SAMPAT LAL JHABAK, RAIPUR,RAIPUR vs. PRINCIPAL COMMISSIONER OF INCOME TAX-1, RAIPUR, RAIPUR

आदेश / ORDER PER BENCH: The captioned appeals filed by the assessee’s are directed against the respective orders passed by the Pr. Commissioner of Income- Tax-1, Raipur, (for short, “Pr. CIT”) for A.Y.2013-14, which in turn arises from the respective orders passed by the A.O’s under Sec.147 r.w.s. 144B of the Income-tax Act, 1961 (in short ‘the Act’), as under:

3 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

2. 233/RPR/2024 Sanjog Jhabak 31.03.2024 147 r.w.s. 144B of the Act dated 04.03.2022. 3. 234/RPR/2024 Sanjog Jhabak, L/h. 31.03.2024 147 r.w.s. 144B Late Shri Gautam of the Act dated Chand Jhabak, 30.03.2022. 4. 235/RPR/2024 Sushila Devi Jhabak 31.03.2024 147 r.w.s. 144B of the Act dated 29.03.2022. 5. 236/RPR/2024 Tellottama Jhabak 31.03.2024 147 r.w.s. 144B of the Act dated 29.03.2022. 6. 237/RPR/2024 Smt. Pushpa Jhabak 31.03.2024 147 r.w.s. 144B of the Act dated 30.03.2022. 7. 478/RPR/2024 Sampatlal Jhabak 23.10.2024 147 r.w.s. 144 r.w.s 144B of the Act dated 30.05.2023.

4 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

“GROUND No.I.

1. That the Re-assessment Order framed u/s.147 r.w.s. 144B of the Income Tax Act, 1961 ("the Act') on 30.05.2023 by the Learned Assessing Officer, National Faceless Assessment Centre, Delhi ("the Ld.AO'), the reopening notice issued u/s.148 on 26.07.2022 & the Order passed u/s.148A(d) on 26.07.2022 is bad in law, highly illegal, without jurisdiction, barred by limitation & void ab initio since, the reopening notice u/s.148 and the subsequent proceedings are not in conformity with the pre-requisite conditions stipulated under the provisions of section 148/148A/147 of the Act when examined on the touchstone of the law propounded by the Hon'ble Supreme Court, consequentially, the impugned Revision Order passed by the Learned Pr. Commissioner of Income Tax-1, Raipur ("the Ld.PCIT') u/s.263 setting aside the Assessment Order passed u/s.147 r.w.s. 144B on 30.05.2023 is illegal, bad in law, legally unsustainable and without jurisdiction hence, it is earnestly prayed that the Revision Order passed u/s.263 on 18.10.2024 may please be quashed and cancelled in limine. GROUND No. II 2. That the Revision Order passed by the Ld.PCIT u/s.263 of the Act cancelling/modifying the reassessment order is highly unjustified, bad in law, against the principles of natural justice, clearly exceeding the revisional jurisdiction and not in 5 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

accordance with the provisions of law. It is prayed that the Revision Order passed u/s.263 of the Act may please be cancelled/set-aside on this ground alone. GROUND No. III 3. That the Revision Order passed by the Ld.PCIT u/s.263 of the Act is highly unjustified, bad in law, without jurisdiction & void ab initio since, the Ld. PCIT has grossly erred in concluding that the Ld.AO has failed to carry out the necessary enquiries and investigation in relation to the issue relating to verification of claim of deduction put forth u/s.54B and further, fallaciously concluding that the conditions stipulated u/s.54B were not satisfied thereby resulting into substitution over the plausible & justified view taken by the Ld.AO clearly based upon the material on record. Hence, it is prayed that the Order passed by the Ld.PCIT under the provisions of section 263 of the Act may please be cancelled & quashed in limine. GROUND No.IV 4. On the facts and in the circumstances of the case as well as in law, the Ld.PCIT has grievously erred in cancelling/modifying the re-assessment order passed by the Ld.AO under section 147 r.w.s. 144B of the Act on 30.05.2023 with direction to revise the reassessment order by disallowing the claim of deduction put forth u/s.54B of the Act and to consequently initiate penalty proceedings u/s.271(1)(c) of the Act on the specified issue by erroneously concluding that the essential conditions specified under the provisions of section 54B are not satisfied thereby holding that the said order is erroneous in so far as it is prejudicial to the interest of the revenue. The Ld.PCIT has failed to appreciate that the said reassessment order has been passed by the Ld.AO after conducting necessary & diligent enquiries and conscious application of mind & deliberation to the material on record including the spot verification conducted by the ITO, VU, NaFAC and the unflinching, irrefutable and contemporaneous evidences thereby giving precedence to the Orders & Certificates of the Revenue Authorities under the Land Revenue Code unmistakably establishing the factum of agricultural operations for the specified period u/s.54B and hence, it is prayed that the order passed under section 263 of the Act being highly illegal, bad in law, legally unsustainable,

6 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 arbitrary, highly unjustified and not in accordance with the provisions of law, may please be cancelled. GROUND No. V 5. That the Appellant craves leave to add, amend, alter or delete all or any of the grounds of Appeal at the time of hearing of the appeal.”

8 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 land” and also, there was no change in the usage of the same during the corresponding period. Accordingly, the Pr. CIT based on the aforesaid facts held a firm conviction that as the subject land transferred by the assessee was not used for agricultural purpose during the period of two years immediately preceding the date of its transfer, thus, the same violated the provisions of Section 54B of the Act.

10 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 to Farming and Cultivation being carried on in case of place marked as 2 i.e. Indira Gandhi Krishi Vishvidhyala is of Rabi Crop which takes place in late November-December and March respectively. Where as the post cultivation image during May 2012 of the image marked as 1 is of Kharif Crop harvesting which would have been done around November, 2011. This is not at all possible as after Kharif crop harvest, if in the next Kharif season no farming is carried on in the farm land, the land will get filled with water during monsoon and when there is no farming, rice straw of the previous cultivation period will get decomposed and weeds will grow over the land on their own which will again die during summer leaving the land Red showing no agriculture activities have been carried on it. This is very clearly evident from the image of the location marked as 1 for the date April 2013 available again in Google historical imagery."

11 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 from that, it was submitted by the assessee that as the opinion arrived at by CCOST was completely based on a visual interpretation of certain satellite images on some stray dates, therefore, the same could not be treated as sacrosanct and absolute. Accordingly, the assessee based on his aforesaid submission claimed that as the A.O had arrived at a plausible view that agricultural operations were being carried out on the subject lands in the immediately preceding two years prior to the date of its transfer, therefore, the said fact in itself divested the Pr. CIT from exercising his revisional jurisdiction u/s. 263 of the Act.

13 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 of income filed for A.Y.2012-13 and A.Y. 2013-14 which were filed subsequent to 21.08.2012, as under:

A.Y. Date of filing Agricultural Total income income 2011-12 25.03.2012 0/- 221200/- 2012-13 31.08.2012 55340/- 290730/- 2013-14 31.10.2013 71112/- 33155520/-

15 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 after taking cognizance of the fact that while for the A.O in case of one of the co-owners, viz. Shri Sandeep Jhabak (PAN : ADNPJ2221L) had vide his exhaustive order running into 55 pages, after detailed analysis of the factual matrix, concluded, that the assessee’s claim for deduction u/s. 54B of the Act was not in order, but the other A.Os of the remaining co-owners (family members) on identical facts had allowed the claim of the respective assessees (i.e. the other family members) for deduction u/s. 54B of the Act. The Pr. CIT after deliberating at length on the facts involved in the case before him concluded that as no agricultural operations were carried out on the subject land in the two years immediately preceding the date on which it was transferred, therefore, based on the documentary evidence, viz. (i) panchshala khasra report annexed with the registered sale deed, dated 21.08.2012; (ii) village patwari report, dated 03.09.2019; (iii) income tax returns of the assessee disclosing “Nil” agricultural income filed prior to the date of the sale of the subject land on 21.08.2012; (iv) analysis of google map by the A.O on various dates from 28.11.2005 to 01.10.2018 in the case of one of the co-owners, viz. Shri Sandeep Jhabak (supra), while disallowing his claim for deduction u/s. 54B of the Act; and (v) the scientific and irrefutable evidence of the premier research organization of the nation i.e. ISRO a/w. the report of the CCOST dated 06.02.2020, held a conviction that the FAO without properly appreciating the entire factual gamut of the case and without application of mind had wrongly allowed the assessee’s claim

16 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 for deduction u/s. 54B of the Act which, thus, had rendered his order as erroneous in so far it was prejudicial to the interest of the revenue. Accordingly, the Pr. CIT finding favour with the view that was taken by the A.O in the case of Shri Sandeep Jhabak (supra), wherein the latters claim for deduction u/s. 54B of the Act was declined, thus, held a conviction that as the same treatment was required to be applied to the cases of the other co-owners (family members) which, however, was not done by the FAO while framing the reassessment in the case of the assesee, thus, the same justified the invocation of his revisional jurisdiction u/s. 263 of the Act.

17 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 from the fact that no cogent evidence regarding carrying out of the agricultural operations, viz. (i) proof of revenue records like chitta, khasra khatuni, panchshala; (ii) proof of sale of agricultural produce made to marketing societies or third parties etc. (iii) proof of purchase of agricultural seeds, fertilizers; and (iv) evidence of payments to the agricultural labourers etc. were filed either in the course of the assessment or the reassessment proceedings. Apart from that, the Pr. CIT had supported his aforesaid conviction, based on the fact that the assessee had failed to establish that any agricultural operations, viz. tilling, sowing, fertilizing and cutting the crops was carried on the subject land during the relevant period i.e. 21.08.2010 to 21.08.2012. Accordingly, the Pr. CIT based on the aforesaid facts held a firm conviction that the assessee had failed to discharge the burden of proof that was cast upon him to prove his eligibility for claim of deduction u/s. 54B of the Act.

17. Rebutting the support that was drawn by the assessee from the application that was filed by him a/w. the other co-owners (family members) u/ss. 115 & 116 of the Chhattisgarh Land Revenue Code, 1959, wherein it was claimed that though they had been cultivating the aforesaid land at Village: Labhandi since long, but due to an error, the same was wrongly recorded in the revenue records as non-agricultural due to the reason of non-updation of the concerned record, the Pr. CIT observed that the 18 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 assessee had filed before him a copy of the order of Naib Tahsilder, Raipur, dated 12.03.2020 under the Chhattisgarh Land Revenue Code, 1959. The Pr. CIT on a perusal of the order of Naib Tehsilder, observed that the assessee had filed an application based on the google map, dated 05.12.2010, as per which, the subject land appeared as land after harvesting of crop. The Pr. CIT observed that the order of the Naib Tehsilder, dated 12.03.2020 and the report of the Village patwari was merely based on the google map, dated 05.12.2010. It was further observed by him that the details of the satellite images of the subject land that were obtained from the National Remote Sensing Center, Balangar, Hyderabad were more scientific and reliable then the google map. Also, the Pr. CIT strongly relied upon the observations on the aforesaid images as was obtained from CCOST, Raipur, which revealed that the subject land was a “fallow land” and was not used for growing crops. Accordingly, the Pr. CIT was of the view that the claim of the assessee which in turn was based on the aforementioned document, i.e. order of Naib Tahsilder, Raipur, dated 12.03.2020 was merely based on the google map and, thus, did not substantiate the fact that any agricultural activities were carried on the subject land specifically when a more scientific report stating to the contrary was available on record.

18. Apropos the assessee’s claim that as per Section(s) 115, 116 & 117 of the Chhattisgarh Land Revenue Code, 1959, the order of Naib Tehsildar,

19 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 dated 12.03.2020, wherein he had acknowledged the erroneous entries in the khasra or any other land records, was final and unquestionable in the eyes of law, the Pr. CIT did not find favour with the same. It was observed by him that Section 115 of the Land Revenue Code provided for the correction of a wrong entry in khasra and any other land records by the superior officers. It was further observed by him that Sec. 115 (supra) provided that in case if any Tahsildar found that a wrong or an incorrect entry had been made in the land records prepared u/s. 114 of the Land Revenue Code by an officer subordinate to him, then, he shall direct necessary changes to be made in “red ink” after making such inquiry from the person concerned as he may deem fit after giving a written notice. The Pr. CIT further referring to Section 116 of the Land Revenue Code, 1959, observed that the same provided for the manner in which the disputes regarding entry in khasra or in any other land records were to be dealt with. It was observed by him that as per Section 116 of the Land Revenue Code, 1959, if any person is aggrieved by an entry made in the land records prepared u/s. 114 of the Land Revenue Code in respect of matters other than those referred to in Section 108, he shall apply to the Tahsildar for its correction within one year of the date of such entry. Thereafter, the Tahsildar shall after making such enquiry as he may deem fit, pass necessary orders in the matter. Also, the Pr. CIT referring to Section 117 of the Land Revenue Code, 1959 which provided for the presumption that was to be drawn

20 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 regarding the entries in the land revenue records, observed that all the entries made under this chapter in the land records shall be presumed to be correct until the contrary is proved. Accordingly, the Pr. CIT based on his aforesaid observations, concluded that if the Tahsildar finds that a wrong or an incorrect entry had been made in the land records prepared u/s. 114, he shall direct the necessary changes to be made in “red ink”. The Pr. CIT referring to the facts of the present case, observed that neither any order was passed for making necessary entry in “red ink” nor any changes had been made in the land record. The Pr. CIT further taking note of the observation of the Naib Tahsildar, Raipur in his order dated 12.03.2020 that there was no provision for making entries for F.Y.2010-11, observed that the Land Revenue Code did not bar for making such entries. Apart from that, it was observed by him that now when the entries in the manual panchshala khasra already stated that no agricultural operations were carried out on the subject land in the year 2010-11, therefore, as per the provisions of Section 117 of the Land Revenue Code, 1959 it was to be presumed that the entry regarding no agricultural activity was correct.

21 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 therefore, the support drawn by the assessee from his opinion was misplaced. Apart from that, it was observed by him that the report on the aforesaid issue that was received from CCOST, Raipur that was shared with the assessee revealed beyond doubt that no agricultural activities were carried out on the subject land during the relevant period. Also, the Pr. CIT had pressed into service the Inspector report, dated 07.02.2019, wherein it was reported by him that the subject land was not being used for the purpose of agriculture for more than 5 to 10 years. The Pr. CIT in order to strengthen his conviction of absence of any agricultural activity on the subject land in the two years immediately preceding the date on which it was transferred i.e. 21.08.2012, had obtained Google Earth Imagery for the said relevant period i.e. 21.08.2010 to 21.08.2012, pertaining to the kharif and Rabi season, which as per him established the absence of agricultural activities on the subject land i.e. on 17.05.2012 (i.e. 3 months before the date on which the land was sold). The Pr. CIT after objectively analyzing the aspect, i.e. as to whether or not agricultural operations were carried out on the subject land in the two years immediately preceding the date on which the same was transferred had drawn support from the evidences, viz. (i) Inspector report dated 07.02.2019; (ii) non-disclosure of agriculture income in the returns of income filed prior to the date of transfer of the subject land; (iii) report of the village patwari dated 03.09.2019; (iv). manual panchshala khasra attached with the registered sale deed which clearly mentioned the 22 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 ITA Nos. 233 to 237/RPR/2024 character of the land as a “Padhat land” for more than five years prior to the date of transfer of the said property; and (v) the scientific and irrefutable evidence in the form of satellite images taken by ISRO, i.e. a premier government agency alongwith the CCOST report(s) analyzing the said imageries, which all evidenced that no agricultural operations were carried out on the subject land in the two years prior to the date of its transfer. Accordingly, the Pr. CIT based on his aforesaid deliberations declined the assessee’s claim for deduction of RS. 5,61,14,943/- u/s. 54B of the Act.

24 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 was based on the multi-facet issues therein involved, viz. (i) as the order passed by the A.O u/s. 147 r.w.s. 144B of the Act, dated 30.03.2023 was in itself invalid and void-ab-initio, therefore, the same could not have been revised u/s. 263 of the Act for the reason, i.e. (a) that the reassessment order was passed based on the notice issued u/s. 148 of the Act, dated 26.07.2022 which was barred by limitation; (b) that as per the post-amended Section 149(1)(b) of the Act, the issuance of notice beyond the period of three years was subject to a jurisdictional requirement that the income of the assessee chargeable to tax, represented in the form of an asset; an expenditure; or an entry or entries in the books of account amounting to Rs.50 lacs or more had escaped assessment, but as the present case was reopened for verifying the correctness of the assessee’s claim for deduction u/s. 54B of the Act, therefore, neither of the aforesaid pre-conditions for valid assumption of jurisdiction with the A.O to initiate reassessment proceedings was satisfied; and (ii) that the A.O had failed to obtain a sanction/approval for issuance of notice u/s. 148 of the Act from the specified authority as contemplated u/s.151(ii) of the Act. Accordingly, the Ld. AR had submitted that now when the reassessment order passed by the A.O u/s. 147 r.w.s. 144B of the Act, dated 30.05.2023 was in itself invalid and non-est, therefore, the same could not have been revised by the Pr. CIT in exercise of his revisional jurisdiction u/s. 263 of the Act.

25 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

26 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

27 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

“263. (1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation 1.—For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,— (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include— (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Principal Chief Commissioner or Chief Commissioner or Principal Director General or Director General or Principal Commissioner or Commissioner authorised by the Board in this behalf under section 120; (b) "record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Principal Commissioner or Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Principal Commissioner or Commissioner under this sub- section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Explanation 2.—For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,— (a) the order is passed without making inquiries or verification which should have been made;

28 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

(b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.—In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.”

As is discernible on a perusal of Section 263 of the Act, the Pr. CIT may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the A.O. is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including, viz. an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. As stated by the Ld. AR, and rightly so, it is only where

29 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 the revisional authority considers that the order passed by the A.O is erroneous in so far it is prejudicial to the interest of the revenue that he may assume jurisdiction to revise the said order u/s. 263 of the Act. Accordingly, two conditions needs to be cumulatively satisfied for invoking the revisional jurisdiction by the Commissioner, viz. (i) an order passed by the Assessing Officer is considered to be erroneous; and (ii) it is prejudicial to the interests of the revenue. As observed by the Hon’ble Supreme Court in the case of CIT Vs. Kwality Steel Suppliers Complex (2017) 395 ITR 1 (SC) the order of the A.O cannot be termed as prejudicial simply because he had adopted one of the courses permissible in law and it had resulted in loss of revenue; or where two views are possible and the A.O had taken one view with which the Commissioner does not agree. Accordingly, where two views are possible and the A.O had taken one view and the Commissioner does not agree with the view taken by the A.O, the assessment order cannot be treated as an order erroneous or prejudicial to the interest of the revenue within the meaning of Sec. 263 of the Act. The Hon’ble Apex Court in its aforesaid order, had held, that the Commissioner of Income Tax while exercising the revisional jurisdiction is not sitting in appeal. For the sake of clarity, the observations of the Hon’ble Apex Court are culled out as under:

“……..As is clear from the language of the provision, there has to be a proper application of mind by the Commissioner to come to a firm conclusion that the order of the Assessing Officer is erroneous and prejudicial to the interests of the Revenue. Thus,

30 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 two conditions need to be satisfied for invoking such a power by the Commissioner, which are: (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests, of the Revenue. At the same time, this court has also laid down that this provision can-not be invoked to correct each and every type of mistake or error com-mitted by the Assessing. Officer. While interpreting the expression "pre-judicial to the interests of the Revenue", it is also held that the order of the Assessing Officer cannot be termed as prejudicial simply because the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Assessing Officer has taken one view with which the Commissioner did not agree. It is clear from the above that where two views are possible and the Assessing Officer has taken one view and the Commissioner of Income-tax again revised the said order on the ground that he does not agree with the view taken by the Assessing Officer, in such circumstances the assessment order cannot be treated as an order erroneous or prejudicial to the interests of the Revenue…...” (emphasis supplied by us)

32 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 in the course of survey proceedings was recorded in his books of account for the subject year, thus, Section 69 of the Act would not be attracted found favour with the A.O, therefore, he accepted the same. Thereafter, the Pr. CIT after culmination of the assessment proceedings, held that as the A.O had failed to treat the excess stock found during the course of survey proceedings as the assessee’s unexplained investment and subjected the same to tax as per the special rates u/s. 115BBE of the Act, therefore, the same had rendered the assessment order passed by him as erroneous in so far it was prejudicial to the interest of the revenue u/s. 263 of the Act. Accordingly, the Pr. CIT drawing support from “Explanation-2” to Section 263 of the Act set-aside the assessment order and remanded the matter to the file of A.O for fresh adjudication by passing a fresh assessment order after giving adequate opportunity of being heard to the assessee.

33 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 the plausible view that was taken by the A.O on the subject issue after conducting necessary inquiry. For the sake of clarity, the observations of the Hon’ble Jurisdictional High Court are culled out as under:

“16. In this regard, decision of the Supreme Court in the matter of Commissioner of Income Tax, (Central) Ludhiana v. Max India Limited may be noticed herein profitably in which their Lordships have held that every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interest of the Revenue. When the Income Tax Officer adopted one of the courses permissible in law and it has resulted in loos of revenue; or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law.

34 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

Also, we find that the Hon’ble High Court of Bombay in the case of 32. CIT Vs. Gabriel India Ltd. (1993) 203 ITR 108 (Bom), had held, that the Commissioner of Income Tax cannot revise the order merely because he disagree with the conclusion arrived at by the A.O. The Hon’ble High Court, observed that Section 263 does not visualize a case of substitution of the judgment of the Commissioner for that of the Income-tax Officer, who passed the order unless the decision is held to be erroneous. Referring to the facts involved in the case before them, it was observed that where the Income-tax Officer has exercised the quasi-judicial power vested with him in accordance with law and arrived at conclusion, therefore, the view so taken by him cannot be termed to be erroneous simply because the Commissioner does not feel satisfied with the same.

Also, we find that a similar view had been taken by the Hon’ble High 33. Court of Chhattisgarh in the case of ACIT, Central Circle-1, Raipur Vs. Sun and Sun Inframetric Pvt. Ltd., TAXC No.5 & 7 of 2022, dated 03.08.2024. The Hon’ble High Court, had observed, that the power of revision under sub-section (1) of Section 263 of the Act is in the nature of a supervisory jurisdiction and the same can be exercised only if the two circumstances specified therein exists, viz. (i) the order passed by the A.O was erroneous; and (ii) by virtue of it, prejudice has been caused to the interest of the Revenue. The Hon’ble High Court while concluding as 35 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 hereinabove had relied on the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Greenworld Corporation (2009) 314 ITR 81 (SC). It was observed by the Hon’ble High Court that if the A.O adopts one of the two courses available under the law and it results in loss of revenue, then the order cannot be said to be erroneous or prejudicial to the interest of revenue within the meaning of section 263 of the Act.

36 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 jurisdiction for the purpose of substituting his view as against that arrived at by the A.O.

(A). Satellite data taken by ISRO: 38. As per the material/information made available by the A.O u/s. 148A(b) of the Act, dated 26.05.2022 the satellite data/images that were taken by Indian Space Research Organization (ISRO) on 23.03.2012, 02.10.2011, 19.11.2011, 29.05.2012 and 23.01.2010, revealed that the usage pattern of the subject land situated at Village : Labhandi, Raipur that was sold by the assessee vide registered sale deed dated 21.08.2012 was that of a “fallow land” and there was no change in the land usage during the corresponding period. Accordingly, the A.O, inter alia, based on the 38 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 aforesaid facts had called upon the assessee to put forth an explanation that as to why its claim for deduction u/s. 54B of the Act may not be declined.

“1. Please furnish the evidence in support of the claim u/s 54B that the land sold was utilized for agricultural purpose in the preceding two years. 2. Supporting documents for exemption claimed u/s.54F 3. Proof for investment in REC bond 4. Proof for deposit of Capital gain account 5. Details of the residential house owned by you at the time of transfer of the asset.” (emphasis supplied by us)

In reply, we find that the assessee vide his submission filed/uploaded with the A.O on 08.04.2023, had rebutted the aforesaid adverse inferences that were sought to be drawn based on the report on the satellite data images

39 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 that was prepared by the Chhattisgarh Space Applications Centre, Chhattisgarh Council of Science & Technology (CCOST) with reference to five specific dates, viz. 23.03.2012, 02.10.2011, 19.11.2011, 29.05.2012 and 23.01.2010. It was stated by the assessee that as the images extracted pertained to the months of January, October, November, February and May, while for the cultivation of the paddy crop on the said land as was recorded in the revenue records was, viz. (i) the sowing time of winter (kharif) rice was June and July; and (ii) harvesting period (cutting time) was August and September, which though was dependent on multiple factors, viz. quality of rice, land holding area, the amount of rainfall in the season etc., therefore, the aforesaid report on the satellite data images prepared by CCOST did neither correspond to the sowing season nor the harvesting period. Accordingly, it was the assessee’s claim that since no images for the months of June to September, 2010 (kharif crop) or June to September, 2011 (kharif crop), i.e. the crucial months for determining the sowing and harvesting of paddy crop (of the kharif season) which was relevant to the assessee’s case were made available or referred to, therefore, the satellite images pertaining to the irrelevant period could not be relied upon for concluding that no agricultural activity (kharif crop) was carried out on the subject land during the aforesaid period. Rather, it was the assessee’s claim that the satellite images referred and relied upon by the A.O appeared to be of the post- harvest period when the paddy crop had already been harvested/cut from 40 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 ITA Nos. 233 to 237/RPR/2024 the roots and the soil of land was cleaned, tilled and appeared as “fallow land” during the said period. The assessee based on his aforesaid contention had objected to the reliance that was placed upon the satellite images. Further, the assessee had specifically raised an objection that as to why the satellite images pertaining to the period when the paddy crop was sown and harvested were not being referred to. In short, the assessee had claimed that as the satellite images pressed into service by the A.O were not relevant for concluding that as to whether or not paddy crop was sown or harvested on the subject land, therefore, the same could not be acted upon. For the sake of clarity, the aforesaid objection so raised by the assessee in the course of the re-assessment proceedings before the A.O is culled out as under:

“(ii) Most vitally, as could be seen the dates wherein the images were extracted pertains to the months of January, October, November, February & May and it is an indubitable fact on record as uncontrovertedly & unflinchingly evident from the Agricultural Records viz. the Patwari Records of the Revenue Department of Chhattisgarh that the crop cultivated on the said lands were recorded as "Paddy" in respect of Year 2010-11 & 2011-12 by them which is a 'Kharif' Season Crop and no other crop was taken (such as 'Rabi' Crop) during the assessment years determinative of the nature of crops sown, It is further submitted that the main rice growing season in the state of Chhattisgarh is the 'Kharif' season. It is known as winter rice as per the harvesting time. The state is comprised with three agro- ecological zones i.e. Chhattisgarh plains (applicable in the instant case), Bastar plateau and northern hill region of surguja, These zones have huge variations in terms of soil topography, rainfall intensity and distribution, irrigation and adoption of agricultural production system and thus varies in the productivity of rice in these regions. The sowing time of winter (kharif) rice is June-July and it is harvested (cut) in August- September depending upon the quality of rice, the land holding area, the amount of rainfall in the season etc. Hence, the 41 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

Satellite Images prepared by the CCSR does not correspond to the sowing seal nor the harvesting season, since, no images for the months of June to September, 2010 or June to September, 2011 is not been considered nor is there any reference to the said months which are the crucial months for determining the 'Paddy' crop sown & harvested in the Kharif Season which is relevant in the assessee's case. Hence, the satellite images of the dates relied upon to allege that no agricultural activities were carried out purportedly appears to be of the post-harvest period when the 'Paddy' Crop has already been harvested/cut from the roots and the soil of land is cleaned, tilled and would certainly appear to be fallow during the said period. Hence, the reliance placed upon the satellite, images on the said dates is highly unjustified, incomprehensible, unreliable, scanty, vague and also preposterous since, we are unable to comprehend the reason as to why only the dates on which there is no crop as per the 'Kharif' season were only referred to the CCST and why there are no images for the period when the 'Paddy' crop is sown & harvested which is a very well known fact as per the agricultural norms and there is no gainsaying that in the scenario, the results drawn for inference would certainly be absurd and unreliable.”

42 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

“………Further, as per the satellite data taken by ISRO on 23.01.2010, 02.10.2011, 19.11.2011, 23.03.2012 and 29.05.2012 shows that the said land usage pattern is "fallow land" and there was no change in land use during the corresponding period. This fortifies the fact that the land was not used for agriculture purpose for period of two years immediately preceding the date of transfer which violates the provision of section 54B of the Act.

4. As the aforesaid issue of claiming exemption u/s 54B was not properly examined during the course of assessment proceedings in the light of ISRO report (copy enclosed), the order passed in this case appears to be erroneous in so far as it is prejudicial to the interests of revenue.”

43 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 experts, viz. (i) Dr. Neerav Sharma, Liasion Officer, IIT Roorkee Development Foundation, Uttarakhand; and (ii) Shri Saurabh Rathi, Raipur, i.e. a Horticulturist, wherein the said respective persons had claimed that agricultural operations on the subject land were carried out during 22.08.2010 to 21.08.2012, therefore, the Pr. CIT had vide his letter dated 26.06.2024 addressed to the Director General, CCOST, Raipur, Page 17 & 18 of APB, called for a “fresh expert opinion” to rebut the aforesaid claim of the assessee. As is discernible from the record, the CCOST had, thereafter, vide its letter dated 06.08.2024 filed with the office of the Pr. CIT its “fresh report”, wherein, it had reiterated what it had earlier reported, and stated that the subject land on the respective dates, viz. on 23.03.2012, 02.10.2011, 19.11.2011, 29.05.2012 and 23.01.2010 as per the satellite images obtained from the ISRO was a “fallow land”, Page 10 to 16 of APB. At this stage, it would be relevant to point out that the aforesaid letter of CCOST, dated 06.08.2024 (supra), wherein it had shared its “fresh expert opinion” (supra) with the Pr. CIT only reiterated its earlier view, i.e. the subject land on the aforementioned dates (as was earlier reported) was a “fallow land”. Accordingly, the CCOST vide its fresh report dated 06.08.2024 had not come up with any new facts/reporting but only reiterated its earlier view, i.e. no agricultural activities were carried on the subject land on the specific dates, viz. 23.03.2012, 02.10.2011, 19.11.2011, 29.05.2012 and 23.03.2010. Apart from that, the CCOST in its letter dated 06.08.2024, had 44 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 ITA Nos. 233 to 237/RPR/2024 further emphasized that IRS-P-6 satellite data procured by NRSC, Department of Space, Government of India that was used for land use class identification at Spatial resolution, was better, as in comparison to the report of Indian Institute of Technology, Roorkee Development Foundation that was relied upon by the assessee.

46 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 before the A.O, viz. (i) satellite images available on Open Access Google Earth Platform (Link: https://earth.google.com) near or about the same dates corresponding to the satellite images prepared from CCOST accessing the Date source-NRSC/ISRO IRS-LISS;-IV/Sensor L5FX/SubScene C; and (ii) images extracted/clicked by the satellite deployed by Google Earth, which revealed everyday images that were very easily understandable; and (iii) opinion of Shri Saurav Rathi, Master of Science Degree in the discipline of Horticulture from Indian Agricultural Research Institute (having a rich experience of more than 15 years in agricultural activities), wherein he had stated that the satellite images drawn/extracted from Google Earth Platform for the aforesaid period were the post-harvest images i.e. after the kharif crop. Also, Shri Saurabh Rathi (supra) had tendered an unconditional opinion that the Google Imagery clearly depicted that on the subject land agricultural activities were being carried out.

47 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 from that, we find that, the A.O in the course of reassessment proceedings vide notice u/s.142(1) of the Act, dated 23.03.2023, Page 219 to 221 of APB, had specifically called upon the assessee to place on record documents which would support his claim that the subject land was used for agricultural purposes in the two years immediately preceding the date on which the same was transferred and, thus, his claim of deduction u/s. 54B was in order. Also, the assessee considering the fact that adverse inferences as regards his claim of deduction u/s. 54B of the Act were sought to be drawn by the A.O, inter alia, based on, viz. (i) the satellite images obtained from ISRO for certain specific dates, viz. 23.03.2012, 02.10.2011, 19.11.2011, 29.05.2012 and 23.01.2010; and (ii) the report of the CCOST, Raipur, wherein, it was stated that no agricultural activities were carried out on the subject land in the two years immediately preceding the date on which the same was transferred i.e. on 21.08.2012, had vide his reply dated 08.04.2023, referring to the said material/documents and rebutted the adverse inferences which were sought to be drawn by him.

49 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 in the backdrop of the aforesaid facts, are unable to comprehend, that now when the AO had queried the assessee on the aforesaid issue which had a material bearing on his claim for deduction u/s 54B of the Act, and further, deliberated upon the latter’s reply and the supporting documents, then on what basis the Pr. CIT had observed that the A.O while framing the assessment had failed to examine the said claim for deduction in the backdrop of the aforesaid reports. On the contrary, we are of the view that the Pr. CIT in the garb of his revisional jurisdiction had sought to substitute the view that was arrived at by him by analyzing the satellite imageries provided by ISRO and the CCOST report, as against the plausible view that was arrived at by the A.O after carrying out necessary verifications, inquiries and deliberations. We are afraid that seeking of such substitution of view by the Pr. CIT falls beyond the scope and realm of the revisional jurisdiction vested with him under Section 263 of the Act. Our aforesaid view that the Pr. CIT in the garb of his revisional jurisdiction cannot sit as an appellate authority and seek substitution of his view as against the possible and plausible view arrived at by the A.O after carrying out necessary verifications and inquiries is supported by the judgments of the Hon’ble Supreme Court in the case of CIT Vs. Kwality Steel Suppliers Complex (2017) 395 ITR 1 (SC) and Malabar Industrial Co. Ltd. Vs. CIT (2000) 243 ITR 83 (SC). Also, we find that a similar view had been taken by the Hon’ble High Court of Chhattisgarh in the case of Pr. CIT Vs. Mahavir Ashok Enterprises (P)

50 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 Ltd. (2024) 167 taxmann.com 396 (Chhattisgarh) and the Hon’ble High Court of Bombay in the case of CIT Vs. Gabriel India Ltd. (1993) 203 ITR 108 (Bom).

(B). Land Revenue Records, viz. (i) Manual report of the Village patwari, dated 03.09.2019; (ii) Form P-II Khasra issued by patwari based on computerized land revenue records; and (iii) Order of Naib Tehsildar, District : Raipur, dated 12.03.2020:

51 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 record (manual record) issued by Village patwari, dated 03.09.2019 stated that no agricultural activities were carried out on the subject land during F.Y 2009-10, F.Y 2010-11 and F.Y 2012-13. Accordingly, the A.O based on the aforesaid information had called upon the assessee to explain that as to why his claim for deduction u/s. 54B of the Act be not disallowed and a notice be issued to him u/s. 148 of the Act.

52 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 harvest” situation of the land; (ii) computerized land revenue records; and (iii) order dated 12.03.2020 passed by Naib Tehsildar, District : Raipur on an application filed by the assessee a/w. the other 8 co-owners (family members) under Chhattisgarh Land Revenue Code, 1959, wherein it was stated by him that due to a clerical mistake in the manual records, the land usage was wrongly recorded in the revenue record as “Padati bhumi” for F.Y.2010-11 while for the computerized revenue records stating to the contrary was correct.

53 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 therefore, an error had crept in the non-updated land revenue records wherein the same was wrongly recorded as a non-agricultural land.

54 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 Land Revenue Code, 1959, ordered that in respect of the subject agricultural land, in place of “Padati Bhumi”, the crop cultivated should have been recorded as “paddy” in the revenue records for F.Y.2010-11. At the same time, it was observed by him that as there was no provision to update the revenue records, therefore, the said case was being filed.

“7. Pertinently, most vitally, finding some mistakes/errors in the Revenue Records issued by the Patwari Incharge in respect of agricultural lands sold situated at Kh.No.246/3, 247/3, 246/128, 247/128, 246/129, 247/129, 246/160, 247/160, 248/118, 246/121, 247/121, 246/12C, 247/120, 246/122, 247/122 etc., the assessee along with the other co-owners & family members made an application under the provisions of section 115 & 116 of the Chhattisgarh Land Revenue Code, 1959 stating that they have been cultivating the aforesaid lands at Village Labhandih since long and that an error in recording the same as non-agricultural seems to be committed by the Land Revenue Officials seemingly owing to the reason of non-updation of the concerned records. Thereafter in pursuance of directions of the Addl. Tahsildar as aforesaid, the Patwari In charge, on the basis of Google Map Image drawn on 05.12.2010, prepared a Panchanama Report diligently taking into consideration the Patwari (Panchsala Khasra) Records reflecting the details of crops shown in the manual patwari records and after extensive examination of the documentary evidences supported with Patwari Panchanama and other contemporaneous evidences etc., the Ld. Nayab Tahsildar, District Raipur in Revenue Case No.8-121/Year 2019-20 in the case of Gautam Chand Jhabak & Others. Vs. State of Chhattisgarh vide his Order Dated 12th March, 2020 stoutly & specifically held

56 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

That is to say, on the basis of Statements, Patwari Report/Panchanama, Computerized Land Revenue Records certified by the Patwari at the relevant time & attached with the registered deeds, it is found that the at Kh.No.246/3, 247/3, 246/128, 247/128, 246/129, 247/129, 246/1E 247/160, 248/118, 246/121, 247/121, 246/120, 247/120, 246/122, 247/122 etc. at Village Labhandih was being cultivated since long (Cultivation of Paddy duly registered in the Patwari Records for the Year 2011-12) and the factum of cultivation of paddy has been rightly reflected & registered in Online B-1 Khasra in all the years all along and merely owing to clerical mistake/non- updation when making entries in Record Roster of Patwari, the cultivation of Paddy or agricultural activity has been fallaciously recorded as "Padati" Bhumi and after consideration of the entire conspectus of the case before him, in view of the plenary pow( conferred upon him under sections 115 & 116 of the Chhattisgarh Land Revenue Code, 1959, the Ld. Nayab Tahsildar ordered that in respect of the aforesaid agricultural lands, in place "Padati" Bhumi, the crop cultivated should have been recorded as "Paddy" in respect of Year 2010-11 however, there being no provision to update the records, the said case was disposed off.”

57 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024

“(iv) It is further imperative to point out that the Patwari Incharge on the basis of very same Google Map Image drawn on 05.12.2010 prepared a Panchanama Report diligently taking into consideration the Potwari (Panchsala Khasra) Records reflecting the details of crops shown in the manual patwari records and after extensive examination of the documentary evidences supported with Patwari Panchanama and other contemporaneous evidences etc. as referred to in Para 3.5 supra which inherehtly and unflinchingly indicates that the Images drawn from Google Earth Open Platform is much more authentic and reliable and it is humbly submitted that the Revenue Records as modified by the Ld. Nayab Tahsildar, District Raipur in Revenue Case No.B-121/Year 2019-20 in the case of Gautam Chand Jhabak & Others. Vs. State of Chhattisgarh vide his Order Dated 12th March, 2020 deserves precedent over the bald and unsubstantiated purportedly vague and scanty opinion drawn by the CCST on the basis of Satellite Images does not deserve much credence and ought to be discarded as unreliable and uncorroborated. It is imperative to point out that the very same material & data supplied by the other co-owners in the course of reassessment proceedings before the Ld,Assessing Officers, NFAC have been duly & consciously deliberated upon and vehemently accepted by diligently allowing the claim of exemption/deduction under section 54B of the Act thereby tacitly accepting the claim of deduction put forward by the co-owners hence, it is most earnestly requested that the same treatment is deservedly required to be extended to the assessee individual and the returned income may please be assessed & accepted as such.”

58 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 subsequent developments i.e. the computerized land revenue records and the Naib Tehsildar order, dated 12.02.2020 the “manual report” of the Patwari, dated 03.09.2010 could not be given credence and relied upon, thus, accepted the assessee’s claim that the subject land was used for agricultural purposes i.e. for cultivation of “paddy crop” in F.Y.2010-11.

59 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 reply of the assessee, therefore, that in itself suffices for concluding that he had based on a possible and plausible view accepted the same. Our aforesaid view, that where the A.O while framing the assessment had examined the assessee’s claim and accepted it, then, irrespective of the fact that he had in the body of the assessment order there is no specific mention of acceptance of such claim of the assessee cannot form a basis for concluding that the same was not verified by the A.O is fortified by the judgment of the Hon’ble High Court of Punjab & Haryana in the case of Hari Iron Trading Co. Vs. CIT (2003) 263 ITR 437 (P&H). The Hon’ble High Court in its order has observed as under:

“A bare perusal of the aforesaid provisions shows that the CIT can exercise powers under Sub-section (1) of Section 263 of the Act only after examining "the record of any proceedings under the Act". The expression 'record' has also been defined in Clause (b) of the Explanation so as to include all records relating to any proceedings available at the time of examination by the CIT. Thus, it is not only the assessment order but the entire record which has to be examined before arriving at a conclusion as to whether the Assessing Officer had examined any issue or not. The assessee has no control over the way an assessment order is drafted. The assessee on its part had produced enough material on record to show that the matter had been discussed in detail by the Assessing Officer. The least that the Tribunal could have done was to refer to the assessment record to verify the contentions of the assessee. Instead of doing that, the Tribunal has merely been swayed by the fact that the Assessing Officer has not mentioned anything in the assessment order. During the course of assessment proceedings, the Assessing Officer examines numerous issues. Generally, the issues which are accepted do not find mention in the assessment order and only such points are taken note of on which the assessee's explanations' are rejected and additions/disallowances are made. As already observed, we have examined the records of the case and find that the Assessing Officer had made full inquiries before

60 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 accepting the claim of the assessee qua the amount of Rs.10 lacs on account of discrepancy in stock. Not only this, he has even gone a step further and appended an office note with the assessment order to explain why the addition for allegation discrepancy in stock was not being made. In the absence of any suggestion by the CIT as to how the inquiry was not proper, we are unable to uphold the action taken by him under Section 263 of the Act.” (emphasis supplied by us) 56. Once again, we are of a firm conviction that the A.O in the present case had after considering the reply filed by the assessee, wherein he had in the course of reassessment proceedings rebutted/dispelled the adverse inferences which the A.O had sought to draw as regards his claim of deduction u/s.54B of the Act, i.e., inter alia, for the reason that as per the patwari report, dated 03.09.2019 (supra) no agricultural operations were carried out on the subject land in F.Y.2010-11, had, thus, arrived at a possible and plausible view, therefore, the Pr. CIT in the garb of his revisional jurisdiction could not have sought to substitute his view as against that which was arrived at by the A.O based on necessary inquiries and verifications. Our aforesaid view is fortified by the judgments of the Hon’ble Supreme Court in the case of CIT Vs. Kwality Steel Suppliers Complex (2017) 395 ITR 1 (SC) and Malabar Industrial Co. Ltd. Vs. CIT (2000) 243 ITR 83 (SC) and also that of the Hon’ble High Court of Chhattisgarh in the case of Pr. CIT Vs. Mahavir Ashok Enterprises (P) Ltd. (2024) 167 taxmann.com 396 (Chhattisgarh).

61 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 (C). Physical Verification Report, dated 03.05.2023 obtained by FAO from the AO (Verification Unit):- 57. As observed by us hereinabove, the A.O while framing the reassessment vide his order passed u/s.147 r.w.s. 144B of the Act, dated 30.05.2023 was satisfied with the submissions that were advanced by the assessee to substantiate his claim that the subject agricultural land in the two years immediately preceding the date on which the same was sold was used for agricultural purposes, viz. (i) Google Earth Images drawn on 05.12.2010 showing post-harvest position of the land and apparently addressing the ISRO’s report (supra) and CCOST report (supra); (ii) opinion from the scholar/expert in the field of agriculture, viz. Shri Saurabh Rathi (supra), wherein he had opined that the google imagery clearly depicted that agricultural activities were being carried out on the subject land; (iii) the satellite images as of December, 2010 of the subject land were of post- harvest period, i.e. after the kharif crop and the yellow color of the land evidenced the rice straw left.; (iv) the computerized land revenue records certified by the patwari evidencing the cultivation of paddy on the subject land during F.Y.2010-11; and (v) Naib Tehsildar, District: Raipur, order dated 12.03.2020 (supra), wherein it was observed by him that due to a clerical mistake/non-updation of the manual records the subject land was wrongly recorded as “Padati Bhumi”, while for, the crop cultivated should have been recorded as “paddy” in F.Y.2010-11 and, thus, had sufficient

62 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 material before him which would substantiate the assessee’s claim that the subject land in the two years immediately preceding the date on which it was transferred was utilized for agricultural purposes, i.e. a pre-condition for claiming deduction u/s. 54B of the Act. However, we find that the A.O in order to dispel all doubts and arrive at an irrefutable view on the issue in hand, i.e. as to whether or not the subject land in the two years immediately preceding the date on which it was transferred used for agricultural purposes, therein, sought for a physical verification of the subject land by making a reference to the A.O, Verification Unit, Raipur [“A.O (VU)”, for short].

63 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 facts, the A.O in the latter’s case had vide his order passed u/s. 147 r.w.s. 144B of the Act, dated 04.03.2022 allowed his claim for deduction of Rs.4.85 crore (supra) u/s. 54B of the Act. Once again, the assessee had before the A.O (VU), vide his reply dated 26.04.2023 (supra), to buttress his claim that the subject land in the two years immediately preceding the date on which it sold was used for agricultural purposes, had relied upon the computerized land revenue records i.e. panchnama report prepared by patwari-incharge based on google map drawn on 05.12.2010 (after taking into consideration the patwari panchshala revenue records revealing the details of crop sown as per the manual patwari record); and Naib Tehsildar, Raipur, order dated 12.03.2020. Also, the assessee in order to buttress his aforesaid claim, had pressed into service before the A.O the expert opinion of Shri Saurabh Rathi (supra).

“During Physical Verification Proceedings, on visiting the above land, we have met with Shri Hrithram Nisad, Ex Serviceman, security person from J.B Security Corporation appointed to look after and care the property and stated that previously, my family along with my forefather's have been doing agricultural activities since 2005-06 on the above land and growing paddy for Jhabak Faimly and for irrigation there was a well and also give glimpse of this. All the expenses on agricultural activities was borne by us and the production was used by us for our requirements, if anything remained that was given to assessee i.e Jhabak Family. But, after the transfer of property, the present owner has denied to do agricultural activities, because he has some future plan and but now no any project was developed and it is full of Brushwood. Now he is employed with present owner in the capacity of security guard. Further, on perusal and analysing the submission filed by the assessee in response to the above statutory - notices, the assessee- claimed deduction- under sections 54/5413/54D/54EC/54F /54G/54GA/54GB of Income Tax Act, 1961 as under :- Particulars Amount (In Rs.) U/s. 54F of the Income Tax Rs.34,81,993/- Act, 1961 U/s. 54EC of the Income Tax Rs.50,00,000/- Act, 1961 U/s. 54B of the Income Tax 4,76,32,950/- Act, 1961 Total 5,61,14,943/- Out of Rs.4,76,32,950/- claimed u/s 54B of Income Tax Act, 1961, an agricultural Land of share of Rs.6,32,950/- was purchased by the assessee as on 13.03.2013 and remaining amount of Rs.4,70,00,000/- was deposited into Capital Account scheme and later onward during FY 2014-15, the assessee have offered unutilized amount of Rs.3,40,00,000/- for taxation. Therefore, in light of above discussion, it is found that the land was used for agricultural purposes for period of two

66 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 years immediately preceding the date of transfer i.e 2010-11 & 2011-12. Thus, the physical verification report along with following annexures are submitted for your kind perusal and accorded. Annexure : A (Summon issued to Assessee dated 22.04.2023) Annexure : B (Statement of Assessee dated 02.05.2023) Annexure : C (Photograph) Annexure D (Submission filed by the assessee)”

Accordingly, a perusal of the A.O(VU)’s “Physical Verification Report” (supra), reveals that he had after carrying out necessary physical verification, recording the statements of the assessee and Shri Hrithram Nisad, i.e. the erstwhile care taker, clicking photographs of the site, consulting the records as were filed before him, and deliberating upon the documents that were filed by the assessee with him, had concluded that the subject land was used for agricultural purposes in the two years immediately preceding the date on which the same was transferred.

67 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 inquiries/verifications/recording of statements and carrying out physical inspection of the site vide his “Physical Verification Report”, dated 03.05.2023, had concurred with and accepted the assessee’s claim. Considering the fact that the A.O(VU) in his “Physical Verification Report” (supra) had based on his inquiries/verifications reported that the subject land was in the two years immediately preceding the date on which it was transferred used for agricultural purposes, we find no reason as to why the view taken by the A.O in his order of reassessment passed u/s. 147 r.w.s. 144B of the Act, dated 30.05.2023 by relying on the said report amongst others, wherein he had accepted the assessee’s claim as regards usage of the land during the relevant period for agricultural purposes is not to be construed as a possible and plausible view arrived at by him while framing the reassessment.

68 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 inferences based on the patwari report, dated 03.09.2019 (supra). Accordingly, it can safely be concluded that as per the “revenue records” the subject land in the two years immediately preceding the date on which the same was transferred used for agricultural purposes.

69 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 Conservator of Forests (CCF) that was based on site inspection and the google image; and (ii) Forest Survey of India (FSI) Report based on satellite imagery. On the other hand, as per the revenue records, none of the khasras (plots) falling in the project area was ever shown as a jungle or forest, banjar (uncultivable) or parti land (uncultivated). Also, the records of the land acquisition between the years 1980 to 1983, complemented the revenue record of 1952 in which the lands were shown as agricultural and not as jungle or forest.

70 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 imageries that have been pressed into service by the Pr. CIT, i.e. satellite images obtained from ISRO and CCOST reports (supra) analyzing the said satellite images.

72 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 Jurisdictional High Court in the cases of, viz. (i) Pr. CIT Vs. Mahavir Ashok Enterprises (P) Ltd. (2024) 167 taxmann.com 396 (Chhattisgarh); and (ii) ACIT Vs. Sun and Sun Inframetric Pvt. Ltd., Tax case No.5 of 2022, dated 03.08.2023 (Chhattisgarh).

73 Sanket Jhabak & Others Vs. Pr. CIT-1, Raipur & 479/RPR/2024 to 237/RPR/2024 A.Y.2013-14 As the facts and issue involved in the captioned appeals remain the 69. same as were there before us for A.Y. A.Y.2013-14 in the aforementioned appeal of Shri Sanket Jhabak Vs. Pr. CIT-1, Raipur, [except for the “Physical Verification Report”, dated 03.05.2023 that was obtained by the FAO from the A.O (Verification Unit) in the case of Shri. Sanket Jhabak (supra), therefore, our order therein passed shall mutatis- mutandis apply for the purpose of disposing of the captioned appeals i.e. ITA Nos. 233, 234, 235, 236 & 237/RPR/2024 & A.Y.2013-14.

Order pronounced in open court on 19th day of February, 2025.