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TMI Blog2022 (7) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-B is highly objectionable. 5. The provisions of section 271(1) ( C) may be knocked off." 2. Facts giving rise to the present appeal are that the Assessing Officer was in possession of information that assessee had sold an immovable property for a sum of Rs. 3,20,34,000/-. Therefore, the assessment of the assessee was reopened u/s 147 of the income-tax Act, 1961 (in short "the Act") and a notice u/s 148 of the Act was issued. Thereafter, assessment u/s 143(3) read with section 147 of the Act was framed. Thereby the Assessing Officer made addition of Rs. 2,56,40,688/- on account of long term capital gains. Further, the Assessing Officer assessed the income at Rs. 2,45,89,870/- after giving deduction u/s 54F of Rs. 12,02,500/-. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals), who after considering the submissions dismissed the appeal. Aggrieved against it, now the assessee is in appeal before this Tribunal. 3. No one appeared on behalf of the assessee at the hearing. However, a letter from the assessee's counsel is on record stating that written submissions dated 21.09.2021 have already been filed. Therefore, we proceed to decide the appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial purposes. Here, it is not in dispute that the assessee truly carried out agricultural activities on the said land till its sale and through these activities he was earning agricultural income. For the year under consideration, the assessee had agricultural income of Rs. 16,000/- which has been duly accepted by both the Ld. AO and CIT(A). The agricultural land sold does not fall within the definition of capital assets u/s 2(14)(iii)(a)/(b) as the same is situated at Village - Ibrahimpur Junaidpur urf Maujpur which has population of 4,132 as per Population Census 2011. The agricultural land sold is also truly and firmly situated at a distance of about 5 to 6 Kms. from the municipal limit of Khurja out of the notified area up to a distance of 4 Kms. notified in respect of Khurja vide Notification No. SO 9447 dated 06.01.1994 issued in pursuance of sec. 2(14)(iii)(b). Both the Ld. AO and CIT(A) have considered the said agricultural land as a non- agricultural land as only the same was industrial land at time of the execution of sale- deed on 03.08.2009. Here, it is pertinent to mention that Khurja Master Plan 2021 is a plan-map only which merely represents comprehensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le proceeds of the said land. Here, it is submitted that in their said allegations, both the Ld. AO and CIT(A) have given emphasis on name i.e. Industrial Plot of the agricultural land sold and its measurement in square meters. Both the Ld. AO and CIT(A) have completely ignored the contention of the law as above discussed, in which emphasis has been given on the use of land. Here the law clearly specifies that identification of agricultural land depends on its use, if any land situated in India is being used for agricultural purposes. Hence, it may be concluded that whatever the name by which the land is called and measured is immaterial to ascertain that the particular land is agricultural land or not as identification of agricultural land depends on its use. No any provision of the Income-Tax Act, 1961 specifies that the nature of the land sold is to be ascertained by the saledeed executed. It is further submitted that for a land to be an agricultural land does not depend on its sale execution deed in which it was sold as an industrial land, rather it depends upon the use of land by the assessee. If the use of land is for agricultural purposes, it is sufficient to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural land at time of the execution of sale-deed on 03.08.2009. The Ld. CIT(A) has completely ignored that the land sold was an agricultural land at the time of execution of the agreement to sell duly signed and registered on 09.01.2009. The use of land sold was changed on and treated as industrial land for the purpose of sale-deed executed on only on the intention of the purchaser, since the purchaser had purchased the agricultural land for the use of non-agricultural, i.e., industrial purposes. Thus, the Ld. CIT(A) ought to have considered the date 09.01.2009 on which the agreement to sell had been executed by the assessee for transfer of the agricultural land. Here, there is an extinguishment of some rights in the land sold by the appellant in favour of the purchaser vide the agreement to sell dated 09.01.2009. The extinguishment of any rights also amounts to the transfer as per the definition of 'Transfer' vide section 2(47)(ii) of the I. T. Act, 1961. As the definition of 'transfer' vide section 2(47)(ii) of the I. T. Act, 1961, also includes 'the extinguishment of any rights in relation to a capital asset', and there is no doubt that here, there is an extinguishment of some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain". But the Ld. CIT(A) has not mentioned, even a single word, in his order regarding the fair value on 1.4.1981 @60/- per Sq. M. of the land sold taken to determine indexed cost of acquisition to compute thelong term capital gain. The Ld. AO has taken the same arbitrarily on an unknown case basis. In 1981, the circle rate of land situated at City Station nearby Village - Ibrahimpur Junedpur urf Maujpur was of Rs. 100/- to 125/- per Sq. M. as per the Schedule certified by the Sub-Registrar, Khurja [ Enclosed hereto Page No. 28 & 29 ]. Considering the said circle rate, ttie fair value on 1.4.1981 @ Rs. 125/- per Sq. M. of the land sold should reasonably be taken to determine indexed cost of acquisition to compute the long term capital gain, if calculated. REGARDING GROUNDS NO. 4 and 5 : It is submitted that these grounds of appeal are consequential in nature, please direct accordingly". 4. Learned Sr. DR opposed these submissions and supported the orders of authorities below. Learned Sr. DR submitted that there is no dispute regarding the fact and the assessee himself has admitted that the land use of the property in question was changed. The assessee has laid much stress on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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