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Virendra Singh And Surendra Singh Versus Income Tax Officer, Ward 2 (1) , Alwar

2017 (11) TMI 854 - ITAT JAIPUR

Deduction u/s 54B - claim denied on the ground that no agriculture activities were conducted on Khasra No.890 & 886 in two preceding years prior to the date of sale - Held that:- There is no evidence in support of the contentions raised in the submissions by the ld AR. It is admitted fact that there was no agriculture activity on these lands in the two preceding years from the sale of the land. Therefore, have no alternate but to confirm the findings recorded by the ld. CIT(A) on this issue. Gro .....

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cer may refer the valuation of the capital asset to the Valuation Officer. The assessee has not sought relief under this provision of the law. Therefore, have no alternative but to confirm the findings recorded by the ld. CIT(A) while dismissing this ground of appeal. However, in the case of Surendra Singh, it was claimed that the Stamp Duty Authority has determined the value at ₹ 25,29,641/- while the Assessing Officer has taken it at ₹ 26,02,211/-. The relief shall be granted to th .....

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yment of Dalali and making of fencings in both these cases. - ITA No. 302/JP/2017 And ITA No. 303/JP/2017 - Dated:- 10-11-2017 - SHRI BHAGCHAND, ACCOUNTANT MEMBER For The Assessee : Shri P.C. Parwal (CA) For The Revenue : Smt. Poonam Roy (DCIT) ORDER PER: BHAGCHAND, A.M. Both these are the appeals filed by two different assessees emanates from the two separate orders dated 23/02/2017 passed by the ld. CIT(A), Alwar pertaining to the assessment year 2011-12. The grounds taken by both these assess .....

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A.O. in taking the sales consideration of the agricultural land sold u/s 50C at ₹ 29,32,189/- as against actual sales consideration of ₹ 26,95,500/- by incorrectly distinguishing the case laws relied by the assessee. 3. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the action of AO in not allowing the claim of dalali payment of ₹ 75.000/- on sale of land and fencing expenses of ₹ 2,10,000/- on the agricultural land purchased by .....

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n taking the sales consideration of the agricultural land sold U/s 50C at ₹ 26,02,211/- as against actual sales consideration of ₹ 23,89,250/- incorrectly distinguishing the case laws relied by the assessee. 3. The Ld. Commissioner of Income Tax (Appeals) has erred on facts and in law in confirming the action of AO in not allowing the claim of dalali payment of ₹ 35,000/- on sale of land and fencing expenses of ₹ 2,15,000/- on the agricultural land purchased by the assess .....

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is share at ₹ 23,89,250/-. Both these assessees computed long term capital gain on sale of their agricultural land at Nil after claiming deduction U/s 54B of the Income Tax Act, 1961 (in short the Act). During the assessment proceedings, the Assessing Officer observed that the agriculture was being carried over in Khasra No. 887 measuring 1.10 hectare. However, no agriculture activities were carried out in Khasra No. 886 measuring 0.01 hectare and Khasra No. 890 measuring 0.62 hectare. The .....

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e of sale. The ld. CIT(A) has confirmed the action of the Assessing Officer in the case of Virendra Singh by holding as under: 5.3 I have considered the assessment order and submissions filed by the appellant during the course of appellate proceedings. Following facts have emerged; 1. That the appellant during the year under consideration had sold 3 land parts as per khasra No. 886, 887, 890. 2. That the appellant sold the above mentioned three pieces of land on 21-04-2010, 25-08-2010 and 02-02- .....

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u/s 54B of the Act for ₹ 25,14,850/-. The AO had considered the value of purchased land at ₹ 18,80,400/-. 7. That as per the Khasara-girdawari record, land in Khasara No. 890 and 886, no agricultural activities were conducted for two preceding years prior to the date of sale. As a result, the AO has disallowed ₹ 9,01,322/- for the purpose of section 54B of the Act. 5.3.2 I have considered the above mentioned fact. It would be worthwhile to reproduce the provision of section 54B .....

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ssee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- (i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference be .....

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spect 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 t .....

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th 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 purchase of the new asset within the period specified in sub-section (1), then,- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to with .....

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purposes within two years from the date of transfer as per conditions laid down in section 54B(1) of the Act. 3. That deemed sale consideration is to be adopted u/s 50C of the Act. Point no. 1:- Hon ble ITAT Jaipur Bench in assessee s own case for AY 2010- 11 has decided that for the purpose of claiming deduction u/s 54B of the Act, if the assessee has purchased eligible assets u/s 54B within the period of two years from the date of transfer then the deduction is allowable, irrespective of the f .....

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own case for AY 2010-11. Accordingly, deduction u/s 54B of the Act for the eligible land is allowed. Point No. 2;- I have considered above mentioned point no. 2 and surrounding facts. On the factual matrix and legal conditions as provided under the Income Tax Act, the AO has rightly disallowed part of land sold (Khasara No. 890 and 886) in the year under consideration as mandatory condition under section 54B of the Act was not fulfilled by the appellant. Point No. 3:- I have already discussed in .....

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on allowable u/s 54B of the Act as per the adjudication made above and also take into account adjudication of ground of appeal no. 1(b), 1(c) and 1(d). Accordingly, the appellant s ground of appeal on the issue is partly allowed. 5. While pleading on behalf of the assessee, the ld AR has submitted that khasra No. 886 was only 0.01 hectare and the description was Gare Mumkin Chah , which suggests that it was a well for supplying of water to the crops. He also submitted that on Khasra No. 890, agr .....

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erma (2013) 42 ITD 421 (Hyd)(Trib). 6. On the other hand, the ld DR has relied on the orders of the authorities below. 7. I have heard the rival contentions of both the parties and perused the material available on the record. I have also perused the order of the Coordinate Bench of ITAT, Hyderabad Bench, but the facts of these assessees cases are completely at variance. There is no evidence in support of the contentions raised in the submissions by the ld AR. It is admitted fact that there was .....

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the case of Virendra Singh is as under: 6.3 I have gone through the assessment order as well as submissions n by the AR and find that an addition of ₹ 2,36,689/- has been n by the AO by adopting the DLC value of land as sale consideration as per the stamp duty paid on the sale of the land. The appellant has cited various judgments in support of his claim that since the difference between actual sale consideration and DLC rate is less than 10% hence as per various court judgments, the actu .....

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the appellant. Therefore on factual matrix of the case, it is my considered view that the A.O has rightly taken the consideration at ₹ 29,32,789/- as against actual sale consideration of ₹ 26,95,500/-. Accordingly, A.O s contention in this regard is sustained and the appellant s ground of appeal is dismissed. 9. After hearing both the sides on this issue and considering the case laws relied upon, I am of the view that there is no choice with the Assessing Officer but to adopt the va .....

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of the issue, I have no alternative but to confirm the findings recorded by the ld. CIT(A) while dismissing this ground of appeal. However, in the case of Surendra Singh, it was claimed that the Stamp Duty Authority has determined the value at ₹ 25,29,641/- while the Assessing Officer has taken it at ₹ 26,02,211/-. The relief shall be granted to that extent, which is apparently a mistake in adopting the value. 10. In the ground No. 3 of both these appeals, the issue is not allowing t .....

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O is justified in disallowing the expenditure of ₹ 75,000/- claimed as dalali w.r.t the land transaction. Accordingly, appellant s ground of appeal on this issue is dismissed. 8.2 I have gone through the assessment order as well as submissions made by the AR. Any claim of expenditure has to be backed by evidence of such expenditure and has to be related to the transaction. In this case, the appellant had failed to give evidences before the A.O. Even during appellate proceedings, no credibl .....

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