9911796707
TMI Blog2024 (6) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... in denying alternative claim of the appellant to grant the exemption u/s 54B & 54F as per the law and thereby passed the order in the breach of principle of natural justice. 3. The Ld. CIT(A) erred in law in denying the permission to appellant to raise additional grounds of appeal with respect to alternative claim of exemption u/s 54 B and 54F of the I. T Act, 1961 without appreciating the fact that even oral request for raising additional ground of appeal is sufficient for the purpose of adjudication thereof and in the present case there was specific averments made in the submission filed that alternative claim of exemption u/s 54 B & 54F may kindly be allowed. The appellant craves leave to add, amend or alter the aforesaid grounds of appeal at the time of hearing, if the need arise." 3. The brief facts of the case are that the Assessing Officer was in possession of information that the assessee along with two other sellers had sold immovable property for which they received Rs.1,00,00,000/- in cash. Further, the ITO, Mehsana had intimated that the jantri value of land sold was determined at Rs.3,73,32,000/-. The Assessing Officer was at the view that the said land is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is not acceptable, because according to the provision of section 50-C of the Income tax Act 1961 the Sub-Registrar, Deesa had valued the property at Rs, 3,72,32,000/- for stamp duty purposes, against which value of the property shown at Rs, 1,00,00,000/-. According to the provision of section 50-C of the Income tax Act 1961, the value valued by the sub-registrar, Deesa is to be adopted genuine and accordingly the long term capital gain is to be worked out. Accordingly, long term capital gain of Rs. 1,23,97,837/- (1/3 rd share of the assessee ) is worked out and added to the total Income declared, In this case, the assesse vide letter dt 14/12/2018 has requested to refer the issue regarding sale value of the property to the Departmental Valuation Officer, Ahmedabad, Accordingly, vide letter dated 14/12/2018 the issue has been referred to the Departmental Valuation Officer. In view of this fact, the assessment is finalized subject to report of the Departmental Valuation Officer. On receipt of the report of the Departmental Valuation Officer, the order will accordingly be modified and the sale value of the property will be taken as per the value determined by the Departmental Valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "Lengthy reply of the assessee is fully considered, but the same is not acceptable because according to the provision of section 50-C of the Income tax Act 1961 the Sub-Registrar, Deesa had valued the property at Rs.3,72,32,000/- for stamp duty purposes, against which value of the property shown at Rs. 1,00,00,000/-. According to the provision of section 50-C of the Income tax Act 1961, the value valued, by the sub-registrar, Deesa is to be adopted genuine and accordingly the long term capital gain is to be worked out. Accordingly, long term capital gain of Rs. 1,23,97,837/- (1/3 rd share of the assessee ) is worked out aro added to the total income declared. In this case, the assesse vide letter dt 14/12/2018 has requested to refer the issue regarding sale value of the property to the Departmental Valuation Officer Ahmedabad Accordingly, vide letter dated 14/12/2018 the issue has been referred to the Departmental Valuation Officer. In view of this fact, the assessment m finalized subject to report of the Departmental Valuation Officer On receipt of the report of the Departmental Valuation Officer, the order will accordingly be modified and the sale value of the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Act. 5. In the result, the appeal is partly allowed." 5. The assessee is an appeal before us against the aforesaid order passed by CIT. The primary contention of the counsel for the assessee before us that firstly, the Department has never disputed the fact that the assessee was continuously carrying out agricultural activities on the said piece of land, right up to the date of sale. Secondly, the counsel for the assessee submitted before us that it is a well established law that once the said land which has been sold is being used for purpose of agricultural activities, right up to date of sale, the mere fact that the user of such land was converted into non-agriculture would not take away the fact that the land continued to be in agricultural land and sale of such land there was exempt from tax under the Income Tax Act. Thirdly, it was contended that the land was situated beyond the municipal limits as prescribed under the Income Tax Act and therefore the land was an agricultural land within the meaning of Section 2(14) of the Income Tax Act. Finally, it was submitted that the assessee is eligible for claim of deduction under Section 54B/54F of the Act, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual user of the land. The fact, on the other hand, that there was no approach road at the relevant time and that agricultural operations were being carried on with the aid of tractor would go to show that the presumption raised from actual user could not be dislodged. This was not a case of a mere purchaser going in for agricultural activity pending the disposal of the land. This was the ancestral land of the assessee-Hindu undivided family and right from 1939 when the land was received by it on partition, this assessee-Hindu undivided family was carrying on agricultural operations on the land till the date of the sale. Nothing had happened till the date of the sale to show that the character of the land had ceased to be that of agricultural land. What had to consider was not what the purchaser did with the land or what the purchaser was supposed to do with the land, but what was the character of the land at the time when the sale took place. It was true that permission to sell the land Co-operative Housing Society Ltd. was granted on condition that the land would be used for residential purposes and the application for permission under Section 63 of the Bombay Tenancy and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. Therefore, it is not clear from the facts available on record whether land qualified as an agricultural land within the meaning of Section 2(14) of the Act. 11. Accordingly, in the interest of justice, the issue is being set aside to the file of Assessing Officer with the view to verify whether the conditions of Section 2(14) of the Act are being met in the instant set of facts. The assessee would be at liberty to produce all supporting documents to show that land is situated as per prescribed limits given under Income Tax Act so as to qualify as agriculture land and also file copies of any notification etc. in respect of this land which support the fact that the land is an agriculture land and is situated as per the prescribed municipal limits under Section 2(14) of the Act. 12. With regard to the other contentions of the assessee with respect to claim of deduction and Section 54F/54B of the Act, we observe that Ld. CIT(Appeals) had already directed the Assessing Officer to allow the claim of deduction under Section 54B/54F after due verification about the fulfillment of conditions, contained therein. Accordingly, to that extent, we find no infirmity in the order of Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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