TaxTMI 
TaxTMI 
2021 (10) TMI 695
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....ing to Assessment Year 2010-11 as a lead case, 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 ....
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....visaged under the Act and are thus, without jurisdiction." FACTS 4. The facts giving rise to the present appeal are that a search 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 ....
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....PAHAR" as described in the Sale Deed being a barren land therefore, neither the agricultural operation could be carried out nor such operations 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 ....
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....gha 4 Bishwa, a proportionate cut will be imposed on all the owners. By doing so the Consolidation officer has tried to legalise the fraudulent owners who have become owners as a result of 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 categorie....
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....rch 2011, when the Tehsildar, Sohna wrote to the Addl. DIT (Inv), Delhi, the process of consolidation had not been resumed and hence consolidation could not have been completed. 7.8. The appellant has claimed that the copy of photographs, 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....
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....at Rojka Gujar by making 'payments to 'Guru Farms & Nurseries', are evidently make-believe assertions. No. detail was provided about 'Guru Farms & Nurseries' either at the assessment or the appellate stage. The copies of 'attendance register' 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 ....
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....ge Rojka Gujar, As held by the Privy Council in Raja Musthafa Alikhan v. CIT 16 ITR 330 (PC) it was the appellant's burden to prove that exempt agricultural income was being earned. 7.14. In the case of Sarifabibi Mohammad Ibrahim v. CIT 70 Taxman 301 (SC)/204 ITR 631 (sq, the Apex Court had this very 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 f....
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....ators had been evolved to determine whether land was agricultural or not. The 13 factors approved by the Apex Court were the following: (1) Whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue? (2) Whether the land was actually or ordinarily used for agricultural 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 ....
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.... 7.15. The facts of the case at hand are: * Lands of village Rojka Gujar, which is an uninhabited village on the outskirts of Faridabad and falls in the Aravalli hills, are categorized as Gair Mumkin Pahar or Banjar Kadim. * In the revenue records, the village is described as Be-Chirag (without human habitation) and consists of sparsely forested, denuded land. The land of the village was under a single Khewat (revenue number) shared by co-owners. * 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. ....
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.... income of an assessee whose case is covered by Section 153A, by even making reassessments without any fetters, if need be. (emphasis supplied) In the case of CIT v. Chetan Dass Lachman Dass 25 Taxman.com 227 (Delhi), their lordships held: Para 11 ... Section 153A which provides for an assessment in case of search, and was introduced by the Finance Act, 2003 w.e.f. 01.06.2003, does not provide that a search assessment has to be made on the basis of evidence found as a result of search or other documents and such 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) I....
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.... the Divisional Commissioner, Gurgaon establish beyond doubt that no agricultural operations could have been performed on the lands at village Rojka Gujar were ownership was joint and not identifiable and the soil was rocky and barren. They also reveal that fraud was committed and interpolations were made by the local revenue officers in the record of rights. Hence, the documents of Jama Bandi and Girdwari, cited by the appellant, were not reliable pieces of evidence. The authorities also noted that the fraud had led to subsequent acts, such as mutation, which too had to be '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 ....
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....ished before the Assessing Officer during the course of assessment proceedings, wherein, it was mentioned that the land is "GAIR MUMKIN PAHAR" (kindly see page 3 of the AO, Order and sale deed at page 154 to 156 of PB-I). (ii) Circular issued by Forests and Animal Husbandry Department, Haryana Government (kindly see pages 3 to of AO's order). (iii) Tehsildar letter dated 16.03.2011 and order of Commissioner, Gurgaon (kindly see pages 6 to 13 of AO's order). (iv) Statement of Sh. Hemant Chauhan dated 29.03.2011 (kindly see page 14 of AO's order). (v) Letter from Sh. Randhawa dated 28.05.2011 (kindly see page 15 of AO's order). 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 authori....
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....cellence Town Planner (P) Ltd. e) ITA No. 1125/D/2012 A.Y. 2002-03 dated 01.06.2012 ITO vs. M/s. Hi Tech Accurate Communication (P) Ltd. f) ITA No. 1177/D/2012 A.Y. 2002-03 dated 05.10.2012 ITO vs. M/s. India Texfab Marketing Ltd. g) ITA No. 4498/D/2010 A.Y. 2003-04 dated 30.12.2010 Intimate Jewels (P.) Ltd. h) ITA No. 1078/Del/2013 Mithila Credit Services Ltd. vs. ITO i) ITA No. 212/2012 (Del) dated 11.04.2012 CIT vs. Goel Sons Golden Estate (P) Ltd. j) ITA No. 50/Del/2011 ACIT vs. Panchanan International Pvt. Ltd k) ITA No. 535/Del/2009 dated 31.03.2015 Asst. CIT vs. Lakshmi Float Glass Ltd. l) ITA No. 71, 72 & 84 of 2015 (Del) dated 12.08.2015 CIT vs. Vrindavan Farms Pvt. Ltd. 3.3 Be that as it may, on merit, the assessee appellant seeks to submit that on the basis of the aforementioned 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 c....
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.... Sohna (Haryana) is a joint account (SHAMIL KHATA) land and though the shares of the owners are definite but the owners cannot claim that they are owner of particular piece of land. Their shares are definite but undivided, since no consolidation in respect of land at Village Roj Ka Gujjar, Distt Sohna (Haryana) has taken place, though one can sell land, one cannot hand over the physical possession to the purchaser. As such the finding of learned AO and CIT(A) is that no physical possession in respect of the land was with the assessee. * In this connection we would like to submit and draw your honour's kind attention to the order passed by the Commissioner, Gurgaon attached with the reply of Tehsildar, Sohna (page No. 9 of the assessment order), Wherein the Commissioner, Gurgaon has stated that consolidation process is under way in village Rojka Gujjar, Thus. it is submitted that consolidation of the land had 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 ....
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....ing submissions. * That during course of search voluminous documents were seized and page No. 105-106 of the party No. R-1, Annexure A-5, of the seized document is the copy of KHASRA GIRDAWRI AUR PHASAL JANCH (the copy in respect of the same is enclosed at page Nos. 159 to 164 of Paper Book-1) issued by the revenue department. In the KHASRA GIRDAWRI OR PHASAL JANCH the details of the agriculture produce being the Bajra and other agriculture items produced on the land at Rozka Gujjar is clearly mentioned. The document establishes the fact that the agriculture activity have been done on the land at Roj ka Gujjar. * Thus, from the perusal of the documentary evidence in respect of consolidation done by the land consolidation officer it is important to note that the word MALKIYAT AND KHETI BARI KE VIKAS KE ADHIKAR (HAK) is mentioned in the document. As such the assessee got the possession and all the right of agriculture. * It is also submitted that during the 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 ....
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....d at page No. 165 of PB - I), clearly shows the actual site photographs (If the land at Rozka Gujjar taken on 26/03/2007. In the photographs it is clearly visible that the land is not mountainous but is properly developed with barbed fencing. Further the various crops grown on the land and the temporary huts built for the labour on the land also support the contention of the assessee. These documents are part of records available With the Income Tax department, which were never rebutted by the lower authorities nor even discussed ill the orders so passed by learned AO and CIT(A). * It is also submitted that even if it is assumed that land is Gair Mumkin Pahar, then in that case the area will be inhibited and in that case electricity connection cannot be sanctioned by the electricity department. However, in the instant case electricity connection has been sanctioned and the copy of electricity bill is at pages 157 to 158 of PB - I, which clearly establishes the fact that the electricity connection is installed 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 avai....
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....henticity or applicability of the various documents/statements as relied by the Assessing Officer in the assessment order:- * Reply of the summon from the Tehsildar, Sohna The Tehsildar Sohna has nowhere stated in the reply that consolidation has not been completed in respect of the land held by the assessee but only stated that consolidated exercise for the entire village has not been completed because of some title issue noticed in the land records. Further as discussed above the documentary evidence to support that the consolidation has been completed and the physical possession was with the assessee, as has been submitted in earlier paragraphs. Further during the course of search the page No. 105-106 of the party No. R-1, Annexure A-5 of the seized document being the copy of KHASRA GIRDAWRI AUR PHAASAL JANCH issued by Patwari along with the photograph and electricity bill clearly shows that the agriculture activities have been carried out by the assessee. As such the reply of the Tehsildar that the land is Gair Mumkin Pahar is clearly against the fact. * Statement of Hemant Chauhan director Chauhan Builders In the statement recorded it has be....
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....4.2010, the Divisional Commissioner, Gurgaon recorded that the Settlement Officer (Consolidation) cum District Revenue Officer, Gurgaon had reported that the Jama Bandi, known as Parat Sarkar, and kept in Sadar Record Room, showed land of 9190 Bigha 9 Bishwa in the revenue estate of Rojka Gujar of which 1379 Bigha 19 Bishwa was Banjar Kadim and 7810 Bigha 10 Bishwa was Gair Mumkin Pahar. As against this, the Jama Bandi, known as Parat Partwar and available with the Patwari, showed land of 9895 Bigha 1 Bishwa, which was excess by 847 Bigha 4 Bishwa. Ld. CIT DR further pointed out that Ld. CIT(A) had recorded the finding of the Divisional Commissioner who had stated that there were only two types of land namely, Banjar Kadim and Gair Mumkin Pahar, and there was "interpolations in the record of rights" (Jama Bandi). Ld. CIT DR submitted that as per the letter of Tehsildar, Sohna to the Additional DIT (Inv.), Delhi dated 16.03.2011, it was stated that following the discovery of discrepancies, the process of consolidation (chak bandi) had been stopped in respect of the lands at Village Rojka Gujar on the orders of Commissioner, Gurgaon Division, it was further stated that the lands were....
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....ultivator or the receiver of rent-in-kind, of any land with respect to which, or the produce of which, any process mentioned in paragraphs (ii) and (iii) of sub-clause (b) is carried on: Provided that-- (i) the building is on or in the immediate vicinity of the land, and is a building which the receiver of the rent or revenue or the cultivator, or the receiver of rent-in-kind, by reason of his connection with the land, requires as a dwelling house, or as a store-house, or other out-building, and (ii) the land is either assessed to land revenue in India or is subject to a local rate assessed and collected by officers of the Government as such or where the land is not so assessed to land revenue or subject to a local rate, it is not situated-- (A) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, 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....
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....ing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, but excludes-- (a) jewellery; (b) archaeological collections; (c) drawings; (d) paintings; (e) sculptures; or (f) any work of art. Explanation 1.--For the purposes of this sub-clause, "jewellery" includes-- (a) ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel; (b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel. Explanation 2.--For the purposes of this clause-- (a) the expression "Foreign Institutional Investor" shall have the meaning assigned to it in clause (a) of the Explanation to section 115AD; (b) the expression "securities" shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956); (iii) agric....
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....ons could be carried out and permitted by law. A great stress was laid on the notification No. S.O.46/P.A.-2/1900/S.5/70 dated 11.02.1970 which reads as under:- "No. S.O.45/P.A.-2/1900/S.5/70-Whereas certain areas mentioned in the Schedule annexed hereto are comprised within the limits of the local areas notified under section 3 of the Punjab Land Preservation Act, 1900 with erstwhile Punjab Government notification No. 9419-D, dated the 30th September, 1948, whereas in respect of the said areas the Governor of Haryana is satisfied after due inquiry that the regulations, restrictions and prohibition hereinafter specified are necessary for the purpose of giving effect to the provisions of the said Act. Now, therefore, in exercise of the powers conferred by section 5 of the said Act, the Governor of Haryana hereby prohibits the following acts for a period of 25 years, with effect from the date of this order, in those areas:- 1. The cutting of trees or timber or brush wood and the lopping of trees for any purpose; provided that the Divisional Forest Officer, Gurgaon Forest Division, may permit:- (a). The cutting of trees for house building an agricul....
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....al is placed before us except the statement of one Shri Hemant Chauhan stating that no agricultural activity was carried out by him. It is pointed by the Ld. Senior Counsel for the assessee that statement of Shri Hemant Chauhan pertains to earlier assessment year which is not relevant for the present proceedings. We at this juncture cannot set the clock back and find out by making on spot inspection whether agricultural activity is being carried out or not. We have no option but to adjudicate the issue purely on the basis of material placed before us by the parties. It is observed from the record that the Assessing Officer has grossly failed to verify the veracity of claim of the assessee by making on the spot inquiry. 11. Further, we find the Ld. CIT(A) has heavily relied on the order of the Commissioner, Gurgaon dated 29.03.2010 who had made certain adverse observations regarding consolidation proceedings. In our considered view, those observations related to legality of consolidation proceedings that has nothing to do with the taxability of the sale consideration on the transfer of land in question. These proceedings relate to title of the property and operate in all together....
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....eed or in the revenue records as barren land does not make the land non-agricultural. It is contended that such nomenclature would not change the character and category of land. 12. The Hon'ble Supreme Court in the case of Smt. Sarifabibi Mohmed Ibrahim vs. Commissioner of Income-Tax, [1993] 204 ITR 631 [SC] has held that "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". Hon'ble Gujarat High Court in the case of Commissioner of Income Tax, Gujarat-II v. Siddharth J. Desai 139 ITR 628 has held that "several tests have been evolved." Few of them are - "[i] Whether the land was classified in the revenue records as agricultural and whether it was subject ....
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....ification by further extending the period. The Assessing Officer did not make any enquiry from the Village as well as from other land owners of the surrounding areas. Nothing is placed on record to prove the fact that entry recorded in the Revenue records related to the land was cancelled by the Competent Authority. Further, the Assessing Officer has not brought any material on record suggesting that no agricultural operation was possible on the land in dispute. 14. On the contrary, the assessee has furnished documents in the form of photographs, electricity connection and proof of sale of agricultural produces. At the time of hearing, Ld. Counsel for the assessee has also placed reliance on the judgment of Hon'ble Delhi High Court in the case of DLF United Ltd. vs. CIT [1986] 158 ITR 342 on identical facts. The Hon'ble High Court was pleased to decide the issue in favour of the land owner by observing as under:- 13. "Learned counsel for the assessed has referred to a judgment of this court in Gaon Sabha of Lado Sarai v. Jage Ram, 2nd [1973] 1 Delhi 984, where some useful observations have been made regarding the nature of agricultural land. It was stated by the....
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....of a capital asset, but the definition of capital asset excludes agricultural land as per section 2(14)(iii). As the character of this land remained agricultural land, the gain would not be taxable. It is necessary here to mention that the amount of Rs. 2,55,571 mentioned in the question is the extra compensation over and above the cost of the acquired agricultural land. So, in actual fact, the question is related to a capital gain resulting from the acquisition of the land in question." 15. There is another aspect of the matter that the Land Revenue Authorities had recorded a finding that physical possession was not handed over as the consolidation proceedings were not completed. The ordinary corollary of such findings would be that no transfer of land took place which is self-contradictory for the stand of the Assessing Officer for charging capital gain tax on transfer of land. Therefore, in the absence of any cogent evidences to rebut the claim of the assessee that the land in question was being used for agricultural purposes, and the evidences as supplied by the assessee not being found to be false and fabricated, we are unable to sustain the findings of the Assessing Office....
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....er 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 officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income 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 ....
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.... 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 officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income Tax(A) has also failed to appr....
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....see is partly allowed. 25. Now, we take up ITA No. 5361/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 considering the agriculture income of Rs. 2,16,000/- 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 ....
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....A No. 5313/Del/2014 for Assessment Year 2010-11 would apply mutatis mutandi to the identical grounds raised in this year as well. 27. 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 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. 28. In the result, the appeal of the assessee is partly allowed. 29. Now, we take up ITA No. 1766/Del/2017 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1. "The order of the learned Assessing officer is arbitrary, against law and facts on record. 2. The learned ....
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....t 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 officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income Tax(A) has also fail....
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....rit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 35. In the result, the appeal of the assessee is partly allowed. 36. Now, we take up ITA No. 1765/Del/2017 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1. "The order of the learned Assessing officer is arbitrary, against law and facts on record. 2. The learned Commissioner of Income Tax(A) while confirming the penalty or Rs. 48,54,381/- has erred in not considering that the conditions given in section 271(1)(c) of the Income Tax Act for levy of penalty is not fulfilled in this case and there are no concealment to attract the penalty u/s. 271(1)(c) of the Income Tax Act. 3. The learned Commissioner of Income Tax(A) has erred in not considering the fact that in the order passed u/s. 143(3)/153C or the Income Tax Act addition of Rs. 2,35,14,140/- have been made without going through the details, statutory provisions as well as documentary evidence filed during the course of assessment proceeding and ignoring the fact that no incriminating material in respect of addition so made have been f....
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....he Assessing officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income 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....
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....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 officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income Tax(A) has al....
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....rit, this ground has become of academic nature only hence, not being adjudicated and kept opened. 46. In the result, the appeal of the assessee is partly allowed. 47. Now, we take up ITA No. 1767/Del/2017 relating to Assessment Year 2010-11 filed by the assessee. The assessee has raised following grounds of appeal:- 1. "The order of the learned Assessing officer is arbitrary, against law and facts on record. 2. The learned Commissioner of Income Tax(A) while confirming the penalty or Rs. 34,63,600/- has erred in not considering that the conditions given in section 271(1)(c) of the Income Tax Act for levy of penalty is not fulfilled in this case and there are no concealment to attract the penalty u/s. 271(1)(c) of the Income Tax Act. 3. The learned Commissioner of Income Tax(A) has erred in not considering the fact that in the order passed u/s. 143(3)/153C or the Income Tax Act addition of Rs. 1,66,76,641/- have been made without going through the details, statutory provisions as well as documentary evidence filed during the course of assessment proceeding and ignoring the fact that no incriminating material in respect of addition so made have been f....
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....e Assessing officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income 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 ....
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....h 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 officer has not disputed the documentary evidence in respect of physical possession of the land as well as agricultural operation carried out on the land like Khasra Girdawari, electricity connection, land records, actual site photographs etc. 1.7 The learned Commissioner of Income 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 relie....
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....iculture 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 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 officer has ....
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....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 also erred in considering the agriculture income of Rs. 86,960/- 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....
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.... 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 of Income Tax(A) has erred in justifying the action of the Assessing officer who has erred in making addition of Rs. 6,26,562/- in respect of capital gain earned on transfer of agriculture land during the year 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....
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....l 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 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. 66. In the result, the appeal of the assessee is partly allowed. 67. Now, we take up ITA No. 5375/Del/2014 relating to Assessment Year 2008-09 filed by the assessee. The assessee has raised following grounds of appeal:- 1.1. "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 Asses....
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.... 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 earned on transfer of agriculture land during the year 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 ....