9911796707
TMI Blog2023 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had shifted his residence and thus did not receive any notices issued to him in course of the assessment proceedings under the facts and in the circumstances of the appellant's case. 4. The learned CIT(A) ought not to have refused to allow the exemption claimed u/s. 54B of the Act on the ground that the appellant had not filed ITR or furnished details before the AO with regard to the reinvestment made under the facts and in the circumstances of the appellant's case. 5. For the above other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 2. The brief facts of the case are that as per the information available with the Department the assessee entered into Development Agreement with the Developer Shri R.Veeresh, residing in Mysore. As per the agreement executed on 01.03.2006, the assessee transferred five acres of land situated at Survey No.351, Hanchya Village, Kasaba Hobili, Mysore. From the verification of records, it was observed that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal. 5. The ld.AR submitted that being an agricultural person, the assessee was not aware about the proceedings of the Income tax Act. Therefore, he could not file return of income within due date specified and he also submitted that for claiming exemption u/s 54B the assessee was required to file return of income. The assessee purchased two agricultural lands on different dates which are qualified for exemption as per the section 54B of the I.T.Act. Therefore, merely non filing of return of income, the exemption should not be denied to the assessee. He filed paper book containing page Nos. 1 to 57 and these all documents were submitted before the ld.CIT(A)/NFAC as per the certification in the paper book. The ld.AR also submitted that it is a beneficial provision to the assessee for giving exemption, he also submitted that for getting exemption u/s. 54B of the Act, nowhere sated in the section that filing of return of income is mandatory & he requested that the matter should be send back to the AO for verification of purchase of agriculture land for giving exemption as per section 54B of the Act. . 6. On the other hand, the ld.DR relied on the order of the lower au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of Section 54B of the Act for ready reference. "54B.: Capital gain on transfer of land used for agricultural purposes not to be charged in certain cases. (1) [Subject to the provisions of sub-section (2), where the capital gain arises] from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes [(hereinafter referred to as the original asset)], and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,-- (i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 03.05.2010 pleaded that he is eligible for exemption u/s 54B of the I.T.Act as he has invested the capital gain from sale of land used for Agricultural purposes for purchase of any other land for being used for agricultural purpose. Accordingly, the assessee claimed that he has purchased an agricultural land in Moodabidri. However, on perusal of the sale deed for purchase and sale of Adya land, it is noticed that the assessee sold this land within two years from the date of its purchase. The date of purchase of this land was 03.09.2002 and date of sale was 15.07.2004. Therefore, the assessee was holding this land for one year and 315 days only. As per the provisions of section 54B of the I.T.Act, the assessee or the assessee's parents have to use the land for agricultural purposes for a minimum period of two years. Here in this case, the assessee has not used the land for agricultural purposes for a minimum period of two years before its sale. Moreover, from the expenses incurred as reproduced above, it can be proved that the said land was never used for agricultural purposes after it was purchased by the assessee as the assessee was concentrating on its improvemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption u/s. 54B of the I.T.Act, but this fact has not been examined by the any of the authorities below. The ld.DR has raised the point that the assessee is not eligible for getting exemption on investments in new asset because he did not file his return of income within the due date as per the amendment in sixth Proviso of section 139(1). 8.1. I observed on the amendment in section 139(1) of sixth Proviso, section 54, section 54B or section 54D or section 54EC or section 54F or section 54G or section 54GA or section 54GB were inserted by the Finance Act, 2019 which is effective from 01.04.2020, but the impugned case on hand is related to the AY 2006-07. It indicates that the exemption u/s 54B can be claimed without filling of return of income , now it has been amended by the Finance Act. 2019. Therefore, the arguments advanced by the ld. DR. will not support the case of the revenue regarding compulsory filing return of income for getting exemption u/s. 54B of the I.T.Act r.w.s. 80C & 139(1). Considering the totality of the facts of the case, issue is remitted back to the file of the AO for the purpose of verification whether the assessee has fulfilled the conditions of section 54B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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