TMI Blog2019 (2) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulated time. Further it was not the case of the Revenue that from the sale proceeds of the agricultural land earlier owned by the assessee, the land in question was purchased for any other purpose than the agricultural purpose. The purchased land was being used by the assessee for agricultural purpose and merely because in the sale deed his only son was also shown as co-owner, the Hon'ble ITAT has rightly come to the conclusion that it does not make any difference because the purchased land is being used by the assessee for agricultural purposes. On the other hand, Ld. DR did not bring out any evidence on record to demonstrate that the said land of the assessee was used for any other purpose other than agricultural purpose. The Assessing Officer referred to the judgment of Hon'ble Bombay High Court in the case of Prakash Vs. ITO [2008 (9) TMI 234 - BOMBAY HIGH COURT] but the facts are substantially different from the case of the assessee in hand. Further, we have also considered the decision in the case of CIT Vs. Vegetables Products Ltd. [1973 (1) TMI 1 - SUPREME COURT], therein the view also favorable to the assessee that has to be taken, in case of conflicting opinions. - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 02/03/2015. Accordingly, the assessee filed his return of income on 23/03/2015 in response to notice issued u/s 148 of the Act declaring total income at ₹ 2,66,030/ - and offered Long Term Capital Gain at ₹ 8,22,717/ -. During the year under consideration, the assessee along with other 5 members sold agricultural land situated in Gat No. 150 151 (i.e. S. No. 150 of 39800 sq. m. and S. No. 151 of 59300 sq. m.), Makhmalabad, Nashik to Suyojit Group for total consideration of ₹ 48,33,334/ - wherein the share of the assessee was 13.72%. The said land is situated within 8 kilometers of the municipal limits of Nashik Municipal Corporation, the same is a capital asset within the meaning of section 2(14) of the Act as such the gain out of sale of agriculture land is chargeable to Income-tax. The said land was ancestral land, the deemed cost of acquisition was to be taken the fair market value of the said land as on 01/04/1981. The assessee took the cost of acquisition at ₹ 40,10,616/- as per the report of approved valuer. The Assessing Officer did not accept the valuation of the approved valuer. Further, the Assessing Officer made reference to Departmental Valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment year 2011-2012 1996-97 2011-1012 2 Due date u/s.139(1) 31/07/2011 31/10/1996 30/09/2011 3 Due date u/s.139(4) 31/03/2013 31/03/1998 30/03/2013 4 Investment made u/s.54B 24/03/2012 01/11/1996 22/08/2012 07/08/2012 5 Return of income filed (original) 19/12/2013 04/11/1996 30/03/2013 6 Return of Income filed u/s.148 25/03/2015 - - 6.2 Thereafter, the Ld. AR of the assessee submitted that the sub-ordinate Authorities have further denied the exemption u/s. 54B in case of assessee for reason that the eligible agriculture land has been purchased in the name of assessee's Sons. In this regard learned Assessing Officer has relied upon judgment of Hon'ble Bombay High Court in the case of Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e s group concern, in the case of Assistant Commissioner of Income Tax, Circle-1, Nashik Vs. Shri Bhima Dada Kharate, this issue was observed in detailed and it was held by the Co-ordinate Bench of the Tribunal that the applicability of amendment so far as Section 55A is concerned, it cannot be applicable retrospectively. The relevant part of the order is as under: 11. I have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. I have also considered the various decisions cited before us. I find the assessee in the instant case has sold a piece of land and has adopted the fair market value of the land as on 01-04- 1981 on the basis of the report of the approved valuer which was ₹ 2,80,705/- per acre. The AO made reference to the DVO who valued the fair market value as on 01-04-1981 at ₹ 1,94,852/- per acre. Since the fair market value adopted by the assessee on 01-04-1981 was higher than the fair market value adopted by the DVO, the AO computed the long term capital gain at ₹ 48,18,644/- as against ₹ 4,86,023/- declared by the assessee as long term capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair market value is substituted by the words is at variance with its fair market value is clarifactory and should be given retrospective effect. This submission is in face of the fact that the 2012 amendment was made effective only from 1 July 2012. The Parliament has not given retrospective effect to the amendment. Therefore, the law to be applied in the present case is Section 55A(a) of the Act as existing during the period relevant to the Assessment Year 2006-07. At the relevant time, very clearly reference could be made to Departmental Valuation Officer only if the value declared by the assessee is in the opinion of Assessing Officer less than its fair market value. 16. Once it is held by the Jurisdictional high Court that such amendment to provisions of section 55A(a) is not retrospective and prospective, therefore, merely because the AO has made a reference to the DVO after the date of such amendment for an assessment year prior to the amendment is a highly debatable issue. The Hon ble Supreme Court in the case of T.S. Balaram, ITO Vs. Volkart Brothers and Others reported in 82 ITR 50 has held that a mistake apparent on the record must be an obvious patent mistake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in his own name but the Legislature has not used specific language with precision and the Hon'ble Delhi High Court in CIT Vs. Kamal Wahal reported as 351 ITR 4 has also held that it can be in the name of wife. In that view of the matter contention raised by the assessee is required to be accepted with regard to section 54B regarding investment. In the case of Commissioner of Income Tax Vs. Gurnam Singh (supra.), the Hon'ble Punjab Haryana High Court held wherein the assessee sold an agricultural land and out of sale proceeds purchase another agricultural land in his name and in name of his only son, he claimed deduction u/s.54B, but the same was disallowed by the Assessing Officer on ground that land was purchased by assessee in the name of his son as co-owner. The Hon'ble Punjab Haryana High Court further observed that no substantial question of law arises for consideration since the Tribunal has recorded findings and dismissed the appeal of the Revenue. The Hon'ble High Court has held that the assessee had sold agricultural land which was used by him for agricultural purposes. Out of sale proceeds of the said sale, the assessee has purchased other piece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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