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2022 (6) TMI 643
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....Thereafter, the case was selected for scrutiny under CASS in regard to the capital gain arising out of the sale of the property and a notice under Section 143(2) of the Act was issued on 18.09.2017. It appears from the records that in spite of several notices issued under Section 142 r.w.s. 127 and 142(1) of the Act no body attended neither any written submission was filed on behalf of the assessee whereupon a show-cause notice under Section 144 was issued on 12.12.2017 but without any result. Hence, the Ld. AO proceeded ex-parte. Such proceeding was continued mainly on the basis of the sale deed obtained from the offices of the Sub- Registrar, Gandhinagar in response to a notice under Section 133(6) of the Act wherefrom it appears that the assessee sold five non-agricultural land and two agricultural land situated at Village-Palodiya, Tal. Kadi, Gandhinagar. The assessee has shown sale consideration of Rs. 7,47,11,000/- and after indexed cost of acquisition at Rs. 18,26,347/- claimed deduction under Section 54F to the tune of Rs. 7,60,95,831/-. The show-cause proposing addition in respect of capital gain was issued on 15.12.2017 fixing the date of hearing on 22.12.2017. The conten....
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.... passed the order for N.A. land vide order No. Ji.Pan./Jaman/NSR/Vashi/3151 thi 60/08 dated 27/10/2008. You have claimed deduction u/s. 54F amounting to Rs.7,60,95,831/- out of the Capital Gain arised on sale of the above non-agricultural land, the purchaser made payments to you after deducting TDS. Section 54F is not applicable in your case. Section 54B is also not applicable in your case, as the land was N.A. on 27/10/2008, As per Section 54B of the I. T. Act, the following conditions should be satisfied:- The taxpayer is an Individual or HUF. He transfers an agricultural land. The agricultural land was used by the assessee being an individual or his parent or by HUF for agricultural purposes for a period of two years immediately preceding the date of transfer. In view of the above, you are requested to show cause as to why the amount claimed Rs. 7,60,95,831/- as deduction u/s. 54F of the Act, should not be disallowed. 5. Your compliance to the above show-cause should reach to this office on or before 22/12/2017 failing which assessment will be completed u/s. 143(3) of the Act, making the above disallowance." 3. In response to the s....
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....54F is rejected. 5. The copies of Sale-Deed were obtained from the Sub-Registrar, Kalol. The assessee has sold five non-agricultural, and two agricultural land at Village- Palodia. Taluka-Kalol, Dist.: Gandhinagar, the details of the land as mentioned below. In the return of income, the assessee has shown full value of consideration at Rs.7,47,11,000/- out of which indexed cost of acquisition claimed at Rs.18,26,347/-, balance shown as capital gain Rs.7,28,84,653/-, On balance of Rs,7,28,84,653/-, the assessee has claimed deduction u/s. 54F amounting to Rs.7,60,95,831/-. Penalty u/s. 271(l)(c) of the Act, are being initiated separately for furnishing inaccurate particulars of income/concealment of income to the extent as mentioned above. 5.1 During the entire course of assessment proceedings, the assessee has not made any submission till 22/12/2017 that is upto the last week December, and thereafter part submission made. The submission made rebutted as mentioned in Para-4. Therefore, on the basis of the information available, the Long Term Capital Gain is worked out as under:- Sr. No. Particulars Survey No. Khata No. Admeasuring Sale consideratio....
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....l land at Palodiya 285 25 Hec. Are. Sq, Mtr. 0-54-63 Rs.1,17,72,765/- Rs.1,17,72,765/- 2 Agricultural land at Palodiya 280 132 Hec. Are. Sq. Mtr. 1-25-45 paiki 5,300 sq. mtr. Rs.82,42,000/- Rs.82,42,000/- TOTAL SALE CONSIDERATION Rs.2,00,14,765/- 6.1 It is important to note that these two lands are in vicinity with the other 5 non agricultural land sold by the assessee as mentioned in Para 5. The details are as under:- Sr. No. Particulars of land and area Survey No. Khata No. Area/He./Ar e/S.Mt. Sale consideration 1 N.A. Land-Palodiya 284 240 0-25-29 Rs.88,52,000/- 2 N.A. Land - Palodiya 287 240 0-36-42 Rs.1,27,47,000/- 3 N.A. Land - Palodiya 289 241 0-13-15 Rs.46,02,500/- 4 N.A. Land-Palodiya 290 240 0-24-28 Rs.84,98,000/- 5 N.A. Land-Palodiya 291 242 1-14-32 Rs.4,00,12,000/- 6 Agricultural land at Palodiya 285 25 0-54-63 Rs.1,17,72,765/- 7 Agricultural land at Palodiya 280 132 1-25-45 paiki 5,300sq. mtr. Rs.82,42,000/- 6.2 The assessee has offered the 5 land mentioned in Para 5 f....
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....result. When the reason for such non-cooperation of the AO was put before the Ld. D.R. at the time of hearing of the matter, he candidly submitted before us that 20 days time was not sufficient for the Ld. AO to prepare the remand report particularly for work pressure due to time barring assessment. However, additional evidences so submitted by the appellant was admitted by the Ld. CIT(A) condoning the delay of 5 days in filing the appeal preferred by the assessee and the Ld. CIT(A) proceeded with the matter for decision. 7. The plea taken by the assessee before the Ld. CIT(A) in order to justify non-disclosure of capital gain arising out of sale of agricultural land to the tune of Rs. 2,00,14,765/- in her return of income is this that the assessee is 75 years old lady, not an expert about the Income Tax Law; she does not fall to the tax audit requirements as per Section 44AB of the Act, neither having a Tax Auditor/CA to guide her about the Income Tax Laws and Regulations. Further that the land is beyond 8 Km from the local limits of the Municipality and thus, not a capital asset. In support of this submission the certificate to that effect from the Palodiya Gram Panchayat h....
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....er jurisdictional ratio laid down by Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. - 187 ITR 688 (SC). The additional evidences were decided to be admitted as per detail contained in para 3.1 of this order. The controversy revolves around two major issues: (a) Exempt income from the sale of agricultural plots, (b) Deduction u/s.54F for capital gains earned from the sale of non-agricultural plots. The first issue relating to non-taxable gains as the sale effected is of agricultural land is considered. The detail of such land is as under: Sr.No. Date Survey No. Type Amount (Rs.) 1. 21.05.2014 280 Agricultural 82,42,000 2. 21.05.2014 283 Agricultural 74,13,200 3. 21.05.2014 285 Agricultural 1,17,72,765 The appellant has sold three agricultural land pieces. The google map indicates that Palodiya village is a distance of 9.7 Kilometers via Shilaj Road and 9.2 kilometers via Bopal from the outer limit of AMC. This is independent evidence which cannot be manipulated and is on record. Further, the certificate of Gram Panchayat dated 17.04.2018 is reproduced as ....
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....mit is to be taken from the area which has been notified by the Central Government in its gazette notification. Central Government has notified the area on 06.01.1994, and from that notification, the agriculture land of the assessee was situated beyond a distance of 8 KMs. This aspect has been lucidly considered by the Id. CIT(A) in the finding extracted supra. We do not see any reason to interfere in this finding. In view of the above discussion, we do not find any merit in the appeal of the Revenue. It is dismissed. " The issue stand covered through ratio in following case laws: CIT vs. Satinder Pal Singh 229 CTR 82 [P&H) CIT Vs. Madhukumar N. HUF-23 Taxmann.com 341 (Kar. HC) CIT vs. Khoobsurat Resorts Pvt. Ltd. - ITA No. 776 of 2011 dt. 05.11.2012 (Delhi HC) Smt. (Dr.) Subha Tripathi Vs. Dy.CIT - 34 Taxmann.com 286 (ITAT, Jaipur) Satya Dev Sharma Vs. ITO - 46 Taxmann.com 149 (ITAT, Jaipur) DCIT Vs. Arjit Mitra - 16 Taxmann.com 66 (ITAT, Kolkata) The appellant has clearly stated that the provision of taxing capital gains are only applicable in case of a capital asset and as the Rural agricultural land situate....
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....tural 84,98,000 5 2105.2014 291 Non-Agricultural 4,00,12,000 The AO has made following argument to disallow deduction u/s.54F: i) The agreement is made between Madhavray Kalabhai Savani, partner of M/s. Savani Infrastructure (The Vendor) and Smt. Narmadaben Savani (The Vendee). ii) In the agreement to sell, no where mentioned that the scheme is residential or commercial? iii) The details of payments made have not been mentioned in the agreement. It is only mentioned that purchasers had agreed to purchase the two floors for a total consideration of Rs.760.96 lakhs. iv) The Vendor Madhavray Kalabhai Savani, is assessee's husband. Further, it is seen that the "Agreement to Sell" is unregistered document and the same was not even notarized. The unregistered document has no evidentiary value as per Section 17 of the Registration and other related laws (Amendment) Act, 2001 as well as Section 53A of the Transfer of Property Act. v) The unregistered and un-notarized agreement of sell has been provided only on 28.12.2017 i.e. only three days before the time barring assessment. vi) The mode of payment of pu....
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....ellant, and the same is viewed with reference to the issue involved. Further it is explained with documentary proof that the plot of the scheme of M/s Savani Infrastructure falls under CBD Zone (Central Business District Zone) which is a combination of Residential and Commercial house as per the ADDA/AMC Regulations. A copy of Zoning Certificate on record clearly says that the project is under central business district (CBD) Zone. The definition for "use and zone" has been filed wherein in Government record as per para 9.1.9 Central Business District means "This is the central business and commercial core of the city which includes a mix of officers, retail and other business uses, along with some residential developments." City Survey Superintendent, Ahmedabad record also filed by the appellant. M/s. Savani Infrastructure has issued allotment letter dated 10.04.2015 which says as under: "M/s. Savani Infrastructure is a partnership firm having its registered office at 203. Mauryansh Elenza, Shyamal Cross Road, Satellite having PAN: ACLFS3509F. The firm is executing a construction project of 11 floors situated at 3 World Centre. This is to confirm that floor No. 10....
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....e the appellant is eligible to get deduction u/s.54F as per ratio laid down in the following case laws: Ajeetkumar Jaiswal vs. ITO- ITA No.1707/Hyd./2016 (A.Y.2013-14) ACIT vs. Umayal Annamalai - ITA No.415/Mds./2015 & C.O.No.43/Mds/2015 (A.Y.2005-06) Smt. Rajneet Sandhu Vs. DCIT (ITAT, Chandigarh) - ITA N0.392/CHD/2010 dt. 28.07.2010 Smt. Shashi Verma Vs. CIT-224 ITR 106(MP) CIT Vs. Sadarmal Kothari - 302 ITR 286 (Mad.) Mr. P.R. Kulkarni & Sons (HUF) vs. Addl. CIT - ITA No.569/Bang/2009 (A.Y.2006- 07) Even investment in the firm by the appellant were her husband is a partner is not a valid ground because as per Section 2(31) of the Income Tax Act, 1961 individual and firm are-two separate legal persons. The appellant also has proved the fact that it has received an allotment letter wherein it is mentioned that residential units would be allotted to the appellant by the builder. The entire amount of Capital Gain is invested by her on or before 3170372015 which is within Assessment Year 2015-16, the year under consideration. The ratio laid down in the case laws (supra), states that if the entire amount of Capita....