TMI Blog2014 (4) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in accordance with law after giving reasonable opportunity of hearing to the assessee. - Matter remanded back - Decided in favour of assessee. - I.T.A No. 01/Coch/2014 & C.O. No.20/Coch/2014 - - - Dated:- 1-4-2014 - Shri N.R.S. Ganesan and Shri B.R. Baskaran , JJ. For the Appellant : Shri S Rajeev For the Respondent : Shri K.K. John, Sr DR ORDER N. R. S. Ganesan (Judicial Member).- Both the assessee and the Revenue has filed the appeal against the very same order of the Commissioner of Income-tax (Appeals). The assessee has also filed the cross-objection supporting the order of the Commissioner of Income-tax (Appeals). Therefore, we heard both appeals and the cross-objection together and dispose them of by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to say,- (i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year ; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil ; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45 ; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above provisions, it is obvious that for the purpose of claiming exemption under section 54B -(i) there shall be a capital gain arising from transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee for agricultural purposes ; and (ii) the assessee has within a period of two years after the date of sale, purchase another land for being used for agricultural purposes. Sub-clause (2) says that if the amount of capital gain which is not utilised by the assessee for purchase of new asset before the date of furnishing of return of income under section 139(1), the same shall be deposited in an account as may be specified in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the orders of the lower authorities are set aside and the issue is remitted back to the file of the Assessing Officer. The Assessing Officer shall examine the matter and record a categorical finding whether the land which was sold by the assessee was used for agricultural purpose in the immediately two preceding years from the date of sale and whether the land purchased by the assessee was for agricultural purpose and thereafter decide the same in accordance with law after giving opportunity of hearing to the assessee. 5. The assessee has taken one more ground with regard to the fair market value as on April 1, 1981. 6. We heard the learned representative for the assessee and the learned Departmental representative. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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