TaxTMI 
TaxTMI 
2022 (4) TMI 450
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.... return of income for the year under consideration on 25.08.2012 declaring total income of Rs. 4,95,370/- and agricultural income of Rs. 1,88,528/-. During the year under consideration, ancestral agricultural land jointly owned by the assessee with his wife Smt. Meenaben Gautambhai Patel, situated at Gota, Daskroi, District Ahmedabad, was sold by the assessee for a total consideration of Rs. 9,28,80,948/- and his share of long term capital gain arising from the said sale was declared by the assessee in the return of income amounting to Rs. 22,05,090/-. While computing the said long term capital gain, cost of the agricultural land as on 01.04.1981 was taken by the assessee at Rs. 32,22,240/- on the basis of the Registered Valuer's Report dated 15.03.2015. According to the Assessing Officer, the valuation made by the Registered Valuer in his report did not represent fair market value of the property jointly owned by the assessee with his wife as on 01.04.1981. He, therefore, made a reference to the DVO, Ahmedabad under section 55A of the Act for estimating the fair market value of the property as on 01.04.1981. The DVO, vide his report dated 16.03.2015, determined the fair market val....
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....market value (FMV) of a Capital Assets for the Purpose of Computation of Capital gain, the Assessing Officer (A.O.) may refer the 'Valuation of Capital Asset to a Valuation Officer of the Income Tax Department in the following situations; a) In a case where the value of the asset, as claimed by the assessee, is in accordance with the estimate made by a registered valuer, and the A.O. is of opinion that the value so claimed is less than its market value;,..........." As can be seen it clearly lays down that in a case where the value of the asset, as claimed by the appellant, is in accordance with the estimate made by a registered valuer and the A.O. is of the opinion that the value so claimed is less than its market value, with a view to ascertaining the FMV of a Capital Asset for the purpose of computation of Capital gain, the A.O. may refer the Valuation of Capital Asset to a Valuation officer of the Income Tax Department. Therefore, from the bare reading of the above provision, it is crystal clear that A.O. has power to refer the FMV to DVO in the situation of FMV claimed by the appellant is in accordance with the estimate made by a report of the registered ....
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....the provisions of Section 55A of the Act as applicable to the year under consideration, i.e. AY 2012-13, and also relied on various judicial pronouncements including the judgements of Hon'ble Gujarat High Court. The learned DR in this regard has submitted that the relevant provision of Section 55A of the Act has been amended by the Finance Act, 2012 with effect from 01.07.2012 whereby the words "is less than its fair market value" are substituted by "is at variance with its fair market value". He has contended that this amendment is an enabling provision and since the same is procedural in nature, the reference made by the Assessing Officer to the DVO after 01.07.2012 was in accordance with law. In support of this contention, he has relied on the decision of Hon'ble Supreme Court in the case of Memon Abdul Karim Haji Tayab Vs. Dy. Custodian General (1964 AIR 1256 (SC)) wherein it was held that procedural amendments to a law apply, in the absence of anything to the contrary, to all actions after the date they come into force even though the actions may have begun earlier and the claim on which the action may be based may be of an anterior date. In this regard, it is observed that a ....
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....f the Act. 8. In the computation of Long Term Capital Gain arising from the sale of agricultural land, a deduction of Rs. 86,50,005/- was claimed by the assessee under Section 54B of the Act for the investment made in purchase of two new agricultural lands. In this regard, it was noted by the Assessing Officer that his agricultural land was transferred by the assessee on 13.06.2011 while the new agricultural lands were purchased by him on 07.05.2011 and 16.05.2011. Since the assessee, as per provision of Section 54B of the Act, was entitled to claim deduction only in respect of new agricultural land purchased within two years after the date of transfer of old agricultural land, the Assessing Officer was of the view that the assessee was not entitled to claim deduction under Section 54B of the Act in respect of new agricultural lands purchased prior to the date of transfer of old agricultural land. In this regard, it was explained by the assessee that his old agricultural land was transferred by him on 11.04.2011 itself within the meaning of Section 2(47)(v) of the Act since banakhat (agreement to sale) was executed on 11.04.2011 and the possession of the land was also given on t....
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....after 13.06.2011 but before 14.06.2013. Since you have purchased new asset after 13.06.2011 and 16.05.2011 i.e. before the transfer of the original asset, the assessee failed to comply with the provisions of Section 54B(1) of the Act. Therefore, purpose to disallow your claim of deduction amounting to Rs. 22,05,090/- and add it to your total income for A.Y.2012-13." It is mentioned that the appellant is co-owner Of new asset alongwith wife Smt. Minaben G. Patel and the same issue for same asset was decided in a detailed appellate order dated 31.08.2015. As the asset remain the same, the findings in the order dated 31.08.2015 are reproduced as under: - "......... the appellant entered into a notarized Agreement to sale coupled with possession on 11/04/2011. As per provision of section 2(47)(v) it is transfer as the term 'Transfer' includes possession. The section 2(47) reads, "Transfer, in relation to capital asset, includes, ................... (v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property. Act,....
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....816, Block No.53, Village Chekhla 23,83,333 26/05/2011 Survey No, 816, Block No. 53, Village Chekhla 23,83,333 26/05/2011 Survey No. 816, Block No. 53, Village Chekhla 96,50,001 As it can be seen above, the appellant had invested the received funds to Purchase New Agricultural lands. I find that From No. 12 from Accounting Year 2005-2006 to accounting Year 2011-2012 (PB-51-52) which shows name of the crop, area of crop etc. for the land sold during concerned year has been placed on record by the appellant. In addition to it, Form No. 8A also shows that the said land was used for Agriculture purpose. The AO has gone to the extent of intention to convert the land to Non agriculture (NA) which is not at all the requirement of Law to claim deduction u/s 54B of the Act, 1961. As per the two additional documents filed by the appellant though analysis not necessary to arrive at decision in the matter (sent to AO for comments on 10.08.2015 within 15 days), indicate that the State Govt. ordered to pay additional premium amount for converting the land into NA is vide order dated 03.08.2011 and the final order for NA is dated 30.05.2012. These....
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....in liability as the new investment is of Rs. 86,50,005/- against the LTCG of Rs. 22,05,090/-) in new agricultural land against the LTCG arising out of sale of old agricultural land in question." 10. We have heard the arguments of both the sides on this issue and also perused the material available on record. The learned DR has contended that the relevant provisions of Section 54B are very clear and specific and the assessee can claim deduction under the said provisions only when the new agricultural land is purchased within two years after the date of transfer of original asset, i.e. old agricultural land. He has contended that since the assessee in the present case had purchased new agricultural lands before the date of transfer of old agricultural land, he is not entitled for deduction under Section 54B of the Act as rightly held by the Assessing Officer. In support of this contention, he has relied on the decision of this Tribunal in the case of Paras Chinubhai Jani Vs. PCIT, [2019] 177 ITD 591 (Ahd Trib.), wherein it was held that deduction under Section 54B is permissible only where capital gain is utilized for purchase of new land within the period specified after transfer....
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....transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] 11. It is observed that the learned CIT(A) in his impugned order has also relied on the provision of Section 2(47)(v) of the Income-tax Act, 1961 read with Section 53A of the Transfer of Property Act, 1882 to hold that the original asset, i.e. old agricultural land, was transferred by the assessee on 11.04.2011 and the new agricultural lands having been purchased by the assessee within the period of two years after the said date of transfer, he was entitled to claim deduction under Section 54B of the Act. This conclusion is arrived at by the learned CIT(A) after having found that the agreement to sale the original asset, i.e. old agricultural land, was executed by the assessee on 11.04.2011 which was duly notarized and even the possession of the said land was handed over by the assessee to the purchaser at the time of execution of the agreement to sale. As further found by the learned CIT(A) from the....