TMI Blog2004 (2) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions : (1)CIT vs. R. Ranga Reddy (1979) 118 ITR 897 (AP); (2) ITO Ors. vs. Chandi Prasad Modi (1979) 119 ITR 340 (Cal); (3) CIT vs. Ishwar Singh Sons (1981) 131 ITR 480 (All); and (4) CIT vs. K. Adinarayana Murty (1967) 65 ITR 607 (SC). 3. The learned Departmental Representative opposed above contention and claimed that the proper notice was issued to the assessee in his individual capacity and assessment was also made in the same capacity and as such no illegality was involved in the assumption of jurisdiction under s. 147/148 of the IT Act. 4. We have given careful thought to the rival submissions of the parties. The AO issued notice under s. 148 of the IT Act, dt.5th Feb., 1993. A copy of the said notice is available at p. 20 of the paper book filed before us. The said notice is issued to Shri Babu Ram s/o Shri Mool Chand. It is stated to be issued to Shri Babu Ram in his individual capacity. In our considered opinion, when notice is issued to an individual, no capacity need be stated in the notice. The presumption under the law is that said notice is issued to the person in his individual capacity. At the same time, if notice is issued to the assessee as Kart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant submitted that the cost of acquisition as on1st April, 1974, should have been allowed at the rate of Rs. 40 per sq. yard on the basis of valuation report filed at pp. 110-118 of the paper book. He has further submitted that the land in question was right on by-pass ofDelhiroad, i.e., Partapur to Modipuram. A map of village Nagla Tasi prepared by Shri R.K. Gupta, valuer, in this context has been filed. It was further submitted that this land is also nearSardhana Roadand one kilometre away from Meerut Cantt. railway station. The appellant had also filed a sale deed of Khasra No. 139 in village Nagla Tasi which is quite near to by-pass where the land was sold on9th Sept., 1974, at the rate of about Rs. 29 per sq. yard. It is not very far from the land in question. It was contended that the rate of the land in question was to be more than the land referred to because the land referred to was slightly away from the main by-pass road. The learned counsel submitted that stamp rate of the said land was Rs. 36 per sq. yard as mentioned in the sale deed. Reliance was also placed on the certificates of Gram Pradhan, village Nagla Tasi and Tehsildar,Meerut, placed at pp. 115 and 116 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT(A), the assessee was justified in claiming cost of acquisition @ Rs. 40 per sq. yard. The learned Departmental Representative relied upon the order of the AO. She further placed on record a copy of order of the CIT(A), dt.18th Dec., 1992, in the case of Smt. Makhmali Devi and submitted that the AO was right in allowing cost @ Rs. 15 per sq. yard. 9. We have given careful thought to the rival submissions of the parties. We have also considered the orders of the CIT(A) and of the Tribunal in the case of Smt. Makhmali Devi. In the aforesaid case cost of acquisition has been allowed at Rs. 30 per sq. yard. There is, therefore, no justification to allow cost of property at a lower figure. After considering the material on record, we are inclined to allow cost of acquisition @ Rs. 40 per sq. yard. It is relevant to mention that material brought on record by the assessee in this case was not available in the case of Smt. Makhmali Devi. As noted by the learned CIT(A) the assessee for claiming cost at the rate mentioned above, relied upon valuation report of the registered valuer. We see no good ground to reject the aforesaid report, particularly when said report was corrobora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the material on record. The learned counsel for the assessee vehemently contended that decision in the case of Smt. Sheela Prasad, in fact, supported the claim of the assessee that land acquired was ancestral and sons and grandsons of the assessee had right in the compensation paid. The learned counsel for the assessee further relied upon the decisions in the cases of Arvind Chandulal vs. CIT (1982) 27 CTR (Guj) 67 : (1983) 140 ITR 241 (Guj) and CIT vs. R. Ponnammal (1986) 54 CTR (Mad) 319 : (1987) 164 ITR 706 (Mad), to contend that claim of the assessee under s. 54B was in order. The learned Departmental Representative supported the impugned order of the CIT(A). 15. We have given careful thought to the contention advanced on behalf of the assessee. There is no material on record to show that the land acquired was ancestral in the hands of Shri Babu Ram. It is further not established on record that land in question was allotted to the assessee on abolition of Jamindari rights under the U.P. Jamindari Abolition and Land Reforms Act. It is well-settled law that it is for the assessee to prove that land or property in question was ancestral. The aforesaid onus has not been discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen rebate is provided if the sale consideration/compensation is used for the purchase of other agricultural land for the purposes of cultivation. Due to expansion of cities on account of commercialisation and globalisation, agriculturists are forced to shift their agricultural holdings from towns or places near to towns to places in the interior. This section enables them to carry on agricultural activities by providing relief against chargeability to capital gain. 18. It is also well known that a holder of agricultural land in most cases, is not able to carry on the process of agriculture alone. He is helped by his sons, wife and other members of the family and in that sense holder alone is not taken to be the owner of the land. The land and agricultural income from such land is considered to belong to the entire family to be used for their benefit. Courts and Tribunals have to take judicial notice of the manner in which agriculturists are operating in village. We are, therefore, of the view that provisions of s. 54B(1) cannot be construed in a narrow manner and in case the seller has purchased other land for being used for agricultural purposes, the benefit of the provisions h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
