TMI Blog2020 (5) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... n the factual findings of the Tribunal where it held that the land was transferred in the name of JDA in year 2008 on the basis of Khasra Girdwari which reflects the name of the JDA as the owner of the land. The basis of arriving at finding by the Coordinate Bench in A.Y 2009-10 that the capital gains is chargeable to tax in A.Y 2010-11 was on account of fact that the compensation was received by the assessee on 20.11.2009 and on that account, it was held that the capital gains shall be chargeable to tax in the A.Y 2010-11. The same cannot be taken as basis for stating that the assessee was owning and using the land till the date of allotment. Tribunal in case of ITO Vs. Smt. G.S. Lekha (2019 (4) TMI 1783 - ITAT COCHIN) Agricultural officer has certified the land to be agricultural land unlike in the present case where the land records show no agricultural operations were carried on the said land prior to the date of transfer. Therefore, the said decision doesn t support the case of the assessee. While holding so, the Tribunal has not considered the Khasra Girdawari for samvat year 2065 (2008) which shows cultivation of 50 amla trees. Thus, the agricultural operations were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the misc. application so filed by the assessee deserve to be dismissed. 4. We will take each of the issues raised by the assessee in his misc. application. Firstly, it has been contended that in Para 23 24 of the Tribunal s order, it is stated as under:- Given the size of plot of land measuring 0.26 hectares and 1.01 hectares respectively which has been acquired by JDA along with building constructed thereon, even assuming that there are amla trees prior to date of transfer, mere presence of 50 Amla trees on a part of land would not make the whole of the land as being used for agricultural purposes as the language used in section 10(37) is as under: such land, during the period of two years immediately preceding the date of transfer, was being used for agricultural purposes by such Hindu undivided family or individual or a parent of his. This being an essential and fundamental condition for availing exemption u/s 10(37) has to be construed strictly and in that sense, the phrase such land means the whole of the land being used for agricultural purposes. The same cannot be read and understood as such land or a part thereof where even a part of land is us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, section 10(37), both the parties are free to advance their arguments, however, after considering the said arguments as noted in Para 15 of the order where the ld AR has contended that in context of section 10(37), the dispute is whether the land was used by the assessee for agricultural purposes during the two years immediately preceding the date of transfer or not , the Bench has arrived at and adopted an interpretation of the said provision in the context of assessee s facts and its appreciation of the said provisions, it cannot be expected that Bench before taking such a view should confront both the parties again and in that case, there would not be any end to such a process. It is not a case where any decision of a higher authority has been relied upon by the Bench in which case, it can be expected that both the parties should be given an opportunity. The decision of the Coordinate Bench in case of Rajendra Bastimal was rendered in context of section 54B and in any case, not brought to the notice of the Bench at the time of hearing and thus, doesn t support the case of the assessee. The fact that assessee only holds 1.01 hectare of land bearing Khasra No.364/1 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same cannot be taken as basis for stating that the assessee was owning and using the land till the date of allotment. 9. Now, coming to the third issue raised by the assessee in his misc. application. In this regard, the ld AR drawn our reference to Para 22, Pg 17 of the Tribunal and submitted that the assessee has relied on the decision of Cochin Bench of the Tribunal in case of ITO Vs. Smt. G.S. Lekha (2019) 180 DTR 249 (TM). In that case, the Agricultural officer has certified the land to be agricultural land unlike in the present case where the land records show no agricultural operations were carried on the said land prior to the date of transfer. Therefore, the said decision doesn t support the case of the assessee. While holding so, the Tribunal has not considered the Khasra Girdawari for samvat year 2065 (2008) which shows cultivation of 50 amla trees. Thus, the agricultural operations were carried on the land prior to the date of transfer. Existence of amla trees is itself a proof of cultivation. Further, in the present case there is no dispute that land is an agricultural land. Hence, distinguishing the case laws relied by assessee by assuming incorrect facts is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Khasra Girdawari for samvat year 2064 (2007) clearly states that no agricultural activities were carried out on impugned land and the land was lying vacant for 4 years. This finding is incorrect in as much as the Khasra Girdawari for samvat year 2065 shows cultivation of 50 amla trees. Amla trees cannot be grown in a year. It takes 3-4 years. The caretaker Sh. Laxman Singh and Rameshwar Chaudhary in their affidavit have also stated that around 100 amla trees was grown in year 2005 out of which only 50 amla trees remains as on date. The Hon ble ITAT did not accept these affidavits by holding that these are self serving documents. However, while holding so it was ignored that Sh. Laxman Singh and Rameshwar Chaudhary in their statement recorded u/s 131 on 07.02.2017 have also admitted the fact of carrying out the agricultural activity on the land. Further, the Hon ble ITAT has also not considered the other evidences filed by the assessee like electricity bills for the year 2005 to 2007 where category of connection is mentioned as agricultural meter, the electricity bills paid which indicates that agricultural operations were carried out on the land and photographs of agriculture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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