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. AO. Restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute. - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri Deepak Sharma (C.A.) For the Revenue : Smt. Anoop Singh (Addl.CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by the assessee aggrieved from the order of the, Ld. CIT(A), National Faceless Appeal Centre, Delhi [for short CIT(A)/NFAC ] dated 29.11.2023 for the assessment year 2012-13, which in turn arise from the order dated 28.12.2019 passed under section 144/147 of the Income Tax Act,1961 [ for short Act ] by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest charged be deleted in full. 6. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. 2.2 The assessee has also filed additional ground which read as under:- 1. The impugned order passed on dated 28.12.2019 is bad in law, void and without jurisdiction, as the same is not in conformity with CBDT Circular No. 19/2019 dated 14- 08-2019. Hence, the impugned assessment framed u/s 147/144 of the Act dated 28.12.2019 is liable to be quashed. 2. The impugned order passed on dated 28.12.2019 is bad in law, void and without jurisdiction, as the same is passed without issuing the mandatory notice u/s 143(2) of the act. Hence, the impugned assessment framed u/s 147/144 of the Act dated 28.12.2019 is liable to be quashed. 3. The fact as culled out from the record is that the assessee has filed his original return of income for the year under consideration on 09.10.2013 declaring total income of Rs. 2,16,330/-. Further as per information available with revenue that during the year under consideration Shri Chotu Ram father of assessee sold two immovable properties situated at village Bindayka, Jaipur fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that the deduction u/s 54B of the Act has been claimed for Rs. 90,67,650/-. The assessee shown to have purchased the following properties on which deduction was claimed:- S. No. Land purchased on Purchase amount 1. 28.05.2012 9,45,200/- 2. 16.04.2012 18,74,450/- 3. 09.05.2012 62,50,000/- The assessee has furnished copies of the purchase deed in respect of properties mentioned at Sr. No 1 2 above in table. However, the assessee failed to furnish the copy of purchase deed in respect of property mentioned at Sr. No. 3 for Rs. 62,50,000/-. Hence, the assessee failed to discharge the onus laid upon him to furnish the true and correct evidence in support of his claim. Thus, the amount of Rs. 62,50,000/- being the deduction claimed u/s 54B of the Act, was not considered. 3.1 The ld. AO noted that the assessee purchased new asset, land in the name of her wife Smt. Geeta Devi of Rs. 18,72,450/-. The assessee cited decision of Mahadev Balai Vs ITO (2018) 402 ITR 117 (Raj)(HC). The reference made by the assessee was carefully examined and not found squarely applicable in the case of the assessee as held by the ld. AO. A careful reading of the provisions of section 54B lay down the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree different pieces of land; and deduction u/s. 54F of the I.T. Act of Rs. 20,60,000/-; Rs. 166,230 /- was offered as taxable LTCG. The AO however only allowed the deduction of Rs. 20,60,000/- claimed u/s 54F of the Act, on the basis of the documents submitted by the appellant. 7.2 The assessee has shown to have purchased the following properties on which deduction u/s. 54B to the tune of Rs. 90,67,650/- was claimed: S. No. Land purchased on Purchase amount 1. 28.05.2012 9,45,200/- 2. 16.04.2012 18,74,450/- 3. 09.05.2012 62,50,000/- 90,67,650/- The deduction claimed u/s 54B of the Act was denied by the AO for the primary reason that the appellant failed to substantiate that the land sold by the appellant was used for agricultural purposes or that the land acquired thereafter was being used for agriculture purposes. Thus the basic condition laid down in the section 548 of the Income Tax Act 961 was not fulfilled by the appellant. 7.3 The AO further noticed that out of the three pieces of land purchased by the appellant he failed to furnish the copy of purchase deed in respect of property mentioned at serial number 3 and further the land mentioned at serial number 2 was in fact pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se laws, notably CIT vs Satya Dev Sharma (2017) 251 Taxman 31(Raj), wherein it was held that: Capital gains- Agricultural land-Scope and application of CBDT notification No. 9447 dated 6th Jan, 1994 under s. 2(14)(ii) (b) Tribunal was justified in law in holding that agriculture land sold by the assessee is not a capital asset under s 2(14)(iii) (b) as it was situated beyond 8Kms, from the municipal limits on the date of issue of Notification No. 9447 dated 6th Jan., 1994 despite the fact that the land was undisputedly situated within 8 kms from the municipal limit on the date of sale 7.7 The case laws filed by the appellant are considered and the undersigned is also conscious of the fact that the issue, that the distance of 8 kms from the municipality limits is to be reckoned with date of issue of Notification No. 9447 dated 6/01/1994 and not on the date of sale, is settled by the Hon'ble Jurisdictional High Court. However, in the case of ITO vs Kheti Lal Sharma in ITA No. 103/JP/2012. on which reliance is placed by the appellant to assert that the matter is a covered matter, there is an undisputed submission made by the assessee in case of Kheti Lal Sharma, that his land was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciding whether the AO was correct in denying exemption u/s 548 of the Act, it may be noted that section 54B lays down the following conditions: 1. The transferred capital asset must be land 2. The assessee transferring land must be an individual or HUF 3. In the two years immediately preceding the date of transfer, the land was used by the assess being an individual All his parents were by HUF for agricultural purposes. 4. Within a period of two years after the date of transfer of the asset, the assessee should have purchased any other land for being used for agricultural purposes. 5. Where the capital gain is not utilized in the purchase of the new land before furnishing the ROI it should be deposited in an account under the capital gains account scheme before the due date for furnishing the ROI and proof of such deposits should be furnished along with the return. 8.1 In the appellant's case, since the original asset, being land, has been held to be a capital asset, the first condition stands fulfilled. The ownership of the land being held with an individual is also not disputed by the AO. 8.2 The AO has however mentioned that the assessee has not furnished any evidence to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring hearing of the appeal, the ld. AR of the assessee referring to page 7 in para 7.10 of the order of the ld. CIT(A) wherein it is categorically evident that the assessee submitted all the relevant evidence to support the contention for deduction so claimed. The ld. CIT(A) has not considered the submission of the assessee merely the same was filed after 3 and half year passed time after filling the appeal by the assessee but in fact the same was filed before the appeal finally decided. The issue of the fact that the land is taxed in the hands of the mother of the assessee has also not been discussed or decided. Therefore, this being the facts which are required to be adjudicated and in the interest of justice the ld. AR of the assessee prayed to considered while dealing with the appeal so filed. The ld. AR for the assessee prayed that the matter be remanded back to the file of the Assessing Officer to decide all the issues that are raised. 7. Per contra, the ld. DR supported the order of the lower authorities and submitted that the assessee did not cooperate before the Assessing Officer and has not filed required details. Even the assessee though filed an appeal before the ld. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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