TMI Blog2023 (12) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... e ought to have taken note of the same and should have dealt with the said contentions. It has been consistently held by the Hon ble Courts that no tax can be levied or collected except by the authority of law and that if the assessee by mistake or inadvertence or on account of ignorance included in his income any amount which is non-taxable or is not income within the contemplation of law, the assessee may bring the same to the notice of the Assessing Officer to which if the Assessing Officer is satisfied, he may grant the assessee necessary relief and refund the tax paid in excess. When the assessee had given sufficient documentary evidence during the course of the rectification proceedings that the agricultural land sold during the year do not fall under the category of capital asset u/s 2(14) of the Act and inadvertently the assessee has shown it as a capital asset in the Income tax return, therefore, the assessee deserves to succeed and we accordingly hold that the capital gain arising from the sale of agricultural land in question is exempt from tax. Since we have allowed this claim of the assessee that the agricultural land sold during the year is not a capital asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered that the exemption of Rs. 69,80,000/-was allowable u/s 54B when it was evident and on record that assessee had purchased new agricultural land of Rs. 69,80,000/-. 5. For that although in original assessment TDS of Rs. 34,460/- was allowed but in rectification order no TDS was allowed for an unknown reason. 6. For that the Ld. CIT(A) erred in holding the view that the exemption was originally allowed u/s 54F and therefore the assessment is to be rectified when no exemption u/s 54F was claimed or allowed. 7. For that the order is otherwise bad in law since two opinions were possible on the issue. 3. Facts in brief are that the assessee is an individual earning income from salary, long-term capital gain and other sources and disclosed an income of Rs. 5,42,300/-in the return for Assessment Year 2013-14 furnished on 24/03/2014. Case selected for scrutiny through CASS followed by issuance of notice u/s 143(2) and 142(1) of the Act. As per the ITS data, transaction amount reflected in the name of assessee is Rs. 1,02,90,660/- but the sale consideration from sale of agricultural land declared in income tax return at Rs. 66,66,657/-. In the return of income asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in excess. Citing this decision, it is submitted that since the lands sold during the year are agricultural lands which were being used for the purpose of agricultural operation and they are not capital assets as defined u/s 2(14) of the Act, the capital gain arising from the sale of such land is exempt. Further it is claimed that even if agricultural land sold during the year are considered as capital asset then also assessee is eligible to claim exemption under section 54B of the Act, for the agricultural land purchased within the time limit prescribed under section 54B of the Act. 5.1. On the other hand, the ld. D/R, vehemently argued supporting the orders of both the lower authorities. 6. We have heard the rival contentions and perused the record placed before us. We observe that the assessee who is an individual, sold agricultural land during the year and also purchased agricultural land during the year and in the subsequent year. In the return of income, the assessee has declared the said transactions and sale consideration has been shown at Rs. 66,66,657/-. Exemption u/s 54 of the Act has been claimed against land purchased at Rs. 69,80,000/-. During the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act at Rs. 97,55,000/-, ld. CIT(A) failed to find any merit and confirmed the action of the Assessing Officer observing that the ld. Assessing Officer has rightly rectified the mistake apparent on record. 7. Before us, ld. Counsel for the assessee, took us through the paper book containing 175 pages of which page 158 to 160 provides copy of Notification dated 6th January, 1994 vide Notification No. [SO 9447] (File No. 164/3/97-ITA.I), in order to prove that the land sold during the year is not a capital asset. We have gone through the said notification and also gone through the details of sale deeds as well as certificate issued by Dadpur Gram Panchayat and find merit in the claim of the assessee that the agricultural land sold during the year do not fall within the definition of capital asset provided u/s 2(14)(iii) of the Act and, therefore, the capital gain arising from sale thereto is exempt from tax. So far as the finding of the lower authorities that the assessee did not provide this fact during the course of assessment proceedings, we note that during the course of rectification proceedings, though the same were initiated by the Assessing Officer but once certain f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
