Case Law Details

Case Name : Majid Khan Nisar Khan Vs ITO (ITAT Pune)
Appeal Number : ITA No. 901/Pun/2016
Date of Judgement/Order : 16/08/2018
Related Assessment Year : 2012-13
Courts : All ITAT (5012) ITAT Pune (146)

Majid Khan Nisar Khan Vs ITO (ITAT Pune)

Revenue records clearly show that there was cultivation on the land. In so far as determination of two years period is concerned, the period of two is to be determined from date of sale and not the immediately two preceding financial years. The date of sale of land is 3-1-2012. Thus, the period of two years have to be reckoned from January, 2010 onwards. As has been pointed earlier that the land of the assessee is Jirayat land. The assessee could cultivate Kharif crop only on the land during the period starting from April to September. The assessee has shown from the records that the land was under cultivation during the immediately two preceding years and the assessee had grown soyabean and jowar crops on the land. The assessee has satisfied the conditions that the land is being used in two immediately preceding years for the purpose of agriculture before the date of sale.

The assessee has placed reliance on the decision of the co-ordinate Bench of the Tribunal in the case of Ratnesh Narliari Jakhadi v. ITO (supra) to suggest that it is not necessary that the land should have used for agri­cultural purposes for full two years immediately preceding the date of transfer. Even if the land is used for some days in the year earlier to the preceding year it would be sufficient for compliance with the provisions of section 54B of the Act.

The learned Departmental Representative has placed reliance on the decision of the Hon’ble Andhra Pradesh High Court in the case of CIT v. Bolla Ramaiah (supra). We find that the facts of the said case are distin­guishable. In the said case, undisputedly, the land was not used by the assessee or his parents for agricultural purpose in two years immediately preceding the date of acquisition. In the present case documents on record suggest that the assessee had used the land for agricultural purpose during the financial years 2010-11 and 2011-12. Therefore, the decision rendered in the case of CIT v. Bolla Ramaiah (supra) would not support the case of the Department.

We are of the considered view that the assessee has complied with all the conditions for claiming the exemption under section 54B of the Act in the assessment year under appeal.

RELEVANT EXTRACT OF ITAT JUDGMENT

This appeal by the assessee is directed against the order of the Commissioner (Appeals)-! Aurangabad dated 21-3-2016 for the assessment year 2012-13.

2. The brief facts of the case as emanating from records are : The assessee purchased land at Gut No. 126, Village-Nerli within the municipal limit of Nanded city on 13-4-2007. The assessee had purchased the aforesaid land jointly with Shri Ajay Shankar Chadawar in equal share. The assessee sold the land on 3-1-2012 to M/s. Ra/laxmi Projects (P) Ltd. for a consideration of Rs. 1,50,00,000. The assessee earned capital gain of Rs. 72,88,087. The assessee deposited his entire share of capital gain in the specified capital gains account with State Bank of India, Kinwat, District Nanded and claimed the benefit of exemption under section 54B of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) in his return of income for the impugned assessment year. During the course of scrutiny assessment proceedings, the assessing officer made enquiries to verify the genuineness of the transactions qua the sale of agricultural land and the assessee’s claim of exemption under section 54B of the Act. The assessing officer concluded that the agricultural land on which the assessee had claimed the exemption under section 54B was not utilised for cultivation for the last 2 to 3 years. The assessing officer further held that since the land in question is the urban land, therefore, the provisions of section 54B would not apply on the capital gains arising from sale of such land. The assessing officer denied the benefit of exemption claimed by the assessee and made addition of the entire capital gain amount i.e., Rs. 72,88,087.

Aggrieved by the assessment order dated 5-2-2015 the assessee filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) rejected the contentions of the assessee and upheld the additions made by the assessing officer. Now, the assessee is in second appeal before the Tribunal assailing the findings of the Commissioner (Appeals).

3. The grounds raised by the assessee in appeal are as under :–

“1. The learned Commissioner (Appeals), Aurangabad is not justified in confirming the dis allowance of Rs. 72,88,087 being exemption claimed by the appellant under section 54B of the Income Tax Act, 1961.

2. The learned Commissioner (Appeals), Aurangabad has erred in violating the principles of natural justice and failed to consider the evidences of land being used for agricultural purposes in the preceding 2 years from the year of sale of agricultural land at village Nerli, District Nanded. The action of the Commissioner (Appeals), Aurangabad is wholly unreasonable, uncalled for and bad in law.

3. Such other orders be passed as may be deemed fit and proper.

4. The appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of appeal.”

4. Shri Hari Krishna and Shri Bashiruddin Shaikh appearing on behalf of the assessee submitted that the assessee is a salaried employee working in Maharashtra State Electricity Transmission Co. Ltd. and is also an agriculturist. The assessee purchased land admeasuring 1 hectre 04 R at Gut No. 126, Village-Nerli, Distt. Nanded on 13-4-2007 jointly with Shri Ajay Shankar Chadawar. The assessee carried out agricultural activity at the aforesaid land during the financial year 2007-08. Toor Dal was culti­vated during the aforesaid period. During the financial year 2008-09 the land of the assessee along with various other agriculturists in the area were temporarily acquired by the District Administration in connection with Tri­centenary celebrations of “Guru-ta-Gaddi” of Shri Guru Granth Saheb. The District Administration was expecting more than 10 lakh Sikh pilgrims to visit holy city of Nanded in connection with tri-centenary celebrations. The District authorities acquired agricultural land of several persons includ­ing the assessee under section 35 of the Land Acquisition Act for providing tented accommodation and parking facilities for pilgrims visiting Nanded city. The land of the assessee was acquired with effect from 1-3-2008 to 15-11-2008. A temporary township was developed, electricity poles were erected and temporary roads were made by spreading murrum.

4.1 The learned Authorized Representative of the assessee submitted that though the land of the assessee was acquired only up to 15-11-2008 yet it took almost one year for the assessee to restore the land to its original shape and making it fit for cultivation. Consequently, no crops could be grown during the financial years 2008-09 and 2009-10. The asses­see again cultivated the land in the financial years 2010-11 and 2011-12. The assessee cultivated Jowar and Soyabean crops on the said land during the respective financial years. The learned Authorized Representative referred to 7/12 extracts at pages 6 and 7 of the paper book. The learned Authorized Representative further submitted that since the land of the assessee is “Jirayat” i.e., only source of irrigation is rain, the land of the assessee is cultivable only during Kharif season. No crop is sown during Rabi season.

4.2 The learned Authorized Representative of the assessee submitted that the assessee sold his share of land to M/s. Rajlaxmi Projects (P) Ltd. on 3-1-2012 and earned capital gain of Rs. 72,88,087. The assessee invested the entire amount in the specified capital gain account with State Bank of India, Kinwat and claimed the benefit of exemption under section 54B of the Act. Before the assessing officer the assessee furnished a copy of the computer generated 7/12 extracts obtained from Maharashtra E-Seva Kendra, Village Kinwat, Taluka Kinwat, District Nanded to show that agri­cultural crops were grown during the financial year 2007-08 and again in the financial years 2010-11 and 2011-12. The learned Authorized Representative submitted that the assessing officer has erred in coming to the conclusion that there was no cultivation on the land in question for the past 2-3 years. Admittedly, during the financial years 2008-09 and 2009-10, the assessee could not cultivate the land for the reasons beyond his control. However, the assessee again started agricultural operation on the land in the financial years 2010-11 and 2011-12.

4.3 The assessing officer has placed heavy reliance on the report of the Inspector which was obtained after three years of the sale of the land by the assessee. If the purchaser of the land has not cultivated the land, it cannot be said that when the land was in possession of the assessee the same was not under cultivation. The revenue record clearly shows that the assessee had cultivated the land, Jowar and Soyabean crops were sown during the financial years 2010-11 and 2011-12. The assessing officer allegedly called information under section 133(6) of the Act from Talathi Village Nerli. As per the information received by the assessing officer from Talathi no agricultural produce since last 6 years is purportedly reflected as no agricultural activities are carried out on the land. This information collected by the assessing officer is against the facts and documents on record. The assessing officer has further commented that 7/12 extracts submitted by the assessee is not genuine. The assessing officer, thereafter, separately obtained 7/12 extracts from Village- Talathi and annexed the same along with the assessment order. The learned Authorized Representative pointed that a perusal of 7/12 extracts annexed along with the assess­ment order and the 7/12 extracts furnished by the assessee at pages 6 and 7 of the paper book are identical and both the 7/12 extracts show that the land in question was under cultivation, Jowar and Soyabean crops were grown on the land during the financial years 2010-11 and 2011-12. There­fore, the observations of the assessing officer are purely based on surmises and conjectures.

4.4 The learned Authorized Representative submitted that the assessing officer has erred in not allowing the benefit of exemption under section 54B of the Act on the ground that since the agricultural land of the assessee falls within 3 kms. from the municipal limit, therefore, it is an urban land and does not fall within the ambit of the provisions of section 54B of the Act. A perusal of the provisions of section 54B would show that for availing of the benefit of exemption under the said section, the land should be a capital asset and is used for agricultural purposes in two years immediately preceding the date of transfer of such land. The land in question of the assessee satisfy all the conditions. The assessee sold the land on 3-1-2012. During the financial years 2010-11 and 2011-12 the land was used for agricultural purposes. Since the land of the assessee falls within 8 kms. from the Municipal limits it is a capital asset. Therefore, the reasons given by the assessing officer for rejecting the benefit of section 54B to the assessee are against the provisions of the Act.

4.5 Before the Commissioner (Appeals) the assessee had reiterated the submissions and has furnished some additional documents to show that the land of the assessee was under cultivation. However, the Commissioner (Appeals) rejected the contentions of the assessee after obtaining a remand report from the assessing officer. The learned Authorized Representative submitted that the assessee had furnished a copy of panchnama dated 28-2-2008 to show that agri­cultural land of twelve farmers including that of the assessee comprising in Gat No. 126 was acquired by the District administration. A copy of the panchnama is at pages 18 to 20 of the paper book. A perusal of the panchnama would show that 24 lemon trees were standing on the land of the assessee. A further perusal of panchnama would show that land own­ers were directed not to cultivate the land from January, 2008 till the time the land is in custody of Sub-Divisional Officer for the camp site. The learned Authorised Representative further referred to the public notice dated 30-5-2008 at pages 22 to 23 of the paper book to show that the land was acquired for “Guru-ta-Gaddi” program on temporary basis. The learned Authorized Representative pointed that the assessing officer in remand proceedings had issued letter to Sub-Divisional Officer, Nanded dated 30-12-2015 to verify the facts. The Sub-Divisional Officer, Nanded vide letter dated 11-1-2016 confirmed that the land of the assessee comprising Gat No. 126 was acquired from 1-3-2008 to 15-11-2008. It was further confirmed by the office of Sub-Divisional Officer, Nanded that compensation of Rs. 31,971 was not received by the assessee. The learned Authorized Representative submitted that despite the fact that Sub-Divisional Officer, Nanded had confirmed the acquisition of agricultural land of the assessee, the authorities below disbelieved the submissions made by the assessee.

4.6 The Commissioner (Appeals) gave altogether different reasons for rejecting the claim of the assessee. The Commissioner (Appeals) held that since the assessee is employed at Nagpur, it is improbable that the assessee would carry out agricultural operations himself or even remotely at land situated at Nerli village. The learned Authorized Representative submitted that it is not necessary for the farmers to be always present near the agricultural land for carrying out agricultural activity. The authorities below have brushed aside the evidence furnished by the assessee in the form of revenue records. The fact that 24 lemon trees are planted on the land itself shows that the land was being used by the assessee for agricultural purposes. The Commissioner (Appeals) has wrongly held that as per 7/12 extract dated 21-1-2015 there is no agricultural produce since the last 6 years. The 7/12 extracts dated 21-1-2015 is annexed to the assessment order. A perusal of the same would show that the land was very much in cultivation and the assessee had sown Jowar and Soyabean crops on the land in the financial years 2010-11 and 2011-12.

4.7 The learned Authorized Representative of the assessee submitted that during the remand proceedings, the assessing officer had confronted Shri Shivaji Wamanrao Mirase who is having agricultural land in Gat No. 125 at Village- Nerli. Shri Shivaji Wamanrao Mirase in his statement admitted that agricultural activities were carried out by him during the financial years 2008-09, 2009-10, 2010-11, 2012-13, 2013-14, 2014-15 and 2015-16. The authorities below preferred to place reliance on the statement of Shri Shivaji Wamanrao Mirase rather than taking into consideration the land revenue records and other documents which are more authentic. The learned Authorised Representative submitted that the land comprising in Gat No. 125 is rtot owned by Shri Shivaji Wamanrao Mirase. The learned Authorized Representative in support of his submissions referred, to 7/12 extracts at pages 72 and 73 of the paper book with respect to land in Gat No. 125. The learned Authorized Representative pointed that part of the land is owned by Sumanbi Wamanrao Mirase and Sushant Shivaji Mirase. Therefore, the statement and confirmation by Shri Shivaji Wamanrao Mirase cannot be relied upon to take any adverse view against the asses­see. The findings of authorities below are against the documents on record and facts of the case and are purely based on surmises and conjectures.

4.8 In respect of the sale of agricultural produce to M/s. Shahid Trading Company the learned Authorized Representative submitted that just because the commission agent has not maintained the books of account or does not have permanent account number and is not filing the return of income, adverse inference cannot be drawn against the assessee to say that the assessee has not sold agricultural produce to him. The Revenue has raised doubt over the sale bills issued by M/s. Shahid Trading Company on the premise that the Sale Bill No. 661, date 21-12-2010 was signed in English whereas Shri Hazi Abdul Hazi Mohamed Ibrahim, the then proprietor of M/s. Shahid Trading Company never signed in English. It is common practice that the sale bill are prepared by the employees of the commission agents who may have signed the bill. The learned Authorized Representative further submitted that the sale Bill No. 661, dt. 21-12-2010 placed on record at page 48 of the paper book bear only the signature and there is no stamp. Whereas the bill that has been referred to by the Commissioner (Appeals) in his order bears the stamp. The present proprietor of M/s. Shahid Trading Company, Shri Haji Abdul Sattar has denied that the stamp does not belong his shop. This clearly shows that the Department has put different bill to Shri Haji Abdul Sattar for his comments and not the bill furnished by the assessee which bears no stamp.

4.9 The learned Authorized Representative contended that the assessee has sold the agricultural produce during the financial year 2011-12 to M/s. Rakonde Trading Company. The authorities below have cast aspersions on the said sale of agricultural produce. M/s. Rakonde Trading Company has confirmed the sale of Soyabean by the assessee vide Sale Bill No. 29, date 30-10-2011. The confirmation by M/s. Rakonde Trading Company vindicates the stand of the assessee. Mere fact that Shri Manik Rakonde proprietor of M/s. Rakonde Trading Company was not able to explain the date of sale of the said Soyabean by him to APMC and that no books of account were maintained by M/s. Rakonde Trading Company or no return of income was filed by the said trader, cannot be a ground for rejecting the claim of the assessee.

4.10 The learned Authorized Representative further submitted that the assessee is not a very big farmer. The assessee in his return of income has been showing income from agricultural ranging between Rs. 40,500 to Rs. 87,440, during the assessment years 2004-05 to 2012-13. The Department has been accepting the same without raising any question. Admittedly, the assessee is not maintaining bills for purchase of seeds, fertilizers, pesti­cides, etc. The Department cannot brush aside the entries made in the land revenue records with regard to agricultural crops grown from the financial years 2003-04 to 2007-08 and again from 2010-11 to 2011-12.

4.11 The learned Authorized Representative submitted that the Commissioner (Appeals) rejected the claim of the assessee under section 54B on the ground that the land was not used continuously for the period of two years before the sale for agricultural purposes, the period of two years immediately preceding the date of transfer does not mean that the land should be under cultivation for whole period of two years. Even if the land is used for cultivation for part of a year, it satisfies the condition laid down under section 54B for claiming exemption. In support of his contentions, the learned Authorized Representative placed reliance on the decision of the co-ordinate Bench of the Tribunal in the case of Ramesh Narhari jakftadi v. ITO (1992) 41 ITD 368 (Pune). The learned authorized representative submitted that since the nature of land owned by the asses­see is Jirayat, only Kharif crop can be sown after rainy season. The assessee cannot take Rabi crop on Jirayat land. The learned Authorised Representative contended that 7/12 extracts placed on record clearly show that the assessee has cultivated Kharif crops of Jowar and Soyabean during the financial years 2010-11 and 2011-12.

4.12 Without prejudice, the period of 2 years immediately preceding the sale of land on 3-1-2012 the first year starts from 3-1-2010 and ends on 2-1-2011 and the second year starts from 3-1-2011 and ends on 2-1-2012. The period starting from January falls in Rabi season, during which no crop is grown on Jirayat land. Thereafter, in Kharif season the land was under cultivation as is evident from the documents on record. Thus, the fact that the assessee has not grown any crop in the financial years 2008-09 and 2009-10 would have made no impact for deter­mining the period of two years immediately before the date of sale. The learned Authorized Representative prayed for reversing the findings of the Commissioner (Appeals) and allowing the assessee’s claim of exemption under section 54B of the Act.

5. On the other hand Shri S. K. Jadhav representing the Department vehe­mently defended the impugned order. The learned Departmental Representative submitted that the assessee has himself admitted that there was no cultivation of crop on the land in question during the financial years 2008-09 and 2009-10. The assessee sold the land on 3-1-2012 i.e., during the financial year 2011-12. To comply with the conditions set out in section 54B the assessee should have cultivated the land immediately two preceding years i.e. 2009-10 and 2010-11. Since the assessee has himself admitted that there was no cultivation in the financial year 2009-10 the benefit of exemption under section 54B cannot be allowed to the assessee. The learned Departmental Representative in support of his submissions placed reliance on the decision of the Hon’ble Andhra Pradesh High Court in the case of CIT v. Bolk Ramaioh (1988) 174 ITR 154 (AP).

6. We have heard the submissions made by the representatives of the rival sides and have perused the orders of the authorities below. We have also considered various documents furnished by the assessee in the form of paper book and referred during the course of making submissions, as well as the decisions on which the rival sides have placed reliance. The asses­see’s claim of exemption under section 54B has been denied primarily for the reason that the land in question was not used for agricultural purpose for two years immediately preceding the date on which the said agricul­tural land was sold by the assessee. In so far as the facts relating to purchase of land and sale of land are concerned they are not in dispute. The case of the assessee is that the assessee could not use the land in ques­tion for agricultural purpose in the financial years 2008-09 and 2009-10 as the land was temporary acquired by the District Administration in connection with the Tri- centenary celebrations of “Guru-ta-Gaddi” of Shri Guru Granth Saheb. This fact has been verified by the assessing officer during the remand proceedings. We find that during the assessment proceedings and thereafter, in first appellate proceedings the Revenue authorities have held that the assessee has not used the land for agricul­tural purposes for almost 6 years. To come to such a conclusion the author­ities have placed reliance on the statement of Shri S. D. Devepurkar, Talathi Village- Nerli. The assessee has placed on record 7/12 extracts at pages 6 and 7 of the paper book to show that the assessee was using the land for agricultural purposes during the financial years 2003-04 to 2007-08 and thereafter from 2010-11 to 2012-13. The assessee has been growing Jowar, Soyabean and Toor Dal on the land. The Revenue authorities below have raised doubt over 7/12 extracts placed on record by the assessee. The assessing officer sought fresh copy of 7/12 extracts from Talathi which has been annexed to the assessment order. A perusal of the 7/12 extracts annexed with the assessment order reveal that the same entries have been recorded in the 7/12 extract furnished by the assessee at pages 6 and 7 of the paper book. The learned Departmental authorities has not been able to pin point any variation in the two documents placed on record by the Revenue and the assessee. Both 7/12 extracts on the record clearly indicate that the land comprising in Gat No. 126, Village- Nerli was under cultiva­tion and during the financial years 2010-11 and 2011-12, Jowar and Soyabean were sown.

7. It is explicitly clear from the documents on record that the agricultural land of the assessee was temporarily acquired for Tricentenary celebrations of “Guru-ta-Gaddi” of Shri Guru Granth Saheb from 1-3-2008 to 15-11-2008. Therefore, no agricultural operations could be carried out by the assessee during that period. It has been further contended by the assessee that since a temporary township was created on the land acquired which included the land of the assessee in Gat No. 126, the land was not ready for ailtivation even in the next financial year. The electricity poles were erected and temporary roads were made by spreading murrum. The land had become unfit for cultivation. Electricity poles were removed by the authorities concerned much after the Tri-centenary celebrations were over. It took almost one year for the assessee to make the land fit for altivation.

8. Before proceeding to decide the issue, it would be relevant to see whether the assessee has satisfied all the conditions set out in section 54B have claiming exemption. The conditions necessary for claiming exemption under section 54B are :–

(i) The agricultural land is transferred by any individual or Hindu undivided family.

(ii) The agricultural land has been used by the individual or his parents for agricultural purpose during two years immediately preceding the date of transfer.

(iii) The assessee had purchased another agricultural land (rural or urban) within a period of two years after the date of transfer of the original agricultural land to be used for agricultural purpose.

(iv) If the amount of capital gain is not utilized by the assessee for the purchase of another agricultural land before the date of furnishing return of income under section 139 of the Act, the same should have been deposited before furnishing such return in a notified capital scheme account with bank.

In so far as conditions given in clause (i), (iii) and (iv) are concerned there is no dispute in the present case that the assessee has satisfied these conditions. The only dispute is whether the assessee has used the land for agricultural purpose during the period of 2 years immediately preceding the date of transfer.

9. To substantiate that the assessee has used the land for agricultural purpose the assessee has filed copy of 7/12 extracts as well as certain receipts from the retailers to whom the assessee has allegedly sold the crops. A perusal of 7/12 extracts annexed along with the assessment order as well as placed on record at pages 6 and 7 of the paper book clearly show that the land was under cultivation and the assessee has grown Jowar and Soyabean during financial years 2010-11 and 2011-12. The crop cultivated by the assessee during the financial years 2010-11 and 2011-12 is Kharif crop. The assessee has pointed that the land of the assessee is Jirayat land, i.e., only source of irrigation is rain, therefore, only Kharif crop can be cultivated on the land in question. This fact has not been rebutted by the Department. The land revenue record supports the case of the assessee. The assessee has placed on record sale bills from M/s. Shahid Trading Company, Kinwat and M/s. Rakonde Trading Company, Kinwat to show sale of agricultural produce. The Department has raised suspicion over the genuineness of both the sale bills primarily on the ground that both the aforesaid firm are not maintaining books of account, do not have perma­nent account number and are not filing return of income. We are of the considered view that the claim of the assessee cannot be rejected merely on the ground that the traders have not maintained the books of account or have not filed return of income. The assessee in his return of income for the past several years has been disclosing income from agriculture and the Department has been accepting the same without any query. The land revenue records clearly indicate that land is under cultivation and Jowar and Soyabean crops were grown. The land revenue records are maintained by the Government Department. There is an element of credibility in the records maintained by the Government agencies.

10. The Commissioner (Appeals) has given several peripheral reasons for rejecting the claim of the assessee. The objections raised by the Commissioner (Appeals) in rejecting the claim of the asses­see are of trivial nature and would not impact adjudication of core issue. In our opinion the same are not warranted when the entries made in the revenue records clearly show that there was cultivation on the land. In so far as determination of two years period is concerned, the period of two is to be determined from date of sale and not the immediately two preceding financial years. The date of sale of land is 3-1-2012. Thus, the period of two years have to be reckoned from January, 2010 onwards. As has been pointed earlier that the land of the assessee is Jirayat land. The assessee could cultivate Kharif crop only on the land during the period starting from April to September. The assessee has shown from the records that the land was under cultivation during the immediately two preceding years and the assessee had grown soyabean and jowar crops on the land. The assessee has satisfied the conditions that the land is being used in two immediately preceding years for the purpose of agriculture before the date of sale.

11. The assessee has placed reliance on the decision of the co-ordinate Bench of the Tribunal in the case of Ratnesh Narliari Jakhadi v. ITO (supra) to suggest that it is not necessary that the land should have used for agri­cultural purposes for full two years immediately preceding the date of transfer. Even if the land is used for some days in the year earlier to the preceding year it would be sufficient for compliance with the provisions of section 54B of the Act. The relevant extract of the findings of the Tribunal are reproduced hereinbelow :–

“9. Another aspect that is required to be considered is that the section contemplates user of agricultural land in the two years imme­diately preceding the date of transfer and therefore, the reference is to the years and not during the whole period of two years as viewed by the authorities. In other words, if the asset has been used for the whole of the immediately preceding year and some days of the year earlier to the preceding year, still the requirement of section 54B would be satisfied. Applying the definition of short-term capital asset with reference to the word ‘held’, it could be said that any asset held in the two years immediately preceding the date of transfer would be eligible for relief under section 54B on the capital gains arising on its sale.” Thus, even if the assessee has cultivated only kharif crop in the imme­diately preceding two years from the date of sale of land, the condition set out in section 54B for claiming benefit of exemption is complied with.

12. The learned Departmental Representative has placed reliance on the decision of the Hon’ble Andhra Pradesh High Court in the case of CIT v. Bolla Ramaiah (supra). We find that the facts of the said case are distin­guishable. In the said case, undisputedly, the land was not used by the assessee or his parents for agricultural purpose in two years immediately preceding the date of acquisition. In the present case documents on record suggest that the assessee had used the land for agricultural purpose during the financial years 2010-11 and 2011-12. Therefore, the decision rendered in the case of CIT v. Bolla Ramaiah (supra) would not support the case of the Department.

13. Thus, in view of the facts and documents on record, we are of the considered view that the assessee has complied with all the conditions for claiming the exemption under section 54B of the Act in the assessment year under appeal. Accordingly, the impugned order is set aside and the appeal of the assessee is allowed.

14. In the result, the appeal of the assessee is allowed.

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Tags : ITAT Judgments (5197) Section 54B (9)

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