1985 (12) TMI 120

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....elf-occupied property, long term capital gains and commission. The assessee filed the return of income. During the course of assessment proceedings the ITO found that the assessee has sold the agricultural land measuring 3.03 acres in are to his brother-in-law which he held as non-genuine transaction for the reasons mentioned in his order. The ITO has further observed in his order that the purchasers are banamidars. Therefore, he made protective assessment in the case. In appeal the AAC upheld the action of the ITO, reliance was placed on the decision in the case of Jagannath Hamnumanbux vs. CIT (1957) 31 ITR 603 (Cal) and in the case of Lalji Haridas vs. ITO (1961) 43 ITR 387 (Cal). 3. The assessee being further aggrieved has preferr....

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....ntentions and have gone through the record before me. It is a settled law that it is for the alleger to prove that the sale is benami. In this case the onus is on the Department to prove that the sale of agricultural land by the assessee to his brother-in-laws is benami which the Department has failed to prove. The order of the ITO shows that he has taken the sale of agricultural land as benami on the ground of suspicion and doubts. Therefore, the ITO has failed to prove that the purchasers are the benamidars of the seller (assessee). Furthermore, the ITO had made the assessment in the case of the assessee on protective basis, but on questioning by the Bench, the Departmental Representative has not shown or proved that the main assessment h....

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....agricultural land in dispute is not subject matter of capital gains tax. 5. In view of the aforesaid findings, the ground No. 1 is allowed holding further that ground No. 2 is infructuous in view of above finding, Ground Nos. 1 & 2 of the appeal are hereinafter reproduced: "(1) The petitioner submits that the ld. AAC erred in holding that the protective assessment order passed by the ld. ITO is proper. It is submitted that the capital gains having arisen to him due to sale of land to his brother-in-law which is duly registered and the sale consideration having been received, the capital gain as declared requires to be assessed in his hands. That the question regarding capital gains on sale of these lands by the purchaser in smaller pl....