TaxTMI 
TaxTMI 
2017 (9) TMI 1580
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....ccordingly the surplus arising on sale of such lands was not liable to any tax in the hands of the appellant. 2. Vide application dated 23.08.2017, the assessee has raised the following additional grounds of appeal: 2." Without prejudice to ground no.1, where it is held that the surplus of Rs. 1,99,56,849/- arising on sale of agricultural lands at village Sange/Nane, Taluka Wada, Dist. Thane is in the nature of long term capital gains, then the appellant be held eligible for (i) Deduction of indexed cost of acquisition, as provided u/s 48 of the I. T. Act 1961, in the computation of long term capital gain and (ii) Benefit of beneficial rate of tax as provided u/s 112 of the I. T. Act 1961." 3. Brief facts of the case are that the assessee filed return of income for relevant AY on 30.09.2011 declaring total income of Rs. 7,36,660/-. The assessment was completed on 28.02.2014 u/s 143(3) of the Act. The Assessing Officer (AO) during the assessment proceedings, noticed that the assessee has claimed Capital Gain of Rs. 1,99,56,849/- on sale of agricultural land and claimed exemption u/s 1(14(iii) of the Act. The assessee was asked to furnish the details regarding the area of ....
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....mputation of Long Term Capital Gain (LTCG) and further benefit to beneficial rate of tax as provided u/s 112 of the Act. It was argued that all facts relating to the raising of addition ground of appeal are emanating from the record of the lower authorities no further for additional fact is required to be brought on record. The additional ground of appeal is necessary for effective and fair determination of tax against the assessee in any case the ground No. 1 of the appeal is decided against him. In support of his submission, the ld. AR of the assessee relied upon the decision of National Thermal Power Corporation Vs. CIT 229 ITR 383 (SC). On the other hand, the ld. DR for the Revenue argued that the assessee has not raised such ground of appeal before the First Appellate Authority (FAA). 5. We have considered the rival submission of the parties and found that the assessee has raised additional ground of appeal in alternative to the original ground of appeal inter alia that in the event of the land is not considered as agricultural asset, the assessee be allowed the benefit of LTCG and the deductions on account of index cost of acquisition and the benefit of beneficial rate of ta....
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.... the assessee is entitled for exemption u/s 2(14)(iii), if in case the Hon'ble Tribunal is of opinion that the gain arising of the sale of the said land to be taxed under the Long Term Capital Gain(LTCG), the assessee be allowed cost of acquisition and the expenses made on its development, fencing labeling etc. The assessee further be allowed the benefit of beneficial rate of tax as provided u/s 112 of the Act. In support of his following submission, the ld. AR of the assessee relied on the following decisions: (i) Shankar Dalal v/s CIT, 150 DTR 197 (Bom)(2017) (ii) CIT v/s Smt. Debbie Alemao, 331 ITR 59 (Bom)(2011) (iii) CIT v/s Minguel C. Pais, 282 ITR 616 (Bom)(2006) (iv) CWT v/s H.V. Mungale, 145 ITR 208 (Bom)(1984) (v) ACIT v/s Harsh C. Rajani, ITA No.911/M/2015-'H' Bench ITAT, Mum order dated 22.12.2016. (vi) Vannit Kumar Inderkumar Gupta v/s JCIT, ITA No. 2736/M/2013 'F' Bench, ITAT, Mum order dated 16.12.2015. (vii) ITO v/s Ashok Shukla, 139 ITD 666 (Indore) (2012). (viii) Harish V. Milani v/s JCIT, 114 ITD 428 (Pune) (2008) (ix) Thanmel Ganeshmal Parmar v/s ITO, ITA No. 266/M/2013 'B' Bench, ITAT, Pune order dated 04.11.2015. 7. On the other han....
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....bservation on the decision of Smt. Sarifabibi Mohamed Ibrahim & Ors. Vs. CIT [204 ITR 631 (SC)] wherein it was held that the agricultural land sold to Housing Society, the land though entered in Revenue record as agricultural and profit on sale assessable to Capital Gain tax. The ld. CIT(A) further examined the activities undertaken by the assessee for a period of four years and concluded that there was no agricultural activities undertaken by the assessee except developing the land as no verifiable evidence is placed by assessee and confirmed the action of AO. 9. We have noted that the ratio of decision of Hon'ble Supreme Court in Smt. Sarifabibi Mohamed Ibrahim & Ors. (supra) squarely applicable is applicable on the fact of the present case. The assessee is permanent resident of Mumbai. The assessee has not shown any income from agriculture activities. The assessee in the return of income has also shown as income from 'salary' from M/s Federal Brands Ltd. No evidence to substantiate that any agriculture activity was undertaken by the assessee during the period of holding the land with him, was placed on record by the assessee. The assessee claimed that during the period of holdi....