TMI Blog2023 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... g his claim before the AO and further directed not to seek unnecessary adjournments for early disposal of case. The AO shall give three effective opportunities to the assessee and decide the issue as per law. Appeal of the assessee is allowed for statistical purposes. - ITA No.1080/Bang/2022 - - - Dated:- 8-2-2023 - Shri Laxmi Prasad Sahu, Accountant Member For the Appellant : Sri V.Srinivasan, Advocate For the Respondent : Sri Ganesh R.Ghale, Standing Counsel ORDER PER LAXMI PRASAD SAHU, AM : This is an appeal by the assessee is directed against the order of the National Faceless Appeal Centre (NFAC), Delhi, DIN Order No. ITBA/NFAC/S/250//2022- 23/1047150003(1) dated 09.11.2022 for the assessment year 2006-07. On the following grounds of appeal:- 1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The authorities below are not justified in completing the assessment and appellate proceedings without giving sufficient and effective opportunity to the appellant and therefore, the orders passed by them deserves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as transfer in terms of section 2(47)(v) of the I.T.Act. The AO also relied on the judgment of the Hon ble Supreme Court in the case of Chaturbhuj Dwarkadas Kapadia vs. CIT (2003) reported in 266 ITR 491. Since no any document was filed by the assessee for determination of the cost of acquisition, the AO made reference to the Sub Registrar to obtain copy of the purchase deed. The Sub Registrar, North Mysore, Mysore vide letter No ./RGN/261/2013-14 dated 26.02.2014 forwarded copy of the purchase deed, as per the deed the assessee purchased the property on 29.09.2005 for sale consideration of Rs.7,50,000/-, accordingly, the cost of acquisition benefit of the property determined by the AO at Rs.8,25,585/- short term capital gain was determined at Rs. 26,99,420/-. 3. Aggrieved from the above order, the assessee filed appeal before the ld.CIT(A)/NFAC. Before the ld.CIT(A)/NFAC, the assessee filed written submission claimed exemption from the capital gain u/s. 54B of the I.T.Act. The ld.CIT(A)/NFAC, Delhi issued show-cause notice on 13.10.2022 requiring the assessee to respond on or before 28.10.2022, but the assessee did not respond till date of order. Accordingly, he con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced as oer the paper book page No.46. He further submitted that as per the paper book page no.22, the sold property was dry agricultural land. Therefore, it cannot be said that the land sold purchased by the assessee were the agricultural lands and fulfills the conditions as per section 54B of the I.T.Act. Therefore, the assessee is not eligible for exemption as per section 54B of the I.T.Act. In support of his argument, the ld. DR relied on the following judgment of the Jurisdictional High Court of the Karnataka in the case of Gopal S.Pandit vs. CIT in ITA No.34/2017, order dated 25.06.2018, he referred to para No.9 to 12 which is as under- 9. The second issue raised by the learned Counsel for the Assessee is with regard to claim of deduction u/s. 54B of the Act with regard to sale of agricultural land by him. The Authorities below have found against the Assessee that since the land in question situated at Adyar Village, Mangalore, sold by the Assessee in the relevant period was never used as agricultural land, for a period exceeding two years, therefore the Assessee was not entitled to the benefit of deduction u/s. 54B of the Act. For this reason also, the said finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of subsection (1), the amount, if any, already utilised by the assessee for the purchase of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub-section is not utilized wholly or partly for the purchase of the new asset within the period specified in subsection (1), then,-- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance 10. It would be also appropriate to quote the findings of the Assessing Authority in this regard, who has clearly found that the land in question was not used as agricultural land for a period of more than two years. 5.9.1. Disallowance of exemption claimed u/s 54B of the I.T.Act. 5.9.2. In the return of income filed, the assessee compute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it has been mentioned as Dry Agriculture Land in the sale deed , in fact it was agriculture land, therefore, the allegation made the ld. DR is baseless. The case law relied by the ld. Dr is distinguishable on facts of the present case. 8. After hearing both the sides and perusing the entire materials on record and order of the authorities below, it has been observed that assessee transferred five acres of land situated at Survey No.351, Hanchya Village, Kasaba Hobili, Mysore for consideration of Rs.35,25,000/- to Shri R.Veeresh and the JDA( joint Development Agreement) was executed as per the terms conditions set out therein. There is no dispute that the property has been transferred within the meaning of section 2(47)(v) of the I.T.Act. The assessee did not file his return of income for the relevant assessment year at all and in the assessment proceedings the assessee also did not appear before the AO. Before the ld.CIT(A)/NFAC, he filed additional documents as well as for the purchase of new agricultural lands (Deed of Sale dated 10.03.2006 25.09.2008) for claiming exemption u/s 54B of the Act. Since the assessee did not file return of income, therefore, the CIT (A) di ..... 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