TaxTMI 
TaxTMI 
2021 (8) TMI 904
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....e case in admitting the additional evidence in the case without appreciating that a number of opportunities were given to the assessee by the A.Oto furnish evidencesin support of his claim. 3. That on the facts and in the circumstances of the case Ld. CIT(A) has erred in law and on fact of the case in not appreciating that the SDM has mentioned in his report that at the time of the award there were no crops were standing on the Land in question but building structures and tree come in the area under acquisition. 4. That on the facts and in the circumstances of the case Ld. CIT(A) has erred inlaw and on fact of the case in allowing total exemption of Rs. 7,48,60,293/- u/s 10(37) whereas the assesse has claimed only Rs. 6,32,89,013/- exempt u/s 10(37) in the computation filed by him during the assessment proceedings and he had claimed Rs. 1,10,00,000/- as exempt u/s 54B of the Income Tax Act, 1961. 5. It is prayed that the order of the Ld. Commissioner of Income Tax (Appeals) be set aside and that of the Assessing Officer be restored. 6. The appellant requests for leave to add or amend or alter the grounds of appeal before the appeal is heard and d....
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....fficer has considered the Land acquired by the National Highway Authority of India (NHAI) as a capital asset. Assessing Officer further inquired from the assessee as to why compensation received by the assessee on the acquisition of Capital assets be not taxed as a capital gain. 2.3 In response to the query of AO,the Authorized Representative has submitted that as per Section 2(14)(iii) of the Income Tax Act, 1961, compensation received for acquisition of Land received by the assessee is exempt from taxation. He hadalso drawn the attention of the Assessing Officer to Section 10(37) of the Income Tax Act, on the strength of section 10(37) it waspleaded Land before the acquisition was used for agriculture purposes, as it clear from the certificate issued by the Revenue Authority. The Assessing Officer was not convinced with the submissions of the assessee, and as such he had made the addition of Rs. 7,78,48,60,293/- towards the long term capital gain and had also added the amount of Rs. 9,47,663/- towards income earned by the assessee on the FDR deposited with the financial institution namely Jalandhar Central Co-operative Bank Ltd., Mansurpur. 3.0 Feeling aggrieved, the assess....
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....What She actually asked from SDM Phillaur using her powers u/s 133(6) on 3/11/2016 (Copy of letter enclosed as per anenxure-2) is as under. 1. What was Discription of Land Acquired, 2. Whether Land acquired Agriculture or Commercial, 3. Whether compensation given on commercial or Agricultural rate 4. How much compensation given to Suchasingh 5. Furnish Copy of Compensation 7) SDM Phillaur sent reply ta A.O. on 17/11/2016 (Copy of letter enclosed as per annexure-3) which was seen by A.O. on 18/11/2016 as under; 1. 22 kanal 15 nutrias 2 sarsahi of village Kutbewal acquired for six laning project of Such a Singh. 2. Acquired Land was Agriculture at the time of acquisition. 3. Compensation was paid on agriculture rate. 4. Total compensation Rs. 7,57,91,413 was paid. 5. No copy of compensation issued to Such a Singh. So, on 18/11/2016 she already knew that Land acquired was agriculture and compensation was paid on agriculture rate but A.O. totally ignored this relevant evidence justifying claim of exemption u/s 10(37) of I.T. Act 1961. 8.Also on 01/12/2016 using powers u/s 133(6) ....
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....k right ' of cross examination. The Supreme Court in Kishan Chand Chellaramv, CIT (1980) 125 HR 713 (S.C.) held that evidence which is used against the assessee must be provided to the assessee and also an opportunity to confront the same should be given permitting cross-examination. 15) A.O. was totally wrong in basing his assessment order on single observation of LAO that no crop was standing at the time of award. Award was passed in year 2013 and Land was acquired in year 2010 By virtue of sub sec (2) Section 3D of NHAI Act it vested in central govt on 04/08/2010.So what was required to see was cultivation by appellant during year 2008 to year 2010. Moreover it is matter of common knowledge once Land is acquired owners are allowed to harvest the crop standing on it. 16) Land of appellant was compulsorily acquired by National Highway Authority, It was agriculture land under cultivation of appellant himself for more than two years, So, provision of sec 10(37) of Income Tax Act were applicable. 17) Appellant was also under bonaftde belief that Land is outside municipal commitle boundary so exempt from capital gain tax. So, t....
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.... the date of the award. She had drawn our attention to the award passed by the authorities on 19.07.2010. After the passing of the award, she submitted the ownership of Land vested in favor of the National Highway Authority of India , hence it would be preposterous for the revenue authority to show assessee as the cultivator of the Land even after possession was taken, award was passed and compensation was paid. Hence Appeal of the Revenue is required to be allowed. 5.0 Per contra, the Ld. Authorized Representative (AR) has drawn our attention to the Gazette of India dated 19.02.2010 wherein it is mentioned that the Notification under section 3(a)(iii) of the National Highway Authority Act was issued on 10.03.2010 and after the issuance of the Notification on 10.03.2010 the competent authority called the objection, however, the objection raised by the assessee were dismissed and accordingly a declaration u/s 3D(i) was issued whereby the Land stood vested in the NHAI. Accordingly, the assessee was granted the compensation after passing the award, accordingly the Land was acquired by the NHAI on 19.07.2010 and, therefore, the compensation was granted to the assessee has mentioned ....
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....nted for the purpose of calculating agriculture period . The immediately preceding 2 years shall be from19-07-2008 to 18-07-2010. That means F.Y. 2008-09 and 2009-10. The Land should be used for agriculture purposes. 11. Copy of khasra Girdawri from patwari, as extract of land revenue record, indicating that Land was used for agriculture purpose and mentioning the name of the crop also in khasragirdawari, was filed to ld. CIT(A), as well as, to the honourable bench, already at page 10 to 15, starting from F.Y. 2008-09 to 2012-13 which shows Land was producing agricultural products from F.Y. 2008-09 to F.Y. 2012-13. 6.0 We have heard the rival submissions and perused the material on record. The undisputed facts are that the Land was acquired pursuant to the award passed by the NHAI u/s 3D of the Income Tax Act, 1961. It is also not disputed declaration was issued by authority u/s 3A(iii) of the NHAI Act on 10.03.2010 and thereafter, Land stood vested in terms of NHAI. It is also not disputed that the compensation was granted to the assessee for an amount of Rs. 7,57,91,413/- @ 2.5 Crore per acre. 6.1 CIT(A), had passed the impugned order in a cryptic stereotype manner....
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....Thus, I find that there is an over whelming evidence available on record which suggests compliance of necessary conditions by the appellant as specified in section 10(37) of the I.T. Act. A.O. in the remand report has not been able to bring out as to how and why the appellant is not entitled for claim of exemption u/s 10(37) of the I.T. Act and has only reiterated the reasons given in the assessment order. Various courts have held that any claim for exemption/deduction even if not made before the A.O. has to be given to the assessee if he satisfies the requisite conditions for such exemption/deduction. Therefore, the fact that appellant has also claimed deduction u/s 54B of the I.T. Act does not mean that exemption of income, if it is available under other section can be denied. Accordingly, I hold that appellant is entitled to the claim of exemption of income u/s 10(37) of the I.T. Act. Thus, the issue of claim of deduction u/s 54B of the I.T. Act becomes academic and hence is not taken up for consideration." 6.2 There was no discussion in the order of the CIT(A), as to how the conditions provided under section 10(37) were fulfilled in the assessee's case. The moot....
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....is area vide notification No.445 (E) dated 23.12.10 was transferred to National Highway authority of India. These Khasra Numbers are out of municipality area limit, away at a distance of 650 meter and near to G.T road and copy of Gurdawari bearing these Khasra Numbers is enclosed. This report is submitted for further action. 6.7 As per 10(37) of IT Act , compensation granted only for land which was under cultivation for two years before its acquisition can only be exempted to compute the capital gains, despite beingurbanized Agricultural Land. The compensation received for the land, which was not under cultivation, would be exigible to tax. The capital gain tax would be leviable on the said compensation received as the land would continue to be the capital asset within the meaning of section 45 of the Income Tax Act. In our opinion, the assessee is liable to pay the capital gain tax on the compensation amount received by the assessee on the land that was not under cultivation. Undoubtedly, the Land other than 8 kanal 30 marlas was the capital asset within the meaning of section 2 (14)(iii) read with section 10(37) r/w section 45 of the Income Tax Act and therefore, any capita....