TMI Blog2022 (10) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee had admitted that the Sale Deed was executed and related to the industrial plot. Therefore, see no merit in the submissions of the assessee that the land in question would not fall within the character of capital asset. Thus, grounds raised by the assessee are partly allowed. - ITA No. 1159/Del/2020 - - - Dated:- 22-9-2022 - SHRI KUL BHARAT , JUDICIAL MEMBER Appellant by : None Respondent by : Shri Om Prakash, Sr.DR ORDER PER KUL BHARAT , JM : The present appeal filed by the assessee for the assessment year 2009-10 is directed against the order of Ld. CIT(A), Aligarh dated 15.12.2017. 2. The assessee has raised following grounds of appeal:- 1. That the Ld. CXT(A) has erred in sustaining the assessment order without considering the facts and circumstances of the case. 2. That the Ld. CIT(A) has erred in law and on facts in holding that the land sold by the appellant was a capital asset u/s 2(14) of the 1. T. Act, 1961. 3. The Ld. CIT(A) has erred in ignoring the fact that the Agreement to Sell which is registered, was made on 30.07.2008. Therefore, the date of agreement must be treated as date of transfer under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been filed. Thereafter, he approached other Counsel to do the needful who after receiving the requisite papers, filed the present appeal. It is further stated that due to spread of Corona Pandemic, the effective actions could not be taken and hence, the assessee has a reasonable cause for not filing the appeal at time. 5. On the contrary, Ld. Sr. DR opposed these submissions and stated that the assessee has been thoroughly negligent throughout the proceedings. He ought to have been vigilant about his affairs. Now, he cannot take advantage of his own negligence. 6. I have heard Ld. Sr. DR and perused the material available on record. It is not in dispute that the assessee was required to file the present appeal in the year 2018 itself. However, the contention of the assessee is that he did not receive the impugned order which was received by Ld.AR on 19.12.2017. The factum of passing of the impugned order came to be known only when the notice u/s 271(1)(c) of the Act was received. It is also correct that the country has been facing spread of Corona Pandemic since March 2019. There had been lot of panic and loss of lives, people were in grip of tear and uncertainty. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain on such transaction. 12. I have heard Ld. Sr. DR and perused the material available on record and gone through the orders of the authorities below. The assessee before the authorities below had taken twin objections against the computation of capital gain. Firstly, that the land so sold was out of purview of capital asset being an agricultural land and Secondly, that the authorities below failed to give benefit of section 54F of the Act in respect of construction of residential house and also acquiring agricultural land. For the sake of clarity, the submissions of the assessee before Ld.CIT(A) are reproduced as under:- 4. In response to the notices issued for hearing the appeal, Shri Vivek Agrawal, C.A. appeared as the authorised representative of the appellant and filed the following written submission in support of the appellant s case:- - The assessee has sold agriculture land of Rs. 61,33,650/- (Rs. Sixty One Lacs and Thirty Three thousands and Six Hundred Fifty Only.) And title deed executed in favour of Arshiya International Limited dated 23-08-2008 situated at Village Ibrahimpur Junedpur Urf Maujpur. The agreement to sale, was made on 30-07-2008. The consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial as the same is mentioned in revenue records produced before him and the assessee is regular in fanning agriculture till the date of transfer. - The agreement to sale was made on 30-07-2008 and as pre condition, the land use was changed on 05-08-2008 while the title deed was executed on 23-08-2008. The land use was changed for the buyer only. The buyer never used the land for purpose other than agriculture till the date of transfer of land. - Mere change in land use in revenue records just before few days the date of transfer cannot be regarded that the land was industrial. The assessee was under bonafide belief sold the land. - The learned A.O. taken Rs. 60/- per meter as cost of acquisition and the base for adopting the same does not provided to us. - The learned Assessing Officer treated the sold land as ancestral industrial plot does not give any meaning as how he treated the ancestral land as ancestral industrial plot as there were no facility developed by the government till today. The learned A.O. did not provided the reason for treating the land as industrial and order of A.O. is against the principal of natural justice and the order is not a spea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty were not made by him. - The learned assessing officer was not justified in disallowing the exemption for agricultural income on such agricultural plot on regular basis and same was shown under income tax return. Further, agricultural plot situated beyond the notified area and covered under definition of agricultural land (Khasra copy enclosed for your ready reference). In view of the aforesaid the learned Assessing officer was totally unjustified in disallowing of a sum of Rs. 49,00,524/- on account of long term capital gain, by incorrectly assuming the same to be a capital Asset within the meaning of Section 2(14) of the income tax Act. While sale consideration received by appellant from agriculture plot were not chargeable to tax and as such disallowance made is illegal, invalid, hence untenable. The conclusion of learned Income Tax Officer that appellant has sold industrial plot and he is not entitled to any exemption is based on fundamental misconception of facts of the appellant, misinterpretation of provision of law. In view of the aforesaid the learned Assessing Officer was totally unjustified in disallowing the exemption for agricultural land. ..... 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