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2020 (5) TMI 114 - AT - Income TaxRectification of mistake u/s 254 - Exemption u/s 10(37) - land was not used for agricultural purpose - HELD THAT:- Regarding the contention of the assessee that section 10(37) does not require that every inch of a Khasra should be used for cultivation and if a particular Khasra of land is used for cultivation, then the condition prescribed in section 10(37) is fulfilled. We find that a view has been taken by the Bench regarding the interpretation and applicability of provisions of section 10(37) which was germane to the issue under consideration and a view so taken on appreciation of the facts of the case is not a matter which can be rectified/modified within the limited scope of section 254(2) of the Act. Fact remains that mere presence of 50 Amla trees on land measuring 1.01 hectare of land will not change or have any bearing on the final conclusion and findings so arrived at by the Bench. There is nothing on record to support the fact that the assessee was owning and using the land till the date of allotment letter dt. 20.11.2009 and therefore, there is thus no mistake in the factual findings of the Tribunal where it held that the land was transferred in the name of JDA in year 2008 on the basis of Khasra Girdwari which reflects the name of the JDA as the owner of the land. The basis of arriving at finding by the Coordinate Bench in A.Y 2009-10 that the capital gains is chargeable to tax in A.Y 2010-11 was on account of fact that the compensation was received by the assessee on 20.11.2009 and on that account, it was held that the capital gains shall be chargeable to tax in the A.Y 2010-11. The same cannot be taken as basis for stating that the assessee was owning and using the land till the date of allotment. Tribunal in case of ITO Vs. Smt. G.S. Lekha (2019 (4) TMI 1783 - ITAT COCHIN) Agricultural officer has certified the land to be agricultural land unlike in the present case where the land records show no agricultural operations were carried on the said land prior to the date of transfer. Therefore, the said decision doesn’t support the case of the assessee. While holding so, the Tribunal has not considered the Khasra Girdawari for samvat year 2065 (2008) which shows cultivation of 50 amla trees. Thus, the agricultural operations were carried on the land prior to the date of transfer. Existence of amla trees is itself a proof of cultivation. Further, in the present case there is no dispute that land is an agricultural land. Hence, distinguishing the case laws relied by assessee by assuming incorrect facts is a mistake apparent on record. We find that the decision of the Coordinate Bench in case of Smt. G.S Lekha rendered in its peculiar facts have been duly considered and distinguished in the facts of the present case including the fact relating to amla trees. Therefore, we donot find any mistake apparent from record and the contention so advanced in this regard are rejected. We find that the Bench has duly considered all the relevant facts and material on record including Khasra Girdawari and affidavits of sh. Laxman Singh and Rameshwar Chaudhary and has thereafter arrived at a view and finding that no agricultural activities were carried out on the impugned land and the land was lying vacant for 4 years. If the contention of the ld AR is accepted, the same would result in reappreciation of material on record and review of the decision already taken by the Bench which is not permissible within the narrow confine of section 254(2) of the Act. In the result, the miscellaneous application is dismissed.
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