TaxTMI 
TaxTMI 
2021 (10) TMI 695
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....se, as agreed by the Ld. Authorized Representatives of the parties before us. 2. In ITA No. 5313/Del/2014 [Assessment Year 2010-11], the assessee has taken up following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 2,32,08,282/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of Rs. 47,060/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of in....
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.... and seizure operation u/s. 132 of the Income Tax Act, 1961 ('the Act') was conducted on 11.11.2010 in Tinna Group of cases. It is recorded by the Assessing Officer ("AO") that during the course of search, certain documents belonging to assessee were found. Thereafter, notice u/s. 153A of the Act was issued on 19.11.2012, requiring the assessee to furnish the return of income. In response thereto, the assessee vide letter received by the Assessing Officer on 31.01.2013 requested that the original file u/s. 139 of the Act, may please be treated as the return filed in response to the notice u/s. 153A of the Act. In this case, it is observed by the Assessing Officer that the original return was filed by the assessee declaring taxable income of Rs. 5,04,203/- and in computation of income, the assessee had also declared exempt income (agriculture and other income) of Rs. 2,11,01,525/-. The Assessing Officer noticed during the course of assessment proceedings that the assessee had purchased a land measuring 40 Bighas, 1 Biswa vide Sale Deed dated 15.05.2006 for Rs. 39,76,785/- at Village Rojka Gujar, Distt.-Sohna, Haryana. This land was subsequently, sold by the assessee on 19.01....
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.... was permissible under law. Hence, the capital asset within the meaning of section 2(14) of the Act. 7.2. Finding by Ld. CIT(A):-Ld. CIT(A) has sustained the addition and rejected the claim of the assessee that the land being agricultural land could not be amenable to capital gain tax. For the effective adjudication of the dispute, the finding of Ld. CIT(A) is reproduced hereunder for ready-reference:- 7.2. "The 3 documents that completely overturn the claims of the appellant are: * the order dated 29.03.2010 relating to consolidation of holdings passed by Commissioner, Gurgaon Division, Haryana Government; * the order dated 23.04.2010 passed under section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, by the Divisional Commissioner, Gurgaon; and * the clarification given by the Tehsildar, Sohna by his letter dated 16.03.2011. 7.3. In the background of consolidation and re-partition of lands being undertaken by the Consolidation Officer in the revenue estate of village Rojka Gujar, where the area under consolidation was found to be more than the actual area shown in the Jama Bandi, Commissioner, Gurgaon Division passed an order ....
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....f illegal entries. It is also possible that on the basis of illegal entries many transactions by way of sale deeds might have occurred and on the basis of such illegal transactions their names might have been included in the record of rights. If these fraudulent owners are not weeded out, then they would become the owners if this scheme of consolidation is implemented.' Finally, the Divisional Commissioner, Gurgaon concluded that the Settlement Officer, Gurgaon was being directed to amend the scheme of consolidation such that * the consolidation should be done only in respect of the actual area as per Parat Sarkar kept in Sadar Record Room, excluding the excess area interpolated by fraud; * the names of the fraudulent owners to be deleted by reviewing the mutations sanctioned earlier; * the mutations sanctioned on the basis of fraudulent entries should be deleted before taking up consolidation proceeding; * the land should be divided only in the two categories of Banjar Kadim and Gair Mumkin Pahar. 7.5. In his letter dated 16.03.2011 to the Addl. DIT (Inv), Delhi, the Tehsildar, Sohna stated that following the discovery of discrepancies, the process of consolidation (....
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....phs, enclosed in the paper book as 'evidence', prove that the lands at Rojka Gujar was agricultural. But, the pictures are random and it is not established that these photographs represent the land at Rojka Gujar taken on 26.03.2007, as claimed by the appellant. 7.9. The appellant has questioned the use of the statements of the previous owner, Hemant Chauhan and the subsequent owner, Kirpal Singh Randhawa, by the AO on the plea that cross examination was not allowed, and at the same time relied upon the statement of the latter that 'part' plantation and cultivation was possible on those lands. But the conclusion, that no agricultural operations were being carried out and that the lands at Rojka Gujar were either Gair Mumkin Pahar or Banjar Kadim, emerges from the reliable revenue records and orders of the Commissioner and Divisional Commissioner, Gurgaon, as discussed above. 7.10. It is also noted that none of the family members, including the appellant, admitted in their statements made u/s. 132(4) recorded during the time of search, that they derived income from agricultural operations, though they did refer to the ownership of lands at village Rojka Gujar. It....
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....sheets with letter 'P' filled in every column cell raise more questions than answers. Therefore, in the absence of any independent and corroborative evidence, the contentions of the appellant remain suppositions bereft of facts that merit rejection. 7.13. To support her claim that agricultural operations were being carried out on lands at village Rojka Gujar, the appellant has advanced an argument that even if agricultural operation was not permissible, land may be said to be agricultural if it is used as such. But, this argument is flawed since for an event to take place, it must be first in the realm of possibility. At this stage it is relevant to refer to the decision of the Hon'ble Supreme Court in the case of CIT v. Raja Benoy Kumar Sahas Roy 32 ITR 466 (SC), where the term 'agriculture' was defined thus: A critical examination of the definition of "agricultural income" as given in section 2(1) of the Indian Income-tax Act and the relevant provisions of the several Agricultural Income-tax Acts of the various States also lends support to this position. In the first instance, it is defined as rent or revenue derived from land which is used for agricultura....
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....ry issue before them and it was held by their Lordships: Para 9. Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The Court has to answer the question on a consideration of all of them-a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts. Para 10. The first decision of this Court which considered the meaning of the expression 'agricultural land' is in CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466. But the question there was whether the income from forest land derived from sal and piyasal trees, 'not grown by human skill and labour' constitutes agricultural income? The decision that directly considered the issue, though under the Wealth-tax Act, 1957 is in CWT v. Officer-in-charge (Court of Wards) {1976} 105 ITR 133 (SC) (hereinafter referred to as the Begumpet P....
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....icultural purposes at or about the relevant time? (3) Whether such user of the land was for a long period or whether it was of a temporary character or by way of a stop-gap arrangement? (4) Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land? (5) Whether, the permission under section 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land? If so, when and by whom (the vendor or the vendee)? Whether such permission was in respect of the whole or a portion of the land? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? (6) Whether the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such cesser and/or alternative user was of a permanent or temporary nature? (7) Whether the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled? Whether the owner meant or int....
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....rs. * Out of 5744 acres, 4,798 acres were notified under sections 4 and 5 of the Punjab Land Preservation Act and remaining was conserved as forest under the greening of Aravalli scheme of the Forest Department. Under the Forest Conservation Act, land under these notifications cannot be diverted for any use other than forest related activities without the permission of the Union Ministry of Environment and Forests. * The consolidation laws, which are aimed at reversing fragmentation of agricultural holdings and reserve common lands, were abused by revenue officers to partition the jointly held Khewat land, though in the absence of agricultural activity there was no fragmented land to consolidate. * Following the discovery of fraud, the Directorate of Consolidation of Holding, Haryana passed an order on 22.08.2012 de-notifying the consolidation proceedings after recording that objective of the scheme of consolidation for betterment of agricultural activities was not being met in respect of lands at village Rojka Gujar that had no human habitation, where the single khewat having a thousand co-owners had joint share in the land, where not a single square inch of the land under c....
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.... other materials or information as are available with the Assessing Officer and relatable to the evidence found ... ... Section 153A(1)(b) provides for the assessment or reassessment of the total income of the six assessment years immediately preceding the assessment year relevant to the previous year in which the search took place. To repeat, there is no condition in this Section that additions should be strictly made on the basis of evidence found in the course of the search or other post-search material or information available with the Assessing Officer which can be related to the evidence found. (emphasis supplied) It is thus evident from the two aforementioned decisions of the jurisdictional' High Court that u/s. 153A, the AO is required to assess the total income of the person in whose case notice u/s. 153A or 153C has been issued. In Chetan Dass Lachman Dass (supra), their lordships have further explained what was stated in para 19 and para 20 in Anil Kumar Bhatia (supra), namely that, in determining the 'total income' there are no fetters, since there is no condition u/s. 153A that assessment has to be confined to the material or relatable to the material....
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....deleted'. Hence, no credence can be placed on the mutation deed filed by the appellant. In the absence of feasibility of agricultural operations on the lands at village Rojka Gujar, the appellant could not have derived agricultural income. Clearly then the sum reflected as agricultural income by the appellant was the income of the appellant from undisclosed sources. Consequently, the income of Rs. 47,060, claimed as agricultural income by the appellant, was correctly treated as income from other sources by the AO. Since the lands in question were not agricultural, it constituted a capital asset and the surplus arising on account of its sale was correctly subjected to capital gains tax by the AO at Rs. 2,32,08,282. As a result, grounds I to 7 of the appeal are dismissed. Appeal against the initiation of penalty proceedings is premature and hence ground 8 of the appeal is also dismissed." 7.3. Submissions on behalf of the assessee:- 1. "That all the 17 captioned appeals involve consideration of common issue, wherein the learned CIT(A) has upheld the order of learned AO by holding that agricultural land sold by assessee is a capital asset and denied exemption so claimed by asse....
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....er). 3.1. At the outset. It IS submitted that. as was also submitted before the learned CIT(A) that the above set of documents statement were never brought to the knowledge of the assessee during the course of assessment proceeding and the same have directly come in the order of assessment. Thus, no adverse interference can be made on the basis of these documents, as the same have not been made available to assessee for rebuttal nor any opportunity to cross - examine has been provided by the lower authorities, even though the same was specifically requested before the learned CIT(A). In this regard, reliance is placed on following case laws: a) [2015] 127 DTR 241 (SC) Andaman Timber Industries VS. CCE b) 258 ITR 317 (Del) United Electricals vs. CIT c) [1980] 125 ITR 713 (SC) KishinchandChellaram vs. CIT d) IT(SS)A No. 12/D/07 Shri RadheyShyam Bansal vs. ACIT e) IT(SS) No. 233 and 234/D/2006 dated 19.09.2008 Shri Manit Gulati and Sandeep Gulati f) 109 TTJ 700 (Del) SMC Share Brokers Ltd. vs. DCIT affirmed in 288 ITR 345 (Del) CIT vs. SMC Share Broker Ltd. g) [2007] 293 ITR 43 (Del) CIT vs. S.M. Aggarwal h) 322 ITR 396 (Del) CIT vs. Ashwani Gupta i) 295 ITR 105 (D....
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....rementioned documents, the learned Assessing Officer had held in the impugned order of assessment that even though the land sold is situated beyond 8 kms from the municipal limits but since, the same is not cultivable, thus, cannot be termed as "agricultural land" and denied the exemption so claimed by assessee with regards to capital gains under section 2(14)(iii) of the Act (kindly see pages 15 to 18 of AO's order). That the order so passed by learned Assessing Officer was also upheld by learned CIT(A) by recording similar findings (kindly see pages 4 to 13 of CIT(A)'s order). 3.4. From the perusal of the above, It may be observed that there is no dispute regarding the fact that condition given as per the section 2(14)(iii) of the Income Tax Act (that the land is not situated a) In any area which is comprised within the jurisdiction of a municipality and which has a population not less than ten thousand according to the last preceding census of which the relevant figures have been published before the first day of the previous year; or b) In any area within such distance, not being more than 8 kms from the local limits of any municipality) is satisfied in the instant ma....
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....d been started as per the notification dated 21/10/1991 and was ongoing, * In this connection, it is important to note that in respect of the area or the land in the possession the assessee the consolidation of land has been completed and in the other parts of Gurgaon the consolidation exercise was in progress. In this connection the assessee received the documents from the consolidation officer. The copy of the documentary evidence in respect of the same being the MALKIYAT AND KHETI BARI KE VIKAS KE ADHIKAR (HAK) issued by the revenue authorities is enclosed at page No. 89 to 92 of PB - I. As such, the findings so recorded by lower authorities that consolidation has not been done is clearly against the facts and is contrary to material available on record. As the consolidation has been done in the case of the land held by the assessee, thus, it cannot be said that the physical possession was not with the assessee. * It is further submitted that the electricity connection was installed at the land at Rozka Gujjar. The copy of electricity bill in respect of the same is enclosed at page No. 157 to 15X of Paper Book-1. The electricity connections were installed from Dakshin Haryan....
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.... instant assessment year the agriculture produce from agriculture activities at Rojka Gujjar were been sold by the assessee in the Mandi. The sale proceeds from the agriculture produce have been received by the assessee through banking channel, which fact has not been disputed or rebutted by lower authorities. Further, the learned Assessing Officer has failed to bring out any instance as to show that the land has been used for purpose other than agriculture purposes. * From the perusal of the above it may observed that all the documentary evidence in respect of agriculture activities have been produced during the course of assessment/appellate proceedings and as such, the assessee has discharged its onus. In this connection, Kerala High court in the case of Commissioner of Income Tax vs. Fagoomal Lakshmichand 1978 112 ITR 009 held what is agricultural land has to be determined on the basis of the present connection of the land with an agricultural purpose and user and not the mere possibility of user in the uncertain future. The burden is on the department to adduce cogent evidence to support its case that the land acquired was not an agricultural property: CWT v. Officer-in-Char....
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....ed at this land and the same has also been consumed. As such the assumption made by the Assessing Officer that the land is Gair Mumkin Pahar is contrary to material available on record and without there been any investigation or enquiry by lower authorities in this regard. iv) Plantation activities are not permissible on this land * That the learned Assessing Officer at page 8 of its order of assessment has mentioned that the summons were issued to the forest officer and the forest officer referred to the Circular No. O.33/PA-2/1990/S 470 dated 11.02.1970 issued by Haryana government (Forests and Animal Husbandry Department). On the basis of this circular the Assessing Officer observed that the plantation activities are not permissible on the land at Rojka Gujjar. With reference to the said circular, it is submitted that second paragraph of the circular is important, which is reproduced below:- "Now, therefore in exercise of the powers conferred by section 4 of the said Act the Governor of Haryana hereby prohibits the following acts for period of 25 years with effect from the date of this order, the areas specified in the schedule annexed hereto the said area forming part of ....
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....ct. * Statement of Hemant Chauhan director Chauhan Builders In the statement recorded it has been mentioned that in the AY 2005-06 and AY 2006-07 the company Chauhan Builders and Construction Pvt. Ltd. has not shown any agriculture income because the land was not able to cultivate. As such in the statement it was not mentioned that in the AY 2008-09 and Assessment Year 2009-10 and subsequently the agriculture activities have not been carried out. Further, it is also Important that in the Column giving the details or KRISHAK the name of the Hemant Chauhan is clearly mentioned in the document titled "Khasra GIRDAWRI AUR PHASAL JANCH". As such the reply of the Hemant Chauhan is contrary to material available on record, * Reply of summon from Randhawa Group In the reply it is clearly mentioned that plantation and cultivation is possible. Further regarding the possession the reply is not true. In this connection we would like to draw your kind attention to the sale deed in the paper book, in respect of land sold to Randhwa Group. In the sale deed it is clearly mentioned that the purchaser has got the ownership and possession of the land. Further the mutation records, electricity....
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....of Commissioner, Gurgaon Division, it was further stated that the lands were either Gair Mumkin Pahar or Banjar Kadim. Therefore, the process of consolidation was abandoned. Ld. CIT DR in sum and substance relied on the finding of the Assessing Officer and Ld. CIT(A). Further, Ld. CIT DR submitted that the Assessing Officer as well as Ld. CIT(A) considered the Circular issued by the State Government of Haryana dated 11.12.1970. It was stated that vide the said notification, Forest Department had prohibited agricultural operations in the land in question. 8. We have heard the rival submissions and perused the material available on records and gone through the orders of the authorities below. The controversy in narrow compass is that whether the land sold by the assessee is an agricultural land hence, excluded from the definition of capital assets as provided u/s. 2(14) of the Act or it is a capital asset hence, amendable to capital gain. There is no dispute with regard to the fact that the land in question was sold by the assessee and no capital gain tax was disclosed and paid on this transaction. During the course of search on Tinna Group, a Purchase Deed 15.06.2006 pertaining to ....
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....its of any municipality or cantonment board referred to in item (A) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (A) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (A) and which has a population of more than ten lakh. Explanation 1.--For the removal of doubts, it is hereby declared that revenue derived from land shall not include and shall be deemed never to have included any income arising from the transfer of any land referred to in item (a) or item (b) of sub-clause (iii) of clause (14) of this section. Explanation 2.--For the removal of doubts, it is hereby declared that income derived from any building or land referred to in sub-clause (c) arising from the use of such building or land for any purpose (including letting for residential purpose or for the purpose of any business or profession) other than agriculture falling under sub-clause (a) or sub-clau....
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....e, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within the distance, measured aerially,-- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh. Explanation.--For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year; (iv) 6 per cent Gold Bonds, 1977, or 7 per cent Gold Bonds, 1980, or National Defence Gold Bonds, 1980, issued by the Central Government; (v) Special Bearer Bonds, 1991,....
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.... shown in the settlement records as entitled to do so, the permission of the Divisional Forest Officer shall not be required and that for this purpose a simple information to the Forest Guard concerned within a fortnight of felling shall do. 2. The collection or removal of grass for any purpose provided that the Divisional Forest Officer, Gurgaon Forest Division, may permit:- (a). The cutting or sale of ripe grass after the rainy season; and (b). The cutting or sale of green grass during the rainy seasons from such portions of the notified area in which grass may have sufficiently established itself. 3. The pasturing of any cattle other than goat, sheep and camels: Provided that in such area where the forest crop is well established and in cases of emergency such as abnormal drought or folds, the Divisional Forest Officer, Gurgaon Forest Division, may through open such area for grazing of the cattle of the land owners on such conditions as may be appropriate in each case. SCHEDULE District Tehsil Village with H.B.No. Description of Khasra Nos. Area in acres Rectangle No. Kila Nos. 1 2 3 4 5 Gurgaon Gurgaon Rojka Gujar H.B.No.172 - 1 to 4....
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....nd in question. Therefore, in our considered view these evidences as relied by the Ld. CIT(A) were not sufficient to hold that land in question was not an agricultural land. The assessee has placed on record Khasra Girdawri i.e. record of the crops found to have been sown at the relevant time. It is mandated by law that the Patwari is required to make on the spot verification of crop sown by the farmers in every cropping season and record the same in Khasra Girdawari. There is nothing on record suggesting that these Khasra Girdawri entries were subsequently cancelled or were not found to be correct. The assessee has placed on record various other evidences to substantiate her claim that the land in question was being used for agricultural purpose. The authorities below have based their finding purely on the observations made during the consolidation proceedings these observations are general nature and are not land specific. Therefore, inquiry related to land in question ought to have been made. Undisputedly, we are concerned with the taxability of sale consideration, it is not the case of the Revenue that sale consideration was not out of transfer of capital asset. The Assessing O....
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....ive use? Whether such cesser and/or alternative user was of a permanent or temporary nature? [v] Whether the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled? Whether the owner meant or intended to use it for agricultural purposes? [vi] Whether the land was situate in a developed area? Whether its physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agricultural? [vii] Whether the land itself was developed by plotting and providing roads and other facilities? [viii] Whether there were any previous sales of portions of the land for non-agricultural use? [xi] Whether the land was sold on yardage or on acreage basis? [x] Whether an agriculturist would purchased the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield? 13. In the case in hand, admittedly it has been recorded by the Revenue official that certain crop was grown by the assessee. The assessee has also placed ....
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.... dated December 23, 1929, under rule 2, sub-rule (2), it is stated that: '(2) The most important classes of uncultivated land are as follows: (a) banjar jadid : land which has remained unsown for four successive harvests: (b) banjar qadim : Land which has remained unsown for eight successive harvests; and (c) ghair mumkin : land which has for any reason become uncultivable, such as land under roads, buildings, streams, canals, tanks, or the like, or land which is barren, sandy or ravines'." 14. This is quotation would show that land which is banjar qadim or banjar jadid or ghair mumkin is land which is not cultivable, but nevertheless, it was held by the court that the said land was an agricultural land. 15. Though a person who is the owner of agricultural land which he does not cultivate and the same is acquired by the Government, there can be little doubt that the compensation amount will not be income. The question that has arisen in this case is whether it makes any difference if the owner happens to be a person who has bought the agricultural land with the object of cavorting it into urban plots. Before such plots have been carved out and steps taken for de....
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....ulture did not change by mentioning in revenue records as 'Ghair Mumkin'. We therefore hereby, direct the Assessing Officer to delete the addition. 15.1. The assessee has also raised a Ground No. 1.10 against initiation of penalty proceedings, the same is held to be premature, hence dismissed. Thus, grounds raised by the assessee are partly allowed. 16. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- "That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction." Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 17. In the result, the appeal of the assessee is partly allowed. 18. Now, we take up ITA No. 5312/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissione....
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....sioner of Income Tax(A) has also erred in justifying the action of the Assessing Officer regarding the levy of the interest and initiating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 18.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 18.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 19. We have considered the rival submissions of the parties and also perused the material available on record. We find that no change into facts and circumstances have been pointed by the Revenue. We, therefore taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandis to the identical grounds raised in this year as well. 20. In the result, the appeal of the assessee is partly allowed. 21. Now, we take up ITA No. 5360/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assesse....
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....uthority after the date of transfer of land by the assessee. 1.10. The learned Commissioner of Income Tax(A) has also erred in justifying the action of the Assessing Officer regarding the levy of the interest and initiating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 21.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 21.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 22. We have considered the rival submissions of the parties and also perused the material available on record. We find that no change into facts and circumstances have been pointed by the Revenue. We, therefore taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 23. In this appeal, the assessee has also raised additional ground on the legality of the as....
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.... Tax(A) has also failed to appreciate the fact that in the documents seized during the course of search khatuani showing the cultivation of Bazra in this area was found which clearly shows these lands are subject to agriculture operation. 1.8 The learned Commissioner of Income Tax(A) has also erred in dismissing the appeal of the assessee without giving a reasonable opportunity of being heard. 1.9 The learned Commissioner of Income Tax(A) has failed to appreciate the fact that order of the Commissioner and Divisional Commissioner, Gurgaon division dated 29/03/2010, 23/04/2010 relied upon (while dismissing the appeal) has been passed by the revenue authority after the date of transfer of land by the assessee. 1.10. The learned Commissioner of Income Tax(A) has also erred in justifying the action of the Assessing Officer regarding the levy of the interest and initiating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 25.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 25.2. Ld. representati....
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....ant herein craves its right to alter, amend, add and/or withdraw any grounds of appeal and/or to take any additional grounds of appeal." 29.1. The grounds raised in this appeal are against the levy of penalty and confirming the same by Ld. CIT(A). The impugned penalty has been levied on the capital gain as computed by the Assessing Officer. Since in the quantum proceedings, the capital gain has been deleted by holding that the land as transferred was agricultural land and therefore, out of the purview of the capital gain tax hence, the penalty levied on the same amount would also deserves to be deleted. The Assessing Officer is therefore, directed to delete the addition. 31. In the result, the appeal of the assessee is allowed. 32. Now, we take up ITA No. 5294/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 2,34,12,500/- in respect of capital gain earne....
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....ating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 32.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 32.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 33. We have considered the rival submissions of the parties and also perused the material available on record. We find that no change into facts and circumstances have been pointed by the Revenue. We, therefore taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 34. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- "That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in overlooking the basic fact that no incriminating material was found during the course of sea....
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....s of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in considering the agriculture income of Rs. 2,38,634/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually us....
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....as under:- "That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is liable to be quashed, as proceedings initiated under section 153C of the Act are without satisfying the statutory conditions envisaged under the Act and are thus, without jurisdiction." Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 42. In the result, the appeal of the assessee is partly allowed. 43. Now, we take up ITA No. 5363/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 2,23,03,125/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of Rs. 29,410/- as income from other sources without going through the facts, details as well as documentary evidence filed during....
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....ar as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 43.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 44. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 45. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- "That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in overlooking the basic fact that no incriminating material was found during the course of search and the assessment as contemplated under section 153A is not a denovo assessment and as such the additions so made by assessing officer which are beyond the scope of assessment under section 153A of the Act and are liable to b....
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....er who has erred in considering the agriculture income of Rs. 28,006/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually used, ordinarily used for agriculture and it is not relevant whether the agriculture operation is permissible or not. 1.6 The order of the learned Commissioner of Income Tax(A) shows lack of application of mind as the Assessing off....
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....oner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 1,65,83,501/- in respect of capital gain earned on transfer of agriculture land and has also erred in considering the agriculture income of Rs. 93,140/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate proceeding. 1.3 The learned Commissioner of Income Tax(A) while dismissing the appeal has failed to appreciate the fact that the capital gain has been earned from agriculture land and it satisfies all the condition given as per statutory provision of Income Tax Act. 1.4 The learned Commissioner of Income Tax(A) has not considered the fact that the agriculture operations have been carried out on the land and all the documentary evidence in support of income and expenses from agriculture operation have been filed during the course of assessment proceeding as well as appellate proceeding. 1.5 The learned Commissioner of Income Tax(A) has ignored the statutory position as per which the land is said to be agriculture land if the same is actually used, ordinarily used for agr....
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....missioner of Income Tax (Appeals) has erred in law and on facts in overlooking the basic fact that no incriminating material was found during the course of search and the assessment as contemplated under section 153A is not a denovo assessment and as such the additions so made by assessing officer which are beyond the scope of assessment under section 153A of the Act and are liable to be deleted in totality." Since we have deleted the addition on merit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 56. In the result, the appeal of the assessee is partly allowed. 57. Now, we take up ITA No. 5314/Del/2014 relating to Assessment Year 2009-10 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in considering the agriculture income of Rs. 1,36,680/- as income from other sources without going through the facts, details as well as documentary evidence filed during the course of appellate....
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....13/Del/2014 relating to Assessment Year 2010-11. 57.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 58. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 59. In the result, the appeal of the assessee is partly allowed. 60. Now, we take up ITA No. 5315/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 1,96,58,868/- in respect of capital gain earned on transfer of agriculture land and has....
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.... of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 60.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 60.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 61. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 62. In the result, the appeal of the assessee is partly allowed. 63. Now, we take up ITA No. 5364/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner ....
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....on of the Assessing Officer regarding the levy of the interest and initiating the penalty proceeding u/s. 271(1)(c) of the Income tax Act. 1.11. The appellant may be permitted to add, alter or amend any of the foregoing grounds of appeal." 63.1. The facts and grounds are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 63.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 64. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 65. In this appeal, the assessee has also raised additional ground on the legality of the assessment order which reads as under:- "That the assessment order passed by learned Assessing Officer is without jurisdictional and void ab-initio and is ....
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....s are identical in this year as well in ITA No. 5313/Del/2014 relating to Assessment Year 2010-11. 67.2. Ld. representatives of the parties have adopted the same arguments as were addressed in ITA No. 5313/Del/2014 (Assessment Year 2010-11) [supra]. 68. We have considered the rival submissions of the parties and also perused the material available on record. Since no change into facts and circumstances have been pointed by the Revenue, we therefore, taking the consistent view, the grounds raised in this appeal are also allowed. Our finding in ITA No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 69. In the result, the appeal of the assessee is partly allowed. 70. Now, we take up ITA No. 5390/Del/2014 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "The order of the learned Commissioner of Income Tax(A) is arbitrary, against law and facts on record. 1.2 The learned Commissioner of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 9,01,250/- in respect of capital gain....