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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.34/Rpr/2017 Assessment Year : 2008-2009
ITA No.19/Rpr/2016 Assessment Year: 2010-2011
Shri Ketan Moolchand Shah, Vs. DCIT, 1(1), Bilaspur. Block A-5, Surya Vihar, Junwani, Bhilai. PAN/GIR No.AUHPS 9944 A (Appellant) .. ( Respondent)
Assessee by : Shri R.B.Doshi, AR Revenue by : Shri Sanjay Kumar, DR
Date of Hearing : 16/01/ 2018 Date of Pronouncement : 01/02/ 2018
O R D E R Per Pavan Kumar Gadale, JM
These are appeals filed by the assessee against different orders of the
CIT(A)-1, Raipur in Appeal No.CIT(A)/RPR/A No. 97/15-16/2016-17 dated
24.2.2017 for the assessment year 2008-09 and Appeal No.CIT(A)/RPR/A
No. 129/2013-14 dated 18.12.2015 for the assessment year 2010-2011.
Since the issue in both the appeals are similar, for the sake of
convenience, they were heard together and are disposed off by the
2 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 consolidated order and we take the appeal for the assessment year 2008-09
and facts narrated therein for our adjudication and our decision will apply
mutatis-mutandis to the assessment year 2010-2011.
Followings are the Grounds of appeal raised for the assessment year
2008-09 as under:
“1. In the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition of Rs.1,37,72,502/- made by the AO on account of long term capital gain holding that the land sold by the appellant was a capital asset within the meaning of section 2(14) and the gain on transfer thereof is assessable to capital gains. The finding recorded by the AO and CIT(A) is incorrect and contrary to provisions of law. The addition made by the AO and sustained by the CIT(A) is not justified.
Ld CIT(A) erred in recording erroneous finding and concluding that the amount of Rs.1,37,72,502/- is not exempt and is taxable.”
The brief facts of the case are that the assessee is an individual and
derives income by way of remuneration, interest, dividend, agricultural
income and in the year under consideration received compensation on
compulsory acquisition of agricultural land by the State Government and for
the said assessment year 2008-09, filed return of income on 26.9.2008 with
total income of Rs.46,62,847/- and also agricultural income of Rs.58,000/-
and the returned income was processed u/s.143(1) of the Act on 15.9.2009.
During the course of assessment proceedings for the assessment year 2010-
3 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 2011, the Assessing Officer found that the assessee had sold 10.75 hectares
of land to Naya Raipur Development Area (NRDA) in financial year 2007-08
for Rs.1,47,81,250/- and received additional compensation and disclosed
long term capital gains of Rs.1,37,13,854/- on sale of agricultural land and
claimed as exempt u/s.2(14) of the Act and the Assessing Officer reasons to
believe that income has escaped assessment and issued notice u/s.148 of
the Act and assessee filed letter on 5.8.2013 to treat the return of income
filed earlier in compliance to reassessment proceedings and the Assessing
Officer also issued notice u/s.143(2) and 142(1) of the Act and the parties
were heard. In support of the claim that the land is agricultural land, the
assessee filed copy of certificate dated 24.9.2008 issued by Dy.
Manager(Lan), NRDA, Raipur and also copy of certificate dated 20.2.2012
issued by Patwari, Halka No.16, Mandir Hasod and also filed copy of extract
of Nayee Rajadhani Kshetra Vikas Pradhikaran (New Capital Area
Development Authority, action plan 2006 and prospects of gram Panchayat
and village Chhatauna, in respect of situation of agricultural land and
assessee further submitted that the area is not under the coverage of
Muncipal area and is situated beyond 8 kilometres from the Raipur. The
assessee to support its claim of agricultural land relied on the decision of
Hon’ble Madras High Court in the case of CIT vs. P.J. Thomas, 211 ITR 837
(Mad), wherein, it was held that the exclusion u/s.2(14)(iii) does not apply
4 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 to agricultural lands situated within Panchayats, hence capital gain arising
from transfer of such agricultural land is not liable to tax. The Assessing
Officer was not satisfied with the explanations and dealt on the provisions
and factual aspects and observed that the assessee did not produce either
the purchase deed or the sale deed to demonstrate the nature of land as per
registered sale deeds. The assessee could not substantiate with cogent
evidence that the land is agricultural in nature and agricultural activities are
carried out and further NRDA had purchased it for non-agricultural use but
as capital project of Chhatisgarh State and also disputed the certificate
issued by Panchayat. The Assessing Officer referred to Board’s notification
No.9447 dated 5.1.1994 and interpreted that the distance of 8 kms has to
be counted from all directions of municipal limits of Raipur and the municipal
limits of Raipur extend to more than 10 kms towards Aarang and observed
that the land is situated in Chhatona village within the purview of Raipur
district and the municipal limits need to be considered within municipal
limits of Raipur and placed reliance on the decision of Hon’ble P&H High
Court in the case of CIT vs. Smt. Anjana Sehgal, 133 Taxmann 712 and
further observed that the decision in the case of P.J.Thomas (supra) is
distinguishable on facts. With these above observations, the Assessing
officer is of the opinion that the assessee is not entitled for exemption of
5 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 the capital gains claimed at Rs.1,37,72,502/- and assessed the total income
at Rs.1,84,35,350/- and passed order u/s147 of the Act dated 20.3.2009.
Aggrieved with the assessment order, the assessee filed appeal before
the CIT(A) and the ld A.R. relied on the grounds of appeal and also the
assessee furnished additional evidences. The CIT(A) held that the evidences
were not submitted before the Assessing officer, hence referred to the
Assessing officer for his comments. Whereas the Assessing Officer filed
remand report with the submission and findings that the land transferred
was a capital asset and the gain on transfer is assessable to capital gains tax
and the assessee also filed reply to the comments of the Assessing Officer.
The CIT(A) dealt on the disputed issue elaborately on the comments and
submissions and confirmed the order of the Assessing Officer and dismissed
the appeal of the assessee.
Aggrieved with the order of the CIT(A), the assessee has filed an
appeal before the Tribunal.
Before us, ld A.R. of the assessee submitted that the land in question
sold on compulsory acquisition by the assessee is agricultural land and the
assessee is eligible for exemption u/s. 2(14) of the I.T.Act, 1961 and the
Assessing officer dealt on this issue in respect of sale of agricultural land by
6 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 the assessee to (NRDA) and prior to the sale of agricultural land, the
assessee deriving income from agricultural activity alongwith other incomes
in the earlier assessment years and disclosed in the Return of income.
Whereas the Assessing Officer treated the land as capital asset and denied
exemption to the assessee.
Ld D.R. submitted that the assessee has not carried out any
agricultural operations and no proof was submitted, the Assessing Officer
has correctly relied on the judicial decision of and observed that the
assessee has not explained the nature of income and ld D.R. relied on the
order of the Assessing Officer and vehemently objected to the submission of
ld A.R.
We have heard the rival submissions, perused the material on record ,
orders of lower authorities and the paper book filed before the Tribunal. Ld
A.R. submitted his arguments in the paper book alongwith copy of land pass
book to substantiate the holding of the land by the assessee and drew
attention to page 103 of PB, wherein, the Patwari Certificate was issued
dated 20.2.2013 stating that the land is situated 9 kms away from the
Muncipality and also referred to certificate dated 24.9.2008 of Dy.Manager
(Land), Raipur Development Authority, placed at page 104 of PB, certifying
that the said agricultural land is situated outside the Municipality Area. Ld
7 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 A.R. further drew our attention to the Income tax returns filed by the
assessee and computation of income for the earlier assessment years
referred at page 76 to 101 of PB and also demonstrated the document
referred at page 71 of PB being pass book of land. The contention of ld A.R.
is that the land sold is agricultural land and assessee complied the conditions
for claiming exemption u/s.2(14) of the Act and the amount was received
from the Naya Raipur Development Area and same is exempted and also
referred to page 108 of PB certificate from Sarapanch, Chhaitana. Further,
Ld A.R. relied on the judicial decision in the case of Addl.CIT vs. Tarachand
Jain, 123 ITR 567 (Pat).
On a query from the bench to ld D.D.R. whether any inquiry was
conducted by the Assessing Officer regarding the agricultural income/land,
the explanations are not convincing. Whereas ld A.R. has demonstrated
supporting documents and certificates for the purpose of acquiring the
property and also sale to the Naya Raipur Development Area referred to
paper book Vol. 1 page 105. Ld D.R. submitted that the sale of agricultural
land was in hectre and consideration received from Government is not
dispute.
8 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 11. We support our view based on the decision of the ITAT, Nagpur in the
case of Sanjay Ngorao Paidelwar vs ACIT in ITA No.112/Ng/2012 dated
22.3.2013 on similar facts has, inter alia, held as under:
“16. Regarding the issue in regard to whether the sale consideration out of agricultural income is assessable as business income or not, once we have held that this was an agricultural land and, therefore, any consideration out of sale of agricultural land, which is not assessable as the land was situated beyond 8 kms., therefore, the direction of the learned CIT(A) that the surplus may be treated as business income, has become now meaningless. Even and otherwise, this issue is also decided by various High Courts including the Hon’ble Bombay High Court. Though learned CIT(A) has placed reliance on the decision of the Hon’ble Bombay High Court in case of Gopal Ramnarayan Kasat, reported in 9 Taxman.com 236 (Bom), however, in a latest decision the Hon’ble Bombay High Court in the case of CIT Vs. Smt. Debbie Alemao, reported in (2011) 331 ITR 59, has held that the land which was shown as agricultural land in the revenue records and never sought to be used for non-agricultural purposes by the assessee till it was sold has to be treated as agricultural land, even though no agricultural income was shown by the assessee from this land and, therefore, no capital gain was taxable on the sale of the said land.
Facts in the case in hand are similar. The land in question was shown as agricultural land in the revenue record. Whether there was any agricultural income or not, is not the moot question to decide the issue, however, the important factor is to be decided as to whether the character of the land is agriculture or not. Undisputedly, in the revenue record and as per the Patwari certificate, the land in question is agricultural land. Therefore, the sale consideration was not taxable on the sale of said land i.e. either on account of capital gain or on account of business income. 18. Even we found that this issue.”
We, considering the above facts and documentary evidence, hold that
the land in question is treated as agricultural land and the capital gains
arising out of sale of agricultural land is entitled for exemption u/s.2(14) of
the Act. Accordingly, we set aside the orders of the CIT(A) and direct the
9 ITA No .34 / Rpr/20 17 Asse ssment Year : 20 08- 200 9 ITA No .19 / Rpr/20 16 A sse ss ment Year: 2010 -2011 Assessing Officer to delete the addition of Rs.1,37,72,502/- and allow the
grounds of appeal in favour of the assessee.
In view of our decision in ITA No.34/RPR/17 for the assessment year
2008-09 the appeal for the assessment year 2010-2011 in ITA
No.19/Rpr/2016 on identical fats is also allowed.
In the result, both the appeals of the assessee are allowed.
Order pronounced in pursuance with rule 34(4) of I.T.Rules by putting the copy of the same on notice board on 1/2/2018.
Sd/- sd/-
(N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIALMEMBER Raipur; Dated 01 /02/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The appellant: Ketan M Shah,Bhilai., 2. The Respondent. DCIT, 1(1), Bilaspur 3. The CIT(A)- Bilaspur 4. Pr.CIT- Bilaspur 5. DR, ITAT, Raipur 6. Guard file. //True Copy//
BY ORDER,
SR.PRIVATE SECRETARY ITAT, Raipur