TaxTMI 
TaxTMI 
2019 (1) TMI 654
X X X X Extracts X X X X
X X X X Extracts X X X X
....oor Nagar, Pargana Loni, Ghaziabad, Uttar Pradesh to a real-estate developer, M/s Vasu Infrastructure Private Limited, vide different sale deeds executed in the month of December, 2008 for Rs. 6,51,00,000/.The appellant-assessee had purchased this land for Rs. 58,90,000/-on 11th November, 2005. The purchaser had subsequently obtained permission vide order dated 10th October, 2011 for conversion and use of land for nonagricultural purposes. 4. It is undisputed that one of the conditions to claim benefit of exemption under Section 54B of the Act is that the land as a capital asset should be an agricultural land, used by the assessee being an individual or by his parents or Hindu Undivided Family for agricultural purposes during the period of two years immediately preceding the date of transfer. It is not the case of the appellant-assessee that the land was used for agricultural purposes by his parents or Hindu Undivided Family. Thus, the appellant-assessee was to prove and establish that the land in Ghaziabad sold to a realestate developer was used by him as an individual for agricultural purposes during preceding two years before the date of transfer in December, 2008. 5. Learned ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sbelieved and the AO cannot take a deviated stand or view. Firstly, we are' in` agreement with the ld. DR that resjudicatadoes not apply to the tax proceedings and in A.Y 2008-09, the AO had no occasion to examine the issue of exempt agricultural income in A.Y 2008-09 as the assessment was framed u/s 143(1) of the Act and consequently the AO had no occasion to examine the same on merits and in this situation, theAO is, not prevented from examining the issue, on all angles on merits in A.Y 2009-10 and he may take a deviated stand or view of the facts of the issue and provisions if the Act permits the same. 21. Secondly, the Id. AR vehemently stated that the assessee undertook agricultural activities on the land through Shri Amar Pal Singh who deposed in favour of the assessee by stating that he undertook agricultural activities over the land for two years as on batai[sharing basis] an acknowledgment of Shri Amar Pal Singh has been placed at page 102 of assessee's paper book, which stated that he took land of assessee for agricultural purposes for two years w.e.f. 4.12.2006. This is written on the plain paper, there is no mention of situation or name of the village, where th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein it was the first precondition that the land which was transferred must have been used by the assessee or a parent of his for agricultural purposes during the immediately preceding two years on which the transfer took place. In the present case, admittedly- and undisputedly neither the assessee nor a parent of his undertook or used the land sold for agricultural purposes. The statement of Shri. AmarPal Singh, the so called bataidar, as per the assessee, who took land for agricultural purposes is not believable and rather from the threadbare analysis of the statement as noted above by us, it is clear that he is not an agriculturist, he is not a resident of village Noor Nagar he is unable to state Khasra Nos, area and correct situation of the land and he could not submit the receipt of crop selling. Over and above, he stated that neither before nor after he took any other land for agricultural purposes and thus we safely presume that it was only an incident of taking land for agricultural purposes which is clearly a creation of false evidence to establish claim u/s 54B of the Act. Thus, we hold that in this situation, the benefit of ratio of the orders of the Tribunal these cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and development of land, filling of land and construction of boundary wall on the agricultural lands purchased. Keeping in view the geographical location of land the assessee had thought it wise to have a boundary wall constructed for security purposes and to avoid any encroachments and animal grazing on the lands so purchased. 3. The assessee was of the belief that he did not have any assets as covered under section 2(ea) of the Wealth Tax Act and thus no wealth tax return had been filed. The assessee had the Noor Nagar agricultural land and during the period the assessee held the land, it was only meant for agricultural use and construction of building was not permissible under any law for the time being in force in the area in which such land was situated. Thus the said agricultural land was out of the purview of Wealth tax Act." 25. Then the AO dismissed the reply and explanation in para. 4.5which reads as follows: "4.5 The replies of the assessee have been duly considered but not acceptable and convincing as the land sold in December, 2008 was neither used for agricultural purposes nor any crops were grown during the past period starting from the year Nov.,2005 when it w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... A Y 2009-10] for agricultural purposes. This conclusion recorded by the AO as well as by the CIT(A) cannot be alleged as faulted or incorrect and we decline to interfere with the same. 28. At this. juncture, it would also be necessary to deal with the contention of the assessee that once it is established that Shri Amar Pal Singh undertook agricultural activities over the land and the land owned and sold by the assessee has been used for agricultural purposes, he becomes entitled for claim u/s 54B of the Act on the sale of such land even if he is not a cultivator himself but gets cultivated under his supervision. To support this contention, reliance has been placed by the assessee on the order of the ITAT, Ahmadabad Bench in the case of Shree Bhagwan Bai [supra] but in that case the assessee could not even establish that the land in question was used for agricultural purposes during the immediately previous two years from the sale of land on 29.12.2008 as the statement of Shri Amer Pal Singh is not reliable and acceptable as believable to show that he undertook agricultural activity over the land from 4.12.2008 to 20.8.2008. At the same time, we clearly observe that the AO prope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t own or have agricultural land. Earlier till 1986 he had done agricultural work.Thereafter, he would sometimes get small pieces of land to cultivate. However, Amar Pal Singh was unable to give name of any owner and details of such land, except the appellant- assessee who was known to him since 2006. He could not recollect and give khasara number of the land in question except that the land was situated in village Sioani, Noor Nagar. On being asked as to the crops grown on the land, Amar Pal Singh had stated that he had grown "jai chara" (fodder), "jawar" and wheat. He did not refer to "jai" (oat). As per Khasra Girdwari, neither wheat nor "jai" (oats) was grown. Amar Pal Singh had also claimed that he had sold the agricultural produce at Ghaziabad Mandi for Rs. 40,000/- in cash in the first year and Rs. 47,000/- in the second year. There is therefore, contradiction in the statement made by Amar Pal Singh regarding the sale proceeds and the statement of the appellant-assessee that he had earned agricultural income. It is obvious that Amar Pal Singh had not "worked" for free. This would contradict the appellant-assessee's assertion that he had earned or made profit of Rs. 40,000....