TMI Blog2020 (3) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the assessee, regarding land of 700 sq. ft. covering his residence, has been brought up only at the present stage. It did not see the light of day at any earlier stage before any of the authorities below, nor is any evidence with regard thereto forthcoming. Therefore, this claim is not available to the assessee. In view of the above, we accept the grievance of the assessee, to the above extent, to be justified. The long term capital gain is, therefore, directed to be calculated and levied accordingly. - ITA No.28/LKW/2016 - - - Dated:- 19-3-2020 - Shri. A. D. Jain, Vice President And Shri B.R.R. Kumar, Accountant Member For the Appellant : Shri K.R. Rastogi, C.A. For the Respondent : Shri Ajay Kumar, D.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the land was not agricultural land; that it had been defined as industrial land in the sale deed; that a rice mill was located above the said land and commercial activity was being conducted thereat. The assessee filed reply dated 23/1/2014, stating that the rice mill was not in a running condition; that the nature of the land had never changed from that of agricultural land; that right from the date of its acquisition, till the date of its sale, it had been registered in the land revenue record as agricultural land. 3. Rejecting the assessee s stand, the Assessing Officer observed that when the land had been used for rice mill plant, the nature of the land obviously had got changed; that the building, godown and plant machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged in the subsequent year; that undisputedly, the nature of the land was also shown as commercial in the relevant sale deed; and that the factum of the rice mill plant and plant machinery having been sold during the year goes to prove that the land was not agricultural in nature. 7. Heard. The details of the land purchased, as given by the assessee are as follows: Sr. No. Date of purchase Financial Year Assessment Year Gata No. Rakba in Hectare Amount 1 26/03/1996 1995-96 1996-97 375 0.582 100000.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shown to exist over 8800 sq. ft. Further, as per the order (APB:10) of the Tehsildar, Bhu Rajsva stands deposited for the years 2008 to 2011. 10. In view of the Khatauni/Khasra, the presumption with regard to which revenue record has not even been referred to, much less rebutted by either of the taxing authorities, and Tehsildar s order, the cultivation of crops over the land cannot be doubted. The objection of the authorities below is that immediately on setting up of the rice mill plant, the land use got automatically changed. It is pertinent to mention here that even the assessee himself does not dispute the levy of capital gain. It is, however, his contention that this long term capital gain should be restricted to the land lying b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. As per the revenue record, as above, the crops of wheat and paddy are cultivated on the agricultural land. There is no adverse finding recorded by the either of the authorities below qua this, though, without basis and in oblivion of this revenue record, the Assessing Officer observed that no agricultural activity was carried out. Even in the sale deed, at page 12 (APB:22) thereof, the factum of carrying on of agricultural activities, is noted. 14. Further, the sale deed is dated 28/5/2010. The conversion of the land for non-agricultural purposes was applied for on 5/8/2011, as contended by the assessee. The assessment order, however, is dated 22/12/2011. 15. In CIT, Chennai vs. Ashok Kumar Rathi , 89 taxmann.com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneath the rice mill, measuring 8800 sq. ft., on which long term capital gain is exigible. The contention of the assessee, regarding land of 700 sq. ft. covering his residence, has been brought up only at the present stage. It did not see the light of day at any earlier stage before any of the authorities below, nor is any evidence with regard thereto forthcoming. Therefore, this claim is not available to the assessee. 19. In view of the above, we accept the grievance of the assessee, to the above extent, to be justified. The long term capital gain is, therefore, directed to be calculated and levied as under: Sale consideration of 8800 sq. ft Sale value at hand ₹ 71,25,056.00 X 8800 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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