TMI Blog2016 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh in the interest of justice. The AO would verify the distance of agricultural land from the limit of Municipality. In the event, he finds that the transfer of agricultural land sweep within the definition of Capital Asset, he would compute the capital gain on such transfer as per law after giving the deductions as available to the assessee under the Act. - Decided in favour of assessee for statistical purposes. - ITA No. 148/JP/2015 - - - Dated:- 29-7-2016 - SHRI KUL BHARAT, JM SHRI VIKRAM SINGH YADAV, AM For The Assessee : Shri Siddarth Ranka (Advocate) For The Revenue : Shri Raghuvir Singh Dagur (Addl. CIT) ORDER PER SHRI KUL BHARAT, JM. The appeal by the assessee is directed against the order of ld. CIT(A)-III, Jaipur dated 18.07.2011 pertaining to assessment year 2006-07. The assessee has raised the following grounds of appeal :- 1. That the impugned lands were ancestral, were under cultivation, land revenue was being paid, were beyond the specified limit and being agricultural lands were not capital asset u/s.2(14)(iii) of the Income-tax Act, were exempt, were not liable to any capital gain and the ld. Lower Authorities grossly erred and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s detailed in the written submission placed before the Assessing Officer in the assessment/ appellate proceedings. 4.1 That the ld. Lower Authorities grossly erred in not allowing deduction for the amount paid for adverse possession. 4.2. That the ld. Lower Authorities grossly erred in not allowing the brokerage paid for the sale of the agricultural land. 4.3. That the ld. Lower Authorities grossly erred in not allowing deduction for ₹ 1,01,64,900/- + ₹ 1,01,15,090/- claimed in the written submissions in the assessment/appellate proceedings. 5. That the ld. Lower Authorities grossly erred in not adopting indexed cost claimed at ₹ 75,000/- per hector against allowed at ₹ 3273/- per bigha. 5.1. That the ld. Lower Authorities grossly erred in not allowing the exemption/deduction allowed lin respect of similar lands to the sons of the co-owner, Shri Mona Ram. 6. That the ld. Lower Authorities grossly erred in not considering the cost of improvement in the agricultural land sold by the appellants father. 7. That the impugned assessment as well as the appellate order are bad for want of adequate opportunity and being in violation of principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur for total consideration of ₹ 4,29,40,900/-. Share of Shri Bhomaram and his family was half i.e. ₹ 2,14,70,450/-. He was advcised the sale consideration is exempt. He was also advised and he invested the sale consideration for purchase of agricultural land, plots and for construction of houses in the name of coparceners/ members of the HUF. He was advised and was under the bonafide belief that there is no liability to income-tax and, therefore, income-tax return need not be filed voluntarily and suo-motto. It may be stated that Shri Bhoma Ram was illiterate, a rustic agriculturist and was not even knowing to put his signatures. (ii) A notice u/s.142(1) was issued to late Shri Bhoma Ram for the assessment year 2006-07 and it was duly responded and represented by Shri Narendra Goswami, Advocate, who filed necessary information and challenged that the notice issued to the individual is illegal as the agricultural lands were ancestral and belonged to his HUF. Thereafter, it appears another notice u/s.148 was issued on 18.1.2010 in the HUF capacity and it is claimed by the Revenue to have been served on 2.2.2010. However, unfortunately Shri Bhoma Ram died on 23.1.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants. That the appellants were prevented by good, sufficient, reasonable causes explained hereinabove and which would be argued at the time of hearing. We submit it is a fit case where the delay, if any, deserves to be condoned. It shall be in the interest of law, justice, equity and good conscience. That it is well settled proposition of law that a tax payer/citizen and particularly rustic agriculturists, illiterate persons should not suffer for ignorance omission, inadvertent mistake, non-proper understanding or ignorance of technical laws/procedure. That the Hon ble Supreme Court in Collector, Land Acquisition V/s. Mst. Katiji and Others (1987) 167-ITR-471 (SC) observed : the expression sufficient cause employed by the legislature in adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matter instituted in this court . We are reproducing some principles laid down by the Hon ble Court :- (1) Ordinarily, a litigant does not stand to benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harma vide order dated 23.3.2011 for A.Y. 2007-08 and order date 28/08/2014 by the ITAT of this bench but confirmed that the land situated in Sanjharia village is not a capital asset as envisaged in Section 2(14) of the Act. When in case of others, the ITAT has decided the capital assets outside the 8 km from the municipal limits and non condoning the delay by the Bench will tantamount to miscarriage of justice. The legal position on this issue is as under :- (i) Collector, Land Acquisition vs Mst. Katiji (167 ITR 471): Held that When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred . (ii) Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh Others (1979) 118 ITR 326 : held that it is impossible to know all the statutory provisions of law and hence the principle that everyone is presumed to know the law is not applicable universally since it is of a very different scope and application. (iii) N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123: Held that words sufficient cause under section 5 of the Limitation Act should received a liberal construction so as to advnce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is admitted. The contention of the assessee is that the agricultural land falls beyond the specified limit from the Municipal limit, hence could not be amenable to capital gains tax. We find that both the authorities below have accepted the fact that the land being transferred was an agricultural land. However, neither of them has given a clear finding as to how the transfer of agricultural land would be transfer of capital asset and is outside the exemption clause of section 2(14) of the Act. Since this issue goes to the very root of the taxability of capital gains, therefore, we hereby set aside the impugned order of ld. CIT (A) and restore the issue to the file of the AO to decide it afresh in the interest of justice. The AO would verify the distance of agricultural land from the limit of Municipality. In the event, he finds that the transfer of agricultural land sweep within the definition of Capital Asset, he would compute the capital gain on such transfer as per law after giving the deductions as available to the assessee under the Act. We also find support from the decision of the coordinate Bench of the Tribunal in ITA No. 726/JP/2013 under the identical facts has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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