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TMI Blog2015 (7) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 142 (1) of the Act was issued to the assessee on 25.08.2010 to file his return of income on or before 31.08.2010. The assessee vide reply dated 31.08.2010 submitted that he is not liable to income tax as he is having only agriculture income and that land sold is situated more than 8 KMs from the municipal limit. Thereafter, the Assessing Officer issued notice under section 148 of the Act to the assessee on 06.09.2010. In response, the assessee filed return of income on 05.10.2010 and declared total income at Rs. 16,04,680/-. The case was selected for scrutiny. 4. During the course of assessment proceedings, the assessee claimed that due date for filing of the return was 15.10.2010. In this connection, assessee also submitted that the case of the assessee falls under section 44AB of the Act as he is also doing the business of earth filling and civil contractor. The Assessing Officer held that no documentary evidence in this regard has been filed and it was after thought, after issue of notice under section 148 of the Act. Further, the assessee in reply to the notice under section 142 (1) of the Act also stated that he was merely an agriculturist. However, explanation of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the same land before sale of the land, therefore, this claim of assessee was also disallowed. 8. The ld. CIT(Appeals), considering the facts of the case found that sum of Rs. 50 lacs have been deposited after due date of filing of the return i.e. 31.07.2010 and in any case, after filing of the return on 05.10.2010. The advance of Rs. 50 lacs is also made without taking possession of the land, therefore, these grounds of appeal of the assessee were dismissed. 9. We have heard ld. Representatives of both the parties and perused the material available on record. As regards the re-opening of the assessment under section 148 is concerned, the assessee raised the issue before ld. CIT(Appeals) that due date for filing of the return was 15.10.2010, therefore, issue of notice under section 148 of the Act on 06.09.2010 was not valid. The ld. CIT(Appeals) found that the assessee has concocted story of engaging in business activity for which no documentary evidence was filed for doing any business activity. The assessee initially contended that he is merely agriculturist and the land in question falls outside the municipal limit, therefore no capital gain arises. Therefore, the story p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reduced, by the amount of the capital gain.] [(2) The amount of the capital gain which is not utilised by the assessee for the purchase of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.2009 (PB-89) agreement to Sell/purchase have been executed for the purchase of land measuring 57 Bigas 8 Biswa at village Kheri Gillan, Distt. Sangrur with S/Shri Ajmer Singh, Gurjant Singh and Harbans Singh. It was also explained before Assessing Officer that on 01.12.2009, the land measuring 24 kanal was sold at Rs. 1,04,40,000/- to Asian Educational Society by Registered Sale Deed dated 01.12.2009. It was further explained that the land measuring 8 kanal was sold at Rs. 34,80,000/- to Asian Educational Society by Registered Sale Deed dated 01.12.2009. It was explained that on 08.03.2010, land measuring 8 kanal was sold at Rs. 16,00,000/- to Asian Educational Society by registered sale deed dated 08.03.2009. Thus, total sale consideration of the aforesaid three sale deeds were amounting to Rs. 1,55,20,000/-. It was also explained that the purchase of land measuring 57 bigas 8 biswa was to be finalized on 15.05.2010 before Sub Registrar, Bhawanigarh. However, the seller not turned up for the aforesaid registration whereas the assessee marked his presence before the authority and the matter is now pending adjudication before Civil Judge, Sr. Division, Sangrur. 13(i) The ld. cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The assessee has pleaded all the above facts before the Assessing Officer but the Assessing Officer has not given any finding on the same. The Assessing Officer merely presumed that since Sale Deed was entered into on 01.12.2009 with Asian Educational Society and Agreement to Purchase was prior to that date and the assessee did not get possession of the same, therefore claim of assessee not found justified. The assessee, however, explained the reasons why the possession could not be taken because the seller has not turned up for handing over possession to the assessee or for completion of the sale. The case law relied upon by the assessee support the case of the assessee that it may be a case of transfer under compelling reasons and the ld. CIT(Appeals) also without giving any reasons for decision, rejected the claim of assessee. Similarly, assessee also failed to explain that agreement to sell was executed in name of Baljit Singh and litigation is also in name of Baljit Singh and assessee has to correlate all facts. Therefore, considering the facts and circumstances and the documentary evidence brought on record in the light of the above decision, we are of the view the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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