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TMI Blog2022 (10) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... stered 'Agreement to Sell'. Therefore, as on the date of sale of the land on 30.07.2008, the land sold was an agricultural land. 4. That the Ld. CIT(A) has erred in not considering the fact that the appellant did not put the land to any other use except agricultural purposes till the sale of land. 5. That on the facts and circumstances of the case as well as in law, the both Ld. AO and CIT (A) have erred in completely ignoring the deduction u/s 54F of the Income Tax Act, 1961 towards the investment in the 'Construction of House Property'. The approved Valuation report was also not considered by both the Ld. AO and CIT (A). 6. For these and other grounds, which may be urged at the time of the hearing, the appeal may be allowed and justice rendered." 3. At the time of hearing, no one attended the proceedings on behalf of the assessee. It is seen from the records that there is no representation on behalf of the assessee since 29.04.2021 despite various notices were issued on different dates to the assessee. Lastly, the notice was issued on 22.06.2022 fixing the date of hearing 18.08.2022. On the date fixed for hearing, no one attended the proceedings on behalf of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Collector of Land Acquisition vs Mst . Katiji & Ors. 167 ITR 471, I am of the considered view that the assessee had a reasonable cause for not filing the present appeal within the prescribed time. I hereby, condone the delay and admit the present appeal for hearing. FACTS OF THE CASE 8. Facts giving rise to the present appeal are that in this case, the Assessing Officer ["AO"] was having an AIR information about the sale of immovable property [M/s. Arshiya Rail Infrastructure Ltd.] for sale consideration of Rs.61,33,650/- and valued by Stamp Valuation Authority at Rs.75,30,000/-. Therefore, the case of the assessee was re-opened u/s 147 of the Act and notice u/s 148 of the Act was issued on 18.03.2016 thereafter, various notices were issued to the assessee. However, in response to the notices dated 28.07.2016, the Ld.AR of the assessee attended the proceedings on 11.08.2016. The AO issued another notice dated 05.09.2016 calling upon the assessee as to why the capital gain should not be charged at the deemed sale consideration of Rs.75,30,000/- under capital gain income. In response to the show cause notice, Ld. AR of the assessee attended the proceedings and filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Five Lacs and Thirty Thousand Only) although the assessee has objected the value adopted by A.O. - The whole village was under Chakwandi. - The land was situated approx 5.3 Km from the Khurja Municipality (Distance Certificate is attached.) - The land use was changed in the revenue record dated 05.08.2008 vide order of SDM Khurja. - The assessee is a farmer and his income arises from agriculture produce. - The title deed was executed for the industrial use of the intended buyer only. The assessee is never used the land for the purpose other than agriculture. - The land use was changed solely for intended buyer. - The consideration received is invested in construction of residential house about Rs.30,00,000/- and purchase of agriculture land. Valuation Report from Income Tax Approved Valuer is attached. - The land was used by him and his ancestors for farming only. It was an ancestral land. - The assessee is a farmer and his income arose from agriculture which is Cleary mentioned in the return of Income and Khasra Produced. Grounds of Appeal - During the above financial year the assessee has sold an agricultural land and The asset was used for agri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any infrastructure development thereon or without establishing and proving that the land was put into use for non-agricultural purposes does not and cannot covert the agricultural land into non-agricultural land. (Reliance is placed on Haresh V. Milani V JCIT (2008) 114 ITD 428 (Pune). - The assessee has invested the sales consideration received in of residential house property and agricultural land and the same fact also not considered while making assessment. (Copy of title deed enclosed). The submissions were given before the learned A.O. that the assessee has invested the sale proceeds of Rs.30.00 Lakh in construction of residential house and the same was not allowed to the assessee while making the assessment. (However Valuation Reprot of Rs.19,18,000/- Income Tax Approved Valuer of Mr. Mridul Kuamr is hereby attached. - The learned A.O. presumed the land as ancestral and also the title deed mentioned the same fact. How it could be possible that the land was ancestral industrial plot since it was never used for purpose other than agriculture. At the time of sale there was no surroundings wall and no industrial activities found. How can we say that the land was industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as under:- 5. 2 Decision "This ground is against the assessment of capital gain of Rs. 49,00,524/-. In this regard, it has been explained that though in the sale deed the land has been declared to be an industrial plot, it was actually an agricultural land. Therefore, it has been argued that no capital gain can be assessed on the sale of the land. It has also been explained that the land in question is situated at a distance about 5.3 Kms from the municipal limit of Khurja and hence it does not qualify to be declared a capital asset u/s 2(14) of the IT Act. I have considered all the facts as are available on the record. It is seen that the appellant had entered into an 'Agreement to sell' with M/s Arshiya International Ltd. for sale of the land in question on 30.07.2008. Thereafter, the land-use was changed on 05.08.2008 and the land was declared to be a non agricultural land, subsequently, the sale deed was executed on 23.08.2008. It is important to note that the possession of the land was not handed over when the aforesaid 'Agreement to sell' was made. The possession was given only when the sale deed was executed on 23.08.2008. Thus, it can be concluded that the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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