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M/s. Bhoma Ram HUF (Through Coparceners and L/Hs) Versus The Income Tax Officer, Ward 7 (2) , Alwar.

Treating the agricultural land as capital asset - Held that:- It is observed that no such ground was taken before the First Appellate Authority as is evident from Form No. 35. However, this being a legal ground and goes to the very root of the taxability of the capital gain, we deem it proper that the same be admitted for adjudication. Accordingly, the same is admitted. The contention of the assessee is that the agricultural land falls beyond the specified limit from the Municipal limit, hence c .....

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nd 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. - Decided in favour of assessee for statistical purposes. - ITA No. 148/JP/2015 - .....

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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 exceeded their jurisdiction in holding liable to capital gain and in computing long term capital gain of ₹ 2,12,91,192/- and levying tax, interest and penalty. 1.1 That the ld. Lower Authorities grossly erred in drawing adverse inference and not considering that the ap .....

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hri Sitaram and Shri Lalaram. The action and entire proceedings are without jurisdiction, illegal, invalid and liable to be quashed. 2.1. That the ld. Commissioner of Income-tax (A) grossly erred in rejecting the jurisdictional issue raised before him and dismissing on the ground that the question of jurisdiction of any AO could not be raised u/s.124(3)(b) of the Act when the question has been raised as to the validity of the impugned proceedings and the impugned notice. The learned Commissioner .....

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ned that the language of earlier existing sec.54-B was vague, discriminatory with the scheme of reinvestments contained under the Chapter while enacting sections 54, 54F etc. and to cure such discrimination the Legislature substituted the expression the assessee or a parent of his by Finance Act, 2012 by the expression the assessee being an individual or his parent, or a Hindu Undivided Family and such substitution is clarificatory, curative, retroactive and operative for the assessment year 200 .....

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ly 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 .....

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the appellants being illiterate, rustic agriculturists, unaware of the requirements, the adverse inference drawn is drastic and unsustainable in law. 8.1. That the impugned appellate order has been made in haste, ignoring detailed submissions dated 18.7.2011, in single hearing and by order on the same day i.e. 18.7.2011, without application of mind, without properly appreciating the submissions made orally and with pre-determined mind to reject in a summary manner. 9. That the Assessing Officer .....

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of delay. In support of the application, an affidavit is also filed by the appellant. The ld. Counsel for the assessee has reiterated the submissions as made in the application. 2.1. On the contrary, the ld. D/R Shri Raghuvir Singh Dagur has vehemently opposed the submissions and submitted that there is no reasonable cause shown by the assessee for delay in filing the appeal. 2.2. We have heard the rival contentions and perused the material available on record. The contention of the assessee as .....

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Shri Bhoma Ram sold the tenancy rights of the agricultural lands to Shri Kashi Ram S/o Shri Maniram C/o Sanskar Buildtek (P) Ltd., Narayana Tower, Jaipur 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 t .....

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n 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 leaving two sons, namely, Shri Sita Ram and Shri Lala Ram, one widow, namely Smt. Aani Devi (not Kani Devi) and seven daughters, a very large family. The .....

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oswami and all the necessary information with regard to particulars of sale details, sale consideration, reinvestments etc. are being/have been submitted truly, correctly and fully before the ld. Assessing Officer in the earlier assessment proceedings and subsequently. Full cooperation was duly extended and there was no negligence or any inaction on the part of both sons of late Shri Bhoma Ram. (iv) The Income-tax Officer, Ward 7(2), Jaipur made an assessment order on 30.11.2010 denying the dedu .....

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of the provisions of law and receipt of the impugned appellate order. However, on receipt of recovery notices and statements on 2.2.2015, approached Shri Narendra Kumar Jain, Advocate and as asked by him searched and carried heap of papers lying in the house on 3.2.2015. Shri Jain traced out the impugned order and had consultation with Shri N. M. Ranka, Senior Advocate, who advised to prefer an appeal and for making the condonation application. Accordingly the Counsel was requested to draw out a .....

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tice, 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 .....

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matter being thrown out at a very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happean is that a cause would be decided on merits after hearing a parties. (3) When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserve to be preferred, for the other side cannot claim to have vested right injustice being done because of a nondeliberate delay. (4) There is no presumptio .....

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State of Haryana vs. Chandra Mani & Others (1996) AIR 1623 (SC) Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123 (SC) Shankarrao vs. Chandrasenkunwar (1987) Supp SCC 338 (SC) Bharat Auto Centre vs. CIT (2006) 282 ITR 366 (All.) CIT vs. West Bengal Infrastructure Development Finance Corpn Ltd. (2011) 334 ITR 269 (SC) Jaipur Mineral Development Syndicate vs. CIT (1977) 106 ITR 653 (SC) The ld. Counsel has also placed reliance on the decision of the Coordinate Bench in the case of Sita Ram S .....

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the IT Act and also forget the matter to remind these assesses as file of these assesses were mixed in the other files of his office. Further the adjacent land has hbeen treated agricultural assets as envisaged in Section 2(14) of the Act in the case of Kamla Devi Sharma 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 .....

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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 substantial justice. The Hon ble Supreme Co .....

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f substantial justice, we feel that delay should be condoned and the assessee is allowed to be heard on merit. The facts are identical in this case. Therefore, taking a consistent view, we hereby condone the delay and adjudicate the appeal on merit. 3. The first ground in this appeal is against treating the agricultural land as capital asset. 3.1. The ld. Counsel for the assessee vehemently argued that the case of the assessee is that despite having admitted the fact that the land transferred wa .....

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d that under the identical facts in case of other land owners of similarly situated, the Coordinate Bench in ITA No. 726/JP/2013 pertaining to A.Y. 2007-08 has held that the land is not a capital asset. The ld. Counsel, therefore, urged that the impugned order be set aside and the AO be directed to decide the issue afresh. 3.2. On the contrary, the ld. D/R vehemently opposed the submissions and submitted that there is no illegality in the order of ld. CIT (A). 3.3. We have heard rival contention .....

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enable 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 .....

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P/2013 under the identical facts has decided the issue by observing as under :- 9. We have heard the rival contentions of both the parties and perused the material available on the record. The land sold by all the brothers situated in village - Sanjharia, Tehsil- Sanganer, district- Jaipur. In case of assessee s brother namely Shri Ram Sahay Sharma in A.Y. 2007-08 by the ITO Ward 7(2), Jaipur order dated 25.03.2013 had not made any addition on account of long term capital gain. Further the ld. C .....

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