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2015 (8) TMI 1268

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..... on in the lower appellate proceedings forming part of record contains all details of the crops sown since financial year 2003-04. We deem it proper to observe that the same is public record prepared by agrarian authorities under respective land and tenancy laws which cannot be brushed aside without any specific evidence to the contrary. There is no such evidence much less a specific one forthcoming. Therefore, the assessee satisfies the second stipulation as well. Now we come to Assessing Officer’s objection that the land is not transferred under compulsory acquisition. The case record file states purpose of the sale deed to be a sewerage treatment plant. The Revenue does not point any infirmity therein. Therefore, this argument also fails. The fourth condition of the transfer effected on 28.3.2010 is automatically satisfied since the same is after 1.10.2004. It is also to be seen from the case file that assessee led sufficient oral evidence of the concerned panchas in favour of his plea of having cultivated the land. The TDS deduction form is not in order since it categorized assessee’s payment to be contractor bill in spite of the fact that it pertains to land transfer. The asses .....

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..... income of ₹ 1.77 lakhs under the head other sources. 4. The assessee filed his response in return. He pleaded for section 10(37) exemption and inter alia submitted the land to be situated within Surat municipal corporation jurisdiction later on transferred under compulsory land acquisition provisions, referred to necessary particulars stated in transfer documents in support thereof. He further stated that the land in question was used for agricultural purposes since long including the immediately preceding two assessment years as per form 7/12 produced on record from AY 2005-06. The assessee explained that once the impugned gain had arisen from compulsory acquisition, all four conditions u/s 10(37) stood fulfilled. He further stressed that since he was mainly an agriculturist, no income/expenditureaccount had been maintained regarding details of seeds, fertilizers and the produce sold. 5. We find from the case file that the Assessing Officer did not agree to the above stated pleadings. He admitted the assessee s land to be falling within the limits of Surat municipal corporation limits. However, he observed that there was no evidence of any agricultural operations .....

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..... g two years; he has filed copy of Panchnama confirming the fact by the. Panchas before the TalatiMojeDindoli that on the impugned land Mowar' rind 'Tuar 'was cultivated by him; and he has filed confirmation from as many as nine individuals from the village Dindoli confirming that he is a resident of Dindoli for the last 15 years and cultivating 'Jowar' on his land. It is also submitted that the above documents were filed before the Assessing Officer during the course of the assessment proceedings. In regard to the vouchers of expenditure of agricultural activity carried out on the impugned land, the appellant has relied upon the submission dated 28.12.2010 filed during the course of assessment proceedings. As for the TDS made by the SMC on the amount received on account of compulsory acquisition of land, the appellant's submission is that the Assessing Officer has drawn wrong conclusion that since, the SMC has deducted tax on the payment no agricultural activity had been carried out. In this regard, it is also stated that at the time of making compulsory acquisition of the appellant's land, SMC was not required to ascertain whether agricultural operation .....

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..... of purchase bills of seeds and other agricultural expenses and sale bills of the agricultural produce. This finding of the Assessing Officer is, however, not sustainable for the reason that the appellant is an agriculturist, which fact Assessing Officer has himself recorded in para- 3 of the assessment order, and, is further corroborated by the fact that the appellant has no other source of income, and he has also not properly considered the appellant's submission dated 28.12.2010 filed during course of the assessment proceedings. The third reason given by the Assessing Officer for rejecting the claim of the appellant u/s J.O (37) is the fact that the SMC has made deduction of TDS on the amount of payment by acquisition of land in question. The Assessing Officer has, however, not carried out any verification or inquiry from . SMC to find out as to the correct nature of payment on which TDS has been made, since TDS certificate records the payment on account Contractor bill', therefore, he cannot accept the TDS certificate in part..In other words, if TDS has been made on payment, and it means; that the land was not used for agricultural purposes, the Assessing Officer at t .....

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..... eferred to under section 2(14) (iii)(a) or (b). Such a land is to be used for agricultural purposes during the period of two immediately preceding years. The third one is that the transfer in question has to be by way of compulsory acquisition. The fourth and last condition is that such a transfer is on or after 1.4.2004. The assessee duly fulfils the first condition as the land is well within municipal limits. Coming to land s use during the immediately preceding two years, we find that the revenue record form 7/12 as relied upon in the lower appellate proceedings forming part of record contains all details of the crops sown since financial year 2003-04. We deem it proper to observe that the same is public record prepared by agrarian authorities under respective land and tenancy laws which cannot be brushed aside without any specific evidence to the contrary. There is no such evidence much less a specific one forthcoming. Therefore, the assessee satisfies the second stipulation as well. Now we come to Assessing Officer s objection that the land is not transferred under compulsory acquisition. The case record file states purpose of the sale deed to be a sewerage treatment plant. Th .....

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