TMI Blog2020 (8) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of two assessees who are on same footing, having common source of income germinating from same transaction. We find merit in the grounds raised by the assesse/appellant and direct the Assessing Officer to delete the addition qua sale of agriculture land, being exempt from tax. - Decided in favour of assessee. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - ITA NO.1067/MUM/2017, ITA NO.443/MUM/2017 - - - Dated:- 5-6-2020 - Shri Vikas Awasthy, Judicial Member And Shri Rajesh Kumar, Accountant Member For the Appellant : Shri Jehangir D. Mistri, Sr.Advocate For the Respondent : Shri S.K. Jain Ms. Kavita Kaushik ORDER PER VIKAS AWASTHY, JM: These two appeals by two assessees (related to each other) for assessment year 2012-13 emanates from same transaction of sale of land and have identical facts, therefore, these appeals are taken up together for adjudication and are deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as long term capital gain . Subsequently, the assessee filed revised return of income wherein the share in structure/building was offered as long term capital gain. Whereas, exemption was claimed on share in consideration received for sale of agricultural land. The ld. Counsel for the assessee submitted that the assessee furnished various documents before the Assessing Officer to substantiate that the land sold was agricultural land, situated beyond 13 Kms from the nearest Municipal limits of Alibag and the population of Village Awas, where agricultural land was situated is less than 10,000 as on 11/11/2014. The ld. Counsel for the assessee referred to the certificate issued by Tahsildar, Alibag at page -7 (translated copy at page -6) of the Paper Book. The ld. Counsel further referred to Form -7,7A annexed to registered sale deed to show that the land in question is an agricultural land and rice was cultivated on the land. To further substantiate nature of land, the assessee filed copies of 7/12 Extracts as additional evidence. The ld. Counsel for the assessee asserted that additional evidences have been filed to counter the reasoning given by the Assessing Officer to reject cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Departmental Representative further contended that no evidence has been filed by the assessee that basic agriculture operations were carried out on the land for cultivation. The CIT (A) has recorded a categoric finding that the land admeasuring 1.33 acres includes structure consisting of main building, swimming pool, landscape lawns, servant rooms, parking structure, etc. 6. We have heard the submissions made by rival sides and have perused the orders of authorities below. The primary question for our consideration in this appeal is: Whether the land sold appurtenant to the bungalow is an agricultural land within the meaning of Section 2(14)(a)(iii) of the Act and hence, its sale proceeds are exempt from tax . 7. The undisputed facts in the appeal are, the assessee is a joint owner of land admeasuring land 1.33 acres comprising in Gut No.364, 363 and 365 situated at Village Awas, Talukka Alibag, Dist. Raigad. The assesse had pre-defined share in aforesaid land and bungalow thereon admeasuring approximately 8000 sq.fts. The assessee in original return of income offered his share from sale of bungalow and land, under the head capital gains . In revised return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. We observe that one of the reason for rejecting assesse s claim is that the assesse has not declared any income from agriculture operations. The Hon ble Bombay High Court in the case of CIT vs Debbie Alemo (supra) has held that if a land is shown in the revenue records to be used for agriculture purpose and no permission was ever obtained for nonagriculture use, it is inconsequential whether any income from agricultural operation was declared by the assesse in the return of income or not. Thus, the objection of the revenue is without any merit. 11. We further observe that the Department in the case of other two co-owners of the land i.e. Smt. Sanober N. Irani and Shri Karl Navzer Irani has accepted their respective return of income wherein, the said coowners have declared their respective share of income from sale of same agricultural land (as that of present assesse) as exempt. The Department cannot have two divergent views in case of two assessees who are on same footing, having common source of income germinating from same transaction. 12. Thus, in view of the facts discussed above, we find merit in the grounds raised by the assesse/appellant and direct the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpreted. The interpretation so assigned by us is not only inconsonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly . The extraordinary steps taken suo motu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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