TaxTMI 
TaxTMI 
2015 (6) TMI 831
X X X X Extracts X X X X
X X X X Extracts X X X X
....appeal of the assessee is taken up for final disposal. 2. Shri K.R. Sudhakaran Pillai, the ld.representative for the assessee submitted that the assessing officer made addition of Rs. 37,55,708 towards long term capital gain on the ground that the same was not disclosed in the return of income. According to the ld.representtive, the assessee has sold agricultural land in Trikkakara panchyat. There is no column in the return of income to disclose the exempted income. According to the ld.representative, profit on sale of agricultural land is exempted from taxation. In the absence of any specific column in the return of income, according to the ld.representative, the assessee has not disclosed the gain on capital gain. If it is disclosed, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessee claimed the same as agricultural land. However, the assessing officer found that the land was not an agricultural land. This Tribunal examined the issue in ITA No.301/Coch/.2009 by an order dated 21-10-2011, copy of which is placed at page 1 of the paper book elaborately and found that the land is not an agricultural land. According to the ld.DR, once the Tribunal found that the land is not agricultural land, then the assessee has to naturally liable for capital gain tax on sale of the very same land. Therefore, the claim of the assessee that the land is an agricultural land is not justified. The CIT(A) has rightly confirmed the penalty levied by the assessing officer. 4. We have considered the rival submissions on either side ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....agricultural land. However, section 10(37) and section 54B requires the assessee to use the land for agricultural purpose two years immediately preceding the date of the transfer. However, such requirement of use for agricultural purpose is consciously omitted by the Parliament in section 2(14) of the Act. Therefore, a doubt arises whether the land in section 2(14) is expected to be cultivated immediately two years preceding the date of transfer of not? In fact, another division bench of this Tribunal examined this issue elaborately in the case of Shri M.J. Thomas & Ors in ITAs No 224/Coch/2011 & Ors order dated 06-06-2014 and after the finding that the state government is not maintaining any records for cultivation in the State of Kerala, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rmers, who were registered on the records of paddy field without considering the actual cultivation. Therefore, the state government for the purpose of food production considers the paddy fields and the agriculturists as a basis for food production. In those situations, the assessee has produced certificates from the village officer to show that the subject lands were under cultivation. This Tribunal is of the considered opinion that in the absence of any other record maintained by the state government for cultivation of the land, the certificate given by the Village Administrative Officer, who is personally acquainted with the land may be one of the factors to be taken into consideration. This Tribunal cannot ignore the certificate given b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....judgment of the Apex Court in the case of Sarifabibi Mohmed Ibrahim And Others (supra) may not be applicable to the facts of the case. 29. We have also carefully gone through the judgment of the Kerala High Court in the case of Smt. Asha George (supra). In the case before the Kerala High Court in the case of Smt. Asha George (supra), the question arose for consideration was exemptions u/s 54B and 54F of the Act. One of the pre-conditions for grant of exemptions u/s 54B and 54F is that the land should be used for cultivation immediately two years before the date of transaction. Such a condition is not available for treating the land as capital asset u/s 2(14) of the Act. Therefore, as observed earlier, what is required is the connection b....