TMI Blog2020 (4) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 1976 at the disposal of the SMC to acquire the land under section 77 of Bombay Provincial Municipal Corporation Act, 1949 for erection of Sewerage Treatment Plant. Thus, it was a case of compulsory acquisition of land for which the SMC under the instruction of Government of Gujarat for which the SMC has also given a certificate dated 12.08.2010 [letter no. ACT/SR/NO2861] wherein nature of payment to the assessee is described against compulsory acquisition of land at Dindoli. In the case of ITO v. Dipak Kalidas Pauwala [ 2015 (8) TMI 1268 - ITAT AHMEDABAD] 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 meaning for public purpose within the meaning of Land Acquisition Act , 1894 (I of 1894) and eligible for exemption under section 10(37) . Also confirmed by HC [ 2016 (4) TMI 431 - GUJARAT HIGH COURT] Thus we hold that the land in question was compulsory acquisition by the SM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisition of impugned agricultural land by Surat Municipal Corporation (SMC) eligible for exemption under section 10(37) of the Act .The sum in substance these grounds relates to not allowing long-term capital gain as exemption under section 10(37) of the Act arising in respect of land acquired under compulsory acquisition by Surat Municipal Corporation (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. 4. Brief facts are that the assessee along with other coowners has sold immovable property on 29.09.2008 for ₹ 3,80,40,000 in which assessee`s share was 1/3rd which worked out to ₹ 1,26,80,000.. Therefore, the AO has considered the long-term capital gain accrued in A.Y. 2009-10. The filed original return of income on 31.03.2012. A notice under section 148 of the Act was issued. The assessee replied the original return of income filed may be treated as filed in response to notice under section 148 of the Act of the Act. The assessee has claimed that land was compulsory acquisition by SMC hence, thereon is exempt under section 10(37) of the Act. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction between SMC and the assessee / group of the assessee. The CIT (A) has also distinguished the decision of tribunal in the case of ITO v. Shri Dipak Kalidas Pauwaala in the name 2685/Ahd/2011 relied by the assessee on the ground that that there are contradictory certificate from Day Commissioner (P D) SMC Resolution and negotiation. However, 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. 6. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee 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 referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the assessee has relied in the case ITO v. Shri Dipak KalidasPauwaala in the name 2685/Ahd/2011 wherein the decision of it was held that the 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 meaning for public purpose within the meaning of Land Acquisition Act , 1894 (I of 1894) and eligible for exemption under section 10(37) of the Act. This decision of Tribunal was also confirmed by the Hon`ble Jurisdictional High Court of Gujarat in [ Tax Appeal No. 249 of 2016 dated 28.03.2016] . 7. The learned counsel for the assessee further relied in the case of Balakrishnan v. Union of India Others [ Civil Appeal No. 1607/2010 dated 11.01.2017 wherein it was held as under: It is in the aforesaid factual backdrop, this Court is to determine as to whether it can be treated that the land of the appellant was compulsorily acquired. From the facts mentioned above, it becomes apparent that the initiated by invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount is agreed upon would not change the character of acquisition, from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down ever, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory. 8. Per contra, the ld. Sr. D.R. relied on the order of the lower authorities and contended that execution of sale deed with SMC. Does not amount to compulsory acquisition. Further, the sale was voluntary and not under compulsory acquisition as the SMC does not have power to acquire land under compulsory acquisition unless approval of statement government is taken. Hence, CIT (A) was right to confirming the action of the AO in disallowing the exemption. 9. We have heard the rival submissions and perused the relevant material on record. We find that the AO has disallowed the claim under section 10(37) of the Act on the ground that the assessee has sold the land voluntarily, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P UD Act, 1976 as the land needed for the purpose of Town Planning Scheme or Development Plan shall be deemed to be meaning for public purpose within the meaning of Land Acquisition Act , 1894 (I of 1894) and eligible for exemption under section 10(37) of the Act. This decision of Tribunal was also confirmed by the Hon`ble Jurisdictional High Court of Gujarat in Tax Appeal No. 249 of 2016 dated 28.03.2016. Therefore, respectfully following the decision of Coordinate Bench in the case of ITO v. Dipak Kalidas [I.T.A.No. 2685/Ahd/2011 dated. 14.08.2015 (PB-26-34) which has been confirmed by the Hon`ble Jurisdictional High Court of Gujarat in Tax Appeal No. 249/ 2016 dated. 28.03.2016(PB-19-25), we hold that the land in question was compulsory acquisition by the SMC under the direction of Government of Gujarat. Hence, conditions stipulated in section 10(37) is satisfied. In view of above facts and circumstances, land was compulsory acquired by SMC, hence, conditions as laid down in section 10(37) are duly satisfied. Reliance is placed on the judgements of Hon ble Gujarat High Court in the case of CIT v. Amrutbhai S. Patel Tax Appeal No. 355 of 2013 dated 15.04.2013 of Hon ble Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant for the land which had been acquired. It goes without saying that had steps not been taken by the Government under Sections 4 6 followed by award under Section 9 of the LA Act, the appellant would not have agreed to divest the land belonging to him to Techno Park. He was compelled to do so because of the compulsory acquisition and to avoid litigation entered into negotiations and settled the final compensation. Merely because the compensation amount is agreed upon would not change the character of acquisition, from that of compulsory acquisition to the voluntary sale. It may be mentioned that this is now the procedure which is laid down ever, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per which the Collector can pass rehabilitation and resettlement award with the consent of the parties/land owners. Nonetheless, the character of acquisition remains compulsory. 11. Accordingly, the assessee is eligible for exemption under section 10(37) of the Act. Consequently, the AO is directed to allow exemption under section 10(37) of the Act. In view of this, ground of appeal of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
