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TMI Blog2025 (3) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. File perused. 4. The only argument advanced by Ld. DR for the department-appellant is that in order to claim deductions u/s 54B of the Act, it was for the assessee to prove before the Assessing Officer that the land sold by him was used by him for agriculture activities for a period of two years immediately preceeding the date of transfer. Further, it has been submitted that when the assessee failed to discharge onus to prove the above said facts, Assessing Officer was justified in declining the claim of the assessee for deduction of Rs. 3,68,49,454/- u/s 54B of the Act. In this regard, Ld. DR has relied on para 3 of the assessment order. Ultimately, Ld. DR has urged that the impugned order passed by Ld. CIT(A) allowing the deductions u/s 54B of the Act and the deleting the addition made by the Assessing Officer, deserves to be set aside. 5. Admittedly, assessee filed return of income for the Assessment Year under consideration declaring total income of Rs. 1,47,87,420/-. It is also not in dispute that case of the assessee was selected for scrutiny under CASS and notice u/s 143(2) of the Act came to be issued, followed by the notices u/s 142(1) and a show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139 in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset: Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the purchase of the new asset within the period specified in sub-section (1), then,- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. 7. Admittedly, during scrutiny proceeding, the assessee produced copy of sale deed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of a school-Saint Marry Higher Secondary, Education Society 's school. As further observed by the Assessing Officer, said school was appurtenant to the land in question. Accordingly, Assessing Officer was of the view that the original asset sold by the assessee was not being used for agriculture activities during a period of two years immediately preceding the date on which the transfer of the land took place. 14. Assessing Officer also observed in sub-para (iv),9 of para 3 of the assessment order that there was no iota of evidence regarding cultivation carried on by the assessee with reference to the nature of crop grown, labourers or any details of the expenditure incurred or products sold. Therefore, the Assessing Officer concluded that the assessee had not fulfilled the conditions stipulated u/s 54B of the Act. 15. When the matter came up in appeal, Ld. CIT(A) took into consideration, the material available on record and concluded that the appellant was eligible for deductions u/s 54B of the Act. Ld. CIT(A) arrived at the said conclusion by observing at page No. 15 and 16 as under:- "The submissions of the appellant have also been perused. The primary document i.e. the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being classified as agricultural land in the revenue records, the land was actually used for agricultural purposes at the relevant time and the user of land was not temporary in nature. The case laws cited by the Ld. AO in the assessment order are clearly distinguishable on facts. Here reliance is placed on the order of Hon'ble ITAT in the case of Murtuza Shabbir Jamnagarwala Vs. Income Tax Officer Ward-4(5), Pune [2019] 175 ITD 494 (Pune-Trib.) wherein it has been stated that:- "...........Land sold by assessee was classified in revenue record as agricultural land and was subjected to land revenue and, further, land was being cultivated on which jowar crop was grown, land transferred by assessee was an 'agricultural land and capital gain arising from sale of such land was eligible for exemption under section......." In view of the facts and the circumstances as stated above, the appellant is eligible for deduction u/s 54B, the disallowance and the addition made by the Ld. AO amounting to Rs. 3,68,49,454/- are hereby deleted. The ground of appeal No. 1 is allowed. ". 16. As regards agricultural activities and grant of benefit of provisions of section 54B, Learned AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to sell the land for housing purposes, the applying and obtaining the permission to sell the land for non-agricultural purposes under section 63 of the Bombay Tenancy and Agricultural Lands Act and its sale soon thereafter and the fact that the land was not cultivated for a period of our years prior to its sale coupled with its location, the price at which it was sold do outweigh the circumstances appearing in favour of the appellant's case. The aforesaid facts do establish that the land was not an agricultural land when it was sold. The appellant had no intention to bring it under cultivation at any time after 1965-66, certainly now after they entered into the agreement to sell the same to a Housing Cooperative Society. Though a formal permission under section 65 of the Land Revenue Court was not obtained by the appellants, yet their intention is clear from the fact of their application for permission to sell it for a non-agreement under section 63 of the Bombay Tenancy and Agricultural Act." Copy of Khasra Girdawari for the period Samvat 2074 to 2077, pertaining to Village Todi Ramijipura, Luniyawas, Jagatpura, Jaipur, has been made available to us in the course of argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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