TaxTMI 
TaxTMI 
2024 (11) TMI 385
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....148 is challenged as being void ab-initio and without proper jurisdiction. It is urged that the very foundation of the assessment is flawed and, therefore, the said action, as well as the subsequent assessment framed u/s 144/147 dated 28.12.2019, be quashed. 3.1 Addition of Rs. 92,33,878/- Long Term Capital Gain: The Id. CIT(A) erred in law as well as on the facts of the case in confirming the addition made by the AO on account of Long Term Capital Gain invoking S.50C on Agricultural lands. It is asserted that agricultural lands do not qualify as Capital assets u/s 2(14) of the Act. The addition is argued to be inconsistent with both law and facts, and therefore, it is prayed that the said addition be fully deleted. 3.2 Alternative Ground Capital Gain Without Benefit of COA: Alternatively and without prejudice to the above, the Id. CIT(A) further erred in law as well as on the facts of the case in confirming the addition made by the AO in respect of capital gain on the sale of land without granting any benefit of the cost of acquisition (COA). The addition, made without providing the COA benefit, is asserted to be contrary to the statutory provisions and facts on ....
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....1/5th of total consideration). The assessee was asked to furnish documentary evidence in respect of deduction claimed by him for the A.Y. 2012-13 by issuing notice u/s 133(6) of the I.T. Act, 1961. However, the assessee has not complied with the same. Thus, the taxability on the above transaction could not be ascertained by the ld. AO. Consequently, notice u/s 147 of the Act was issued on 29.03.2019 after obtaining necessary approval from the competent authority and served upon the assessee through post and online. Thereafter, notices u/s 142(1) of the Act were issued from time to time to the assessee for furnishing information. In compliance to notice u/s 148 of the Act, assessee filed his ITR on 13.11.2019 declaring total income of Rs. 2,04,220/-. However, the ITR filed was not verified hence notice u/s 143(2) of the IT Act, 1961 could not be generated from the system. Further, in response to notice u/s 142(1) of the Act, assessee furnished submission along with copy of sale / purchase deed. It is pertinent to mention here that enquiry has been conducted by the ld. AO from the Tehsildar, Banipark, Jaipur to verify that that the land vide khasra no. 384/716, Mundiyaramsar....
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....sessee" is qualified by the expression "purchased any other land for being used for agriculture purposes", which necessarily means that the new asset which is purchased must be in the name of assessee himself for seeking deduction under said section. The purchase of agriculture land by the assessee in her wife's name, cannot be held eligible for exemption under section 54B of the Act. Hence, deduction claimed by the assessee for property purchased was not considered. 3.2 The ld. AO noted that the assessee has not furnished any evidence viz a viz khasra girdawari etc whether the land was used for agriculture purposes or not. Thus, it is not proved that agriculture operations had been carried out on the land purchased on 28.05.2012 for Rs. 9,45,200/- was also disallowed. Further, it is also seen from the record that the assessee has not furnished any evidence whether the land sold and purchased was used for the agriculture operation which is the basic condition for claim of deduction u/s 54B of the Act. Based on that discussion ld. AO denied the deduction u/s 54B of the Act for Rs. 90,67,650/- to the assessee. 4. Aggrieved by the above order of the Assessing Officer the assesse....
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....ds of appeal as well as his submissions dated 2/11/23, has put forth the following contentions. 1. that the land sold, hence forth referred to as the original asset was an agricultural land, not falling under the definition of capital asset, and hence any gain on its sale was exempt from taxation 2. Since the money for investment in land at sr. no. 2 was provided by him, he should be eligible for deduction even if the land was purchased in the name of his wife 3. The land sold and purchased were used for agricultural purposes. Each of his submissions are dealt with in the following paras. 7.5 In support of his contention that the Original asset was not a capital asset within the meaning of Section 2(14), being beyond 8 km from the municipal limit, the appellant, in its response filed on 04.11.2023, submitted as under:- "1.2 it is submitted that S2(14)(ii)(b) would indicate that if an agriculture land is situated beyond 8 Km from the local limit of any municipal or cantonment area. whose population is more than 10 lakhs, then that would not fall within the ambit of the definition "capital assets". This demarcation of the geograph....
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....ts of Jaipur Municipality on Ajmer Road. The relevant part of the decision is reproduced hereunder for ready reference": "...........It is submitted that as on the date of this notification dated 6th Jan., 1994, the municipal limit of Jaipur on Ajmer Road on which the assessee land is situated is upto the ESI Hospital. The assessee's land is 16 km. away from the ESI Hospital This fact is not in dispute. Hence, the land sold by the assessee not a capital asset u/s 2(14) and therefore on sale of such asset, no capital gain would rise.........." Emphsis Supplied] 7.8 However, in the present case, no irrefutable supporting document is produced by the appellant, Shri Mukesh Kumar Jajoriya, to establish that the original asset was situated beyond 8 km of the then municipal limits of Jaipur as on the date of the Notification under reference. 7.9 The appellant has submitted a screen shot of google map showing the distance between Bindayaka and ESIC Model Hospital as supporting document and has also relied on the decision of the Hon'ble ITAT, Jaipur in the case of Smt. Rebu Agarwal vs ACIT (2017) 88 taxmann.com 872 (Jpr Trib.) to contend that the Google ma....
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....AO. 8.2 The AO has however mentioned that the assessee has not furnished any evidence to substantiate that the land sold and purchased was used for the agricultural operations, which is the basic condition for claim of deduction u/s 54 B of the Act. 8.3 In his submissions filed on 04.11.2023, the appellant stated as under: "The land sold should be used for agricultural purpose for at least two years: In the present case the land sold and purchased by the assessee is Barani Land which is meant for the agricultural area that depends on rainfall for cultivation. Thus, the land sold and purchased is used for agricultural purpose for at least two years. It is clearly mentioned in the registered sale deed that the land sold and purchased are Barani and is an agricultural land and even the revenue records shows as agriculture land The Khasra Girdawari (copy enclosed) of the said land clearly shows that the crops grown in Kharif season such as paddy and fodder grass and some fruit plantation since long which clearly indicated that the land in question was an agricultural land and as recorded in the revenue and the assessee has been paying the land revenu....
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..... DR supported the order of the lower authorities and submitted that the assessee did not cooperate before the Assessing Officer and has not filed required details. Even the assessee though filed an appeal before the ld. CIT(A) has not given details so as to support the contention so raised. The ld. DR at the same time did not raise any specific objection to the prayer of the ld. AR of the assessee to remand the matter back to the file of the Assessing Officer. 8. We have heard both the parties and perused the materials available on record. The bench noted from the order of the ld. CIT(A) page 7 para 7.10 wherein the ld. CIT(A) held that "7.10 It may not be out of place to mention that the present appeal was filed on 24/01/2020 and the submissions were made by the appellant only on 02/11/2023, that is to say after a little less than 4 years period and yet the appellant did not make any efforts to get any certified report or statement from the municipal authorities to the effect that the original asset was situated outside the 8 km radius of Jaipur Municipality on the date of the CBDT Notification under reference." As is evident that the assessee has furnished the details but ....