AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 1043
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....y the assessee reads as follow:- "Shri. Sahadevan. K. Son of G. Krishnan aged 77 residing at Rohini, Aksharaveedhi lane, Pettah, Trivandrum do hereby solemnly affirm that; 1. I am assessed to tax by the Income tax Officer, Ward-1 (3) Trivandrum. For the A.Y.2010-11 I have filed my return of income disclosing an income of Rs. 2,35,177/-and the assessment was completed on 4/03/2013 u/s143(3) read with section 147 without making any adjustments to the returned total income. 2. The Commissioner of Income tax vide notice dated 5/03/2015 proposed revision u/s 263 and passed the order dated 18/03/2015 setting aside the assessment order for fresh verification on the issue of allowing the exemption u/s 10(37). 3. The assessing officer assessed the long term capital gain vide order dated 18.01.2016. 4. My income tax representation in connection with the 263 proceedings was handled by CA V.Sunodkumar, a Practicing Chartered Accountant at Trivandrum and I was under the impression that the appeal has been filed against the order under section 263. The fact of the non filing was noticed only when I approached CA Mathew Joseph of Cochin to file the App....
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....l on record. The assessee has filed an affidavit stating therein that his earlier Chartered Accountant who was handling the proceedings u/s 263 of the I.T.Act, had advised him to file an appeal only against the assessment order passed pursuant to the order of revision u/s 263 of the I.T.Act. It was submitted that the delay in filing the appeal had occurred out of above bonafides mistake and same be condoned. In support of the assessee's affidavit, the Chartered Accountant who had dealt with the 263 proceedings has also filed an affidavit stating therein that he was under the bonafides impression that the appeal had to be filed only against the assessment order giving effect to the revision order. We noticed that on identical facts, the Hon'ble High Court of Kerala in the case of Dr.Damodar Rout v. CIT in ITA No.44/2014 (judgment dated 20th March, 2019) had reversed the Tribunal's order. In the case of Dr.Damodar Rout (supra) the ITAT had dismissed the appeal in limine on the ground of delay. The Hon'ble High Court condoned the delay in filing the appeal and directed the ITAT to consider the issue on merits. In the case considered by the Hon'ble High Court, the reason stated for ....
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....r the area to certify that the land acquired was agricultural in nature. The reassessment was completed u/s 143(3) r.w.s. 148 of the I.T.Act vide order dated 04.03.2013 by accepting the claim of exemption u/s 10(37) of the I.T.Act. 6. Subsequently, notice u/s 263 of the I.T.Act was issued to the assessee on 05.03.2015 stating that the Assessing Officer while granting exemption u/s 10(37) of the I.T.Act, failed to notice that the land acquired compulsorily was not situated in an area referred to in Item (a) or item (b) of sub clause (iii) of clause (14) of section 2 of theI.T.Act, but situated within the limits of Trivandrum Municipal Corporation, and hence, capital gain could not be exempted u/s 10(37) of the I.T.Act. However, during the course of revisionary proceedings u/s 263 of the I.T.Act, the CIT was of the view that the impugned land which was acquired in assessment year 2008-2009, the assessee had failed to prove that it has been utilized for agricultural purposes immediately preceding the date of compulsorily acquisition. The CIT referred to the survey number in the official website of Registration Department of the State of Kerala and concluded that the impugned lan....
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....l Representative present strongly supported the order of the CIT. 8. We have heard the rival submissions and perused the material on record. The assessee is a pensioner, now aged about 77 years. The assessee owned 15.35 Ares of land in survey No.186/7 at Patton Village, which is situated within the limit of Trivandrum Municipal Corporation. Out of this land owned by the assessee, 2.2 Ares (5.5 cent) was compulsorily acquired in assessment year 2008-2009 by the Government of Kerala for development of Trivandrum Airport. The assessee filed petition before the Sub Court Trivandrum for enhancement of compensation. The enhanced compensation of Rs. 34,57,320 was awarded and the same was paid to the assessee after withholding tax during the relevant assessment year. According to the assessee, the land acquired is an agricultural land and the same being compulsorily acquired, was exempted from long term capital gain u/s 10(37) of the I.T.Act. In the revisionary order passed u/s 263 of the I.T.Act, the CIT set aside the reassessment order directing the A.O. to consider the claim of exemption u/s 10(37) of the I.T.Act, afresh. According to the CIT, it cannot be said that the impugned l....
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....ed in that survey number. 8.2 The certificate of the Agriculture Officer was based on the report of the Spl. Tahsildar (L.A) in LAC No 15/05 dated 03/04/2007 in which it had been reported that there are eight coconut trees of different age and other trees like areca nut, amla etc. were present at the time of acquiring the land. Coconut, areca nut, amla and mango are agriculture produce. Hence the land in which those trees are cultivated is agricultural land. Once eight coconut trees are planted in the small piece of land there is no scope for further plantation in every year on account of the long life time of already planted trees, period of availability of its crops and lack of space for further cultivation. The activities carried out in such situations are cleaning the area, removal of grass and shrubs, apply manure, water etc and plucking and colleting the crops. All these activities amount to agricultural activities and are being carried out by the assessee for so many years immediately preceding the date of transfer. A copy of the Report of the Spl. Tahsildar (L.A) in LAC No 15/05 dated 03/04/2007 is placed on record. 8.3 The assessing officer had made local enqui....