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Shri Om Prakash Rajoria Versus The CIT, Ajmer

2015 (11) TMI 1195 - ITAT JAIPUR

Revision u/s 263 - deduction u/s 54B claimed by assessee qua sale of Sohna land was wrongly allowed as one half of the new agriculture land was purchased in the name of the assessee's wife Smt. Anita Rajni - Held that:- While examining the record under sec. 263, CIT has to see whether the subordinate authority has considered relevant issues and enquired into the relevant aspect of the claims in the year in question. Since the agricultural income in this year was not shown, the AO before partly a .....

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for allowability of claim. Record does not reveal that these were considered or inquired. Thus there is a total lack of enquiry on these aspects besides whether the agricultural income was earned or not from this very land. In our considered view, the assessment order suffers from lack of enquiry on these crucial aspects and it is not a case of partial inquiry as pleaded to be covered by the judgement of Hon'ble Delhi High Court in the case of CIT vs. Sunbeam Auto Ltd. (2009 (9) TMI 633 - Delhi .....

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ssee : Shri P.C. Parwal For The Revenue : Smt. Rolee Agarwal (CIT-DR) ORDER PER R.P. TOLANI, JM This is an appeal filed by the assessee against the order of the ld. CIT, Alwar dated 24-01-2014 for the assessment year 2006-07 u/s 263 of the Act raising following grounds. (i) challenging the action of ld. CIT u/s 263 of the Act in setting aside the assessment order dated 23-12-2011 u/s 148 r.w.s. 143(3) of the Act. (ii) the ld. CIT held in not allowing deduction u/s 54B while computing the capital .....

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d as in compliance to notice u/s 148 of the Act. The basis and reasons for reopening of the assessment was to the effect that the deduction u/s 54B of the Act claimed by assessee qua sale of Sohna land was wrongly allowed as one half of the new agriculture land was purchased in the name of the assessee's wife Smt. Anita Rajni. Consequently, claim u/s 54B of the Act was restricted to ₹ 15,51,730/-. 2.2 The ld. CIT called for the record and found that the assessment order passed by the A .....

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r and adequate enquiry and arrived at a definite view that the land sold was urban agricultural land and has been used for agricultural purposes in preceding two years besides section 54B does not restrict the benefit to the agricultural land only. For this proposition, decision of Hon ble Punjab & Haryana High Court in case of CIT Vs. Savita Rani 271 ITR 40 was relied upon. Further, in support of the user of the land for agricultural purpose, copy of Jamabandi was filed along with affidavit .....

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he AO verified the claim of the assessee u/s 54B of the Act and disallowed ½ of the land was purchased in the name of the assessee. These facts clearly show that the AO made proper enquiry and applied his mind. Therefore, he disallowed 1/2 of claim u/s 54B of the Act. Since due inquiries were made, his order cannot be held to be erroneous and prejudicial to the interest of the revenue. (ii) In the return for the assessment year 2005-06, the assessee had declared agricultural income of  .....

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fact was never communicated to the assessee at any time. By affidavit Shri Shyam Singh has deposed that the assessee had carried out the agricultural operations on the this land. (iv) From the copy of Khasra Girdawari from F.Y. 2002- 03 to 2006-07, it is reflected that agricultural activities were carried on this land. All these facts prove that all such documents were filed before the AO in the assessment proceedings which were verified by him and after proper verification and due enquiries, th .....

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eded into residential. The ld. AR placed following case laws:- (i) Hindustan Industrial Resources Ltd. Vs ACIT [2011] 335 ITR 77 (Delhi) (ii) CIT v Smt. DEBBJE ALENO [2011] 331 ITR 59 (Bom) (iii) CIT Vs. Sunbeam Auto Ltd. (2011) 332 ITR 167 (Delhi) (HC) (iv) Mahish Kumar Vs. CIT (2012) 134 ITD 27/ 17 ITR (Trib.) 324 (Indore)(Trib.) (v) CIT Vs. Gaberil India Ltd. 203 ITR 108, 113, 114 (Bom.) (HC) (vi) CIT Vs. Amit Corpn. (2012) 213 Taxman 19 (Guj.) (HC) (Mag.) (vii) CIT Vs. Leisure Wear Exports L .....

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of jamabandi was not found and a copy of jamabandi for financial year 2001-02 was found which does not pertain to the land sold in this year. ii. The agricultural land is always sold on the basis of Khasra Numbr and measurement in Marla and Sarsai whereas the assessee has sold this land as residential measuring in sq. yards. iii. Land measuring 222.23. sq.yards sold vide agreement dated 20- 03-2006 for ₹ 13.60 lacs as a building consisting of Nine Rooms with boundary wall, open space, stai .....

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ars immediately preceding the date of such transfer. In this regard, reliance is placed to the decision of Kerala High Court in the case of Smt. Asha George vs. ITO (2013) 351 ITR 0123 in which Hon'ble High Court affirmed the finding of the lower authorities that the assessee was not entitled to the benefit of Section 54B on the ground that the property which she sold was not used for agricultural purposes for a period of two years prior to date of the sale as required u/s 54B of the I.T. Ac .....

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ral income shown in earlier year has not been demonstrated to be earned from the land which is sold in the form of plots by the assessee. It is a settled law that burden to prove the eligibility for claim of deduction and exemption is on the assessee. While examining the record under sec. 263, CIT has to see whether the subordinate authority has considered relevant issues and enquired into the relevant aspect of the claims in the year in question. Since the agricultural income in this year was n .....

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