Income Tax Appellate Tribunal - Raipur
Pankaj Kumar Agrawal,, Bilaspur(Cg) vs Ito, Ward- 1(1),, Bilaspur(Cg) on 15 January, 2019
आयकर अपीलीय अधधकरण न्यायपीठ रायपुर में ।
IN THE INCOME TAX APPELLATE TRIBUNAL,
RAIPUR BENCH, RAIPUR
BEFORE SHRI ANIL CHATURVEDI, AM AND
SHRI PARTHA SARATHI CHAUDHURY, JM
आयकर अपील सं. / ITA No.30/RPR/2014
धनधाारण वषा / Assessment Year : 2009-10
Pankaj Kumar Agrawal,
Prop. Puja Enterprises,
Mission Hospital Road,
Bilaspur (CG)
PAN : ABDPA3986H
.......अपीलाथी / Appellant
बनाम / V/s.
The Income Tax Officer,
Ward 1(1), Bilaspur (CG)
......प्रत्यथी / Respondent
Assessee by : Shri R.B. Doshi
Revenue by : Shri D.K. Jain
सुनवाई की तारीख / Date of Hearing : 14.01.2019
घोषणा की तारीख / Date of Pronouncement : 15.01.2019
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM :
This appeal preferred by the assessee emanates from the order of Ld. CIT(Appeals), Bilaspur (CG) dated 27.12.2013 for the assessment year 2009-10 as per following grounds of appeal on record: 2 ITA No. 30/RPR/2014
A.Y.2009-10 "1. That the order passed by the learned CIT(Appeals) is bad in law as well as facts.
2. That the learned CIT(Appeals) has erred in not allowing the claim of the assessee for exemption u/s.54B as well as not allowed the claim of the assessee being beyond 8 km from the municipal limits area.
3. That the addition made by the learned AO should be deleted."
2. The brief facts in this case are that returned income of Rs.1,41,481/- and agricultural income of Rs.83,506/- was assessed by the Assessing Officer at Rs.24,46,809/- and Rs.83,506/- respectively. The Assessing Officer observed that the assessee has claimed exemption on sale of agricultural land situated in the middle of Mangla Basti, Turkadih Road, Bilaspur. Since the land in question is situated within 8 km from the local limit of the municipality, the land comes under the definition of the capital assets u/s.2(14)(iii) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). Therefore, since the land is governed by section 48 of the Act, the Assessing Officer denied the exemption claimed and assessed the sum as income of the assessee for the year under consideration. The long term capital gain of Rs.23,05,328/- claimed as exemption in the return of income was rejected by the Assessing Officer and added the same to the total income of the assessee.
3. The Ld. AR of the assessee submitted that the Assessing Officer rejected the claim of exemption of Rs.23,05,328/- towards income from sale of agricultural land by stating that the impugned agricultural land is 3 ITA No. 30/RPR/2014 A.Y.2009-10 situated within 8 km from local limits of Bilaspur Nagar Nigam, but the Assessing Officer has failed to examine other aspects of the case that the assessee has purchased another agricultural land after executing agreement to sale of the impugned agricultural land and invested more than sales consideration from the impugned agricultural land in purchase of the said agricultural land and accordingly, the assessee is duly entitled to claim exemption u/s.54B of the Act.
4. The Ld. AR further contented that the assessee purchased land admeasuring 1.078 hector at Village- Mangla, Block- Bilha, Dist. Bilaspur in the month of April 2005 and executed agreement to sale the land for a consideration of Rs.50,00,000/- in the 1st week of August 2008 with the conditions that payment of remaining sale consideration and registry of the land in their favour should be done by the end of October, 2010. After execution of agreements to sale of impugned agricultural land, the assessee was in search of another agricultural land for purchase and to claim exemption u/s.54B of the Act as well as to continue agricultural operation as in the past. In that process, he got better option in the month of September, 2008, but the conditions put-forth by the sellers of the agricultural land admeasuring 0.993 hector situated at Dharampura, Raipur were that to make payment and get the agricultural land registered in the month of September, 2008 itself.
4ITA No. 30/RPR/2014
A.Y.2009-10
5. The Ld. CIT(Appeals) after considering the facts of the case, submissions of the assessee and assessment order upheld the addition made by the Assessing Officer as per reasons appearing in the order which is on record.
6. Being further aggrieved, the assessee has preferred appeal before us.
7. At the time of hearing, the Ld. AR of the assessee vehemently argued that there was agreement to sale old land dated 05.07.2008 and the sale deed executed on 16.10.2008 and also new land purchased on 08.09.2008 and 11.09.2008. In the return capital gain on sale of land was shown as exempt income which is filed at page No.11 of the paper book. The deduction claimed u/s.54B of the Act before the Assessing Officer vide letter which is placed at page No.71 of the paper book filed along with purchase deed of new agricultural land. It is the contention of Ld. AR of the assessee that they are qualified with the conditions as prescribed u/s.54B of the Act. The land sold was agricultural land and used for agriculture. The sale deed filed in the paper book at pages 29, 31,33 & 37 which are relevant for description of land as agricultural in nature. There is also Kistbandhi Khataoni issued by Patwari which is annexed at page No.46 of the paper book and relevant points are 4 to 8. The agricultural income has been disclosed in the relevant year at page No.12 of the paper book and in earlier two years which are at page No. 59 and 71 of the paper 5 ITA No. 30/RPR/2014 A.Y.2009-10 book. New agricultural land has purchased which is evident from page No. 47 to 51 of the paper book and the purchase deed was filed before the Assessing Officer which is placed at page 57 to 65 of the paper book. The evidence of agricultural (P-II Khasra ) is placed at page Nos. 55 and 56 of the paper book and kisan kitab is also placed at page No. 56A to 56C of the paper book. Further, evidence of agricultural character of the land (P- II, Khasra are also provided in page 66 to 67B) and kisan kitab is at page No.67C and 67D of the paper book. The agricultural activity being carried on in the new land purchased , agricultural income disclosed in the return of assessment year 2010-11 which is placed at page No.9 of the paper book and assessment year 2011-12 which is placed at page 5 of the paper book.
8. The Ld. AR further submitted that the new land purchased after entering into sale agreement of old land which are at page 10 to 27 of the paper book. Sale agreement is not disputed and period of 2 years to be counted from the date of sale agreement in this regard. The Ld. AR has placed reliance on the decision of the Hon'ble Supreme Court of India in the case of Sanjeev Lal Vs. CIT (2014) 365 ITR 389 (SC). In this case, agreement to sale dated 27.12.2002. New house was being purchased on 30.04.2003. The old house was transferred on 24.09.2004. The Hon'ble Apex Court has held that period of investment to be counted from date of sale agreement and not from date of registration. The Ld. AR further submitted that object of section 54B is to encourage cultivation. Purposive 6 ITA No. 30/RPR/2014 A.Y.2009-10 interpretation has to be adopted. In this regard, the Ld. AR has placed reliance on the decision of Hon'ble Supreme Court of India in the case of Oxford University Press (2001) 3 SCC 359, (2001) 247 ITR 658(SC).
9. The Ld. AR further appraised the Bench regarding the CBDT Circular dated 11.04.1955 and dated 18.05.1965 and submitted that even if the assessee did not claim deduction, the Assessing Officer is duty bound to guide the assessee and allow the deduction, wherever it is applicable to the assessee.
10. On the other hand, the Ld. DR has placed reliance on the orders of the Authorities below.
11. We have perused the case records, analyzed the facts and circumstances in this case and considered the judicial pronouncements placed before us. That so far as the facts in this case are concerned, it is undisputed that the assesse had sold agricultural land. The corresponding evidences regarding the sale of land and nature of land has been annexed in the paper book filed before us. Similarly, it is not disputed that the land purchased is agricultural in nature. There are evidences on record such as kisan kitab, Kistbandhi Khataoni issued by Patwari, P-II Khasra and returned filed which disclosed agricultural income. 7 ITA No. 30/RPR/2014
A.Y.2009-10 The Ld. DR did not dispute this fact that the assessee was not in possession of agricultural land where agricultural activities were done continuously which was sold and then another agricultural land was purchased. Thereafter also, agricultural activities were performed continuously. Even in the return of income filed evidence of agricultural income has been shown.
12. Regarding sale agreement, period of 2 years for the purpose of Section 54B of the Act, it is absolutely clear from the decision of the Hon'ble Apex Court in the case of Sanjeev Lal Vs. CIT (supra.) that date to be calculated from the date of sale agreement and not from the date of registration for the purpose of counting period of investment. The view of the Hon'ble Supreme Court of India has also been taken into consideration in the case of Gautam Jhunjhunwala Vs. Income Tax Officer in ITA No.1356/Kol/2017 dated 7th September, 2018. The Kolkata Bench of the Tribunal has observed that as per the ratio laid down by the Hon'ble Apex Court, there is right in personam which is created in favour of the vendee in whose favour the agreement to sale had been executed. The moment the sale agreement is executed between vendor and vendee, some right of the vendor goes out and some rights of the vendee comes in. The right of personam have been created in favour of the vendee, the moment agreement to sale is executed in favour of the vendee, some rights have accrued to the vendee because of which there could not be any 8 ITA No. 30/RPR/2014 A.Y.2009-10 interruption in the transaction and it has to be continued in the same and exact manner decided in the sale agreement. Therefore, the period of investment to be counted from the date of sale agreement itself and not from the date of registration.
Further, we agree with the submissions of the Ld. AR that it is duty of the Assessing Officer to guide the assessee and allow the deduction wherever and whenever it is applicable depending on facts and circumstances of each case. The Income Tax laws are welfare in nature and the very purpose of welfare legislation is that there should not be any cohesive action by the quasi-judicial Authority. Even if , the assessee has not claimed, the Assessing Officer is duty bound to guide the assessee and allow the deduction. Thus, duty of the Revenue Authority is to communicate with the assessee and provide them required relief or deduction for which he is legally eligible. In that way, there will be continuity of justice and fair-play and the principles of natural justice shall be upheld for its true purpose and applicability.
13. In the present case, all the relevant documents viz. sale deed regarding sale and purchase of agricultural land, kisan kitab, Kistbandhi Khataoni issued by Patwari, P-II Khasra were filed before the Assessing Officer. Therefore, in all probability and fairness, the Assessing Officer should have allowed the claim of deduction u/s.54B of the Act to the 9 ITA No. 30/RPR/2014 A.Y.2009-10 assessee. In view of the matter, we set aside the order of the Ld. CIT(Appeals) and allow the appeal of the assessee.
14. In the result, appeal of the assessee is allowed. Order pronounced on 15th day of January, 2019.
Sd/- Sd/-
ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY
ACCOUNTANT MEMBER JUDICIAL MEMBER
रायपुर/ RAIPUR ; ददनांक / Dated : 15th January, 2019. SB आदेश की प्रधतधलधप अग्रेधषत / Copy of the Order forwarded to :
1. अपीलाथी / The Appellant.
2. प्रत्यथी / The Respondent.
3. The CIT (Appeals), Bilaspur (CG)
4. The CIT, Bilaspur (C.G.)
5. धवभागीय प्रधतधनधध, आयकर अपीलीय अधधकरण, रायपुर बेंच, रायपुर / The DR, ITAT, Raipur Bench, Raipur.
// True Copy // आदेशानुसार / BY ORDER, धनजी सधचव / Private Secretary आयकर अपीलीय अधधकरण, रायपुर / ITAT, Raipur.
10ITA No. 30/RPR/2014
A.Y.2009-10 Date 1 Draft dictated on 14.01.2019 Sr.PS/PS 2 Draft placed before author 15.01.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr.PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order