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TMI Blog2018 (8) TMI 1946X X X X Extracts X X X X X X X X Extracts X X X X ..... ration (SMC). In view of these facts and circumstances, these grounds of appeal are being considered together as common ground for the sake of convenience and brevity. 3. Brief facts are that the assessee along with other co-owners has sold immovable property on 01.04.2008 for Rs. 6,04,00,000. However, the sale deed was registered on 01.04.2008 but date of conveyance is 31.03.2008. Therefore, the AO has considered the long-term capital gain accrued in A.Y. 2008-09. It was claimed before the AO that land pertains to Rameshchandra Babubhai Nagarsheth HUF, and not in his individual capacity. However, the AO observed that copy 7/12, sale deed executed with SMC, and Panch Karar clearly mentioned the name of Shri Navinchandra Babubhai Nagarsheth, Shri Jasgdishchandra Babubhai Nagarsheth and Shri Rameshchandra Babubhai Nagarsheth confirmed the fact that land belongs to three individuals who have signed the sale deed and these document contained their name in their individual capacity. The AO further observed that said land was not used for agricultural purpose during F.Y. 2005-06 and 2006-07. The AO also observed that land was acquired by SMC at Dindoli for sewage treatment plant and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (A) of the view as per hat section 77 of Bombay Provincial Municipal Corporation Act, 1949, the SMC is not competent to make compulsory acquisition and it only competent to make recommendation to government. Therefore, the assessee has neither done agricultural operations before two years nor the case if of compulsory acquisition hence, the assessee is held to be not entitled for exemption under section 10(37) of the Act. 5. Being, aggrieved the assessee filed this appeal before the Tribunal. The appellant appeared in person before us and submitted that the agricultural land was compulsory acquired by the SMC under section 77 of BPMC Act and who had full power and authority given by the Central Government for acquisition of immovable property and was declared trustee & custodian of the said acquired property. The appellant has referred the letter no. TBT/OUT/4089/22 dtd. 23.09.2014 by which the land was placed under reservation under Government of Gujarat vide Notification No. GH/V/100 of 2004/DVP/1403/3307/L dtd. 02.09.2014 as reproduced by the CIT (A) in his appellate order. The appellant further relied on the letter No. ACT/SR/NO.286 dtd. 12.08.2010 from SMC wherein it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available even in case of a land situated in municipal area. But that the other conditions, namely of the cultivation of such land by the assessee would crucial." Thus, it was contended that exemption under section 10(37) would be available even if the land is situated in municipal area and being not cultivated by the assessee himself but by the tenants. The appellant further supported his view that by placing reliance on the order dated 19.11.2015of CIT (A)-II, Surat, in the case of Smt. Urmi Nilesh Nagarsheth, [CAS/2/248/2015-16] relative of the assessee and co-owner of the part of same land situated at Dindoli wherein the ld. CIT (A) has accepted the contention of the assessee that it is a case of compulsory acquisition and where agricultural operations were being carried on and allowed the appeal of that assessee in similar circumstances. ( copy placed Page No. 36-43 of Paper Book). Similarly, the appellant relied in the case of Shri Navinchandra Baubhai Nagarsheth, another co-owner of same land wherein the CIT (A)-3, Surat vide his order dtd. 19.10.2016 has allowed the appeal by following decision of CIT (A)-II Surat in the case of Urami Nagarsheth as well as decision of ITAT- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land on rent. The Hon'ble Gujarat High Court in the case of CIT v. Amaratbhai S. Patel [Tax Appeal No. 355 of 2013] (copy of order placed at Page No. 52 to 56 of Paper Book) held that for the purpose of section 10(37) it is not required that the assessee himself should carry out the agricultural operations on the land. The appellant referred para 8 of said order which states that " In view of the above provisions, as noted , the Revenue contended that the assessee would not be entitled to that exemption since the agricultural land was not cultivated by the assessee himself. We may recall that CIT (Appeals) was himself convinced that such exemption would be available even in case of a land situated in municipal area. But that the other conditions, namely of the cultivation of such land by the assessee would crucial." Thus, we find that the land in question was being cultivated by the Ganotias on behalf of the assessee, but they have not paid any rent to the assessee hence, the agricultural income was not reflected in income-tax return of the assessee. But, this cannot be reason for disallowance on the ground that land in question was not agricultural land. We further find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 in the case of Smt. Urmi Nilesh Nagarsheth, CAS/2/248/2015-16 relative of the assessee and co-owner of the part of same land area situated at Dindoli, wherein the ld. CIT (A) has accepted the contention of the assessee that it is a case of compulsory acquisition and where agricultural operations were being carried on and allowed the appeal of that assessee in similar circumstances. (copy placed Page No. 36-43 of Paper Book). Similarly, the appellant relied in the case of Shri Navinchandra Babubhai Nagarsheth, another coowner of same land wherein the CIT (A)-3, Surat vide his order dtd. 19.10.2016 has allowed the appeal by following decision of CIT (A) -II Surat in the case of Urmi Nagarsheth as well as decision of ITAT- D- Bench, Ahmedabad in the case of ITO v. Dipak Kalidas Pauwala in I.T.A.No. 2685/Ahd/2011 dtd. 14.08.2015 wherein the Tribunal has held the that said land in Dindoli ( at Block no. 305) was acquired by SMC for sewerage Treatment Plant are agricultural land which has been compulsory acquired by SMC under the provision of section 107 of GTP & UD Act, 1976 as the land needed for the purpose of Town Planning Scheme or Development Plan shall be deemed to be meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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