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2019 (11) TMI 1043 - ITAT COCHINRevision u/s 263 - as per CIT AO while granting exemption u/s 10(37) failed to notice that the land acquired compulsorily was not situated in an area referred to in Item (a) or item (b) of sub clause (iii) of clause (14) of section 2 but situated within the limits of Trivandrum Municipal Corporation, and hence, capital gain could not be exempted u/s 10(37) - HELD THAT:- The land in question is classified as "Purayidam" in "Thandeperu Register" of the Revenue records. It doesn't mean that agricultural operation could not be carried out in the said land. The Agriculture Officer and the Spl. Tahsildar (L.A) had certified the presence of agricultural plantation in the land. AO, in the course of assessment proceedings, had conducted enquiries which is possible at that point of time in order to find out the utilisation of the land for agriculture purpose for two years immediately preceding the date of transfer and found that the land was used for agriculture purpose till it was acquired in 2007. Moreover the land acquired was a small piece of land. It formed part of 15.35 ares (about42 cents) of land owned by the assessee in sy.no. 186/7. Jurisdiction for setting aside the order of the AO by invoking revisionary power u/s 263 of the Act could not be assumed by the Commissioner of Income-tax (CIT) in this case. This is because the issues considered by the CIT for directing to conduct further inquiries in this respect were subject matter of inquiry by the AO and the AO had accepted the assessee’s contentions and formed a possible view in light of the facts of the case. The Tribunal in the case of K Rajendran Vs ITO Ward [2017 (7) TMI 1337 - ITAT COCHIN] had held on the basis of certificate of Agriculture Officer that 4.4 ares of land acquired for Trivandrum air port was agriculture land in which agriculture operation was carried out till the date of acquisition and, therefore, the capital gains arising from the transfer was exempt u/s 10(37) of the Act. Further, in the case of ITO, Ward 2(1) Tvm v. G.S.Lekha [2019 (4) TMI 1783 - ITAT COCHIN] Cochin Bench of the Tribunal (order dated 29.03.2019), on identical facts, held that assessee was entitled to deduction u/s 10(37) of the I.T.Act. Order of the CIT passed u/s 263 of the I.T.Act is set aside. - Decided in favour of assessee.
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