The Tax Publishers2020 TaxPub(DT) 5294 (Chd-Trib)


Section 45 Section 54B Section 54F

Where facts and circumstances of assessee's case were identical to Tribunal's earlier order in Sheo Ram v. ITO ITA No. 364/Chd/2017, the issue of taxability of capital gain tax on sale of land was, therefore, remanded to AO to decide the issue as to whether assessee's case was covered under the above stated Tribunal's order.

Capital gains - Chargeability - Sale of agricultural land in municipal area, only 10% sale proceeds received in relevant year - Assessee's case allegedly covered by earlier decision of Tribunal.

AO observed that as per information available with his office, assessee had sold land measuring 54 Kanal 13 Marla to M/s. SS Buildhome (P) Ltd. for a total consideration of Rs. 3,75,71,875 on 4-4-2007 and land measuring 13 Kanal 10 Marla to M/s. AJ Builders (P) Ltd. for a total consideration of Rs. 92,81,250 on 13-4-2007. The AO, however, held that since the land sold was situated within the municipal limit of Jagadhari, assessee was liable for capital gain tax. AO, thereafter, assessed the capital gains at Rs. 2,30,33,870. Plea was taken that the proceeds of the sale of the land were invested in the purchase of another agricultural land, therefore, exemption from capital gains tax was claimed under section 54B. However, the said claim of the assessee was rejected by CIT(A) observing that the immovable property was purchased by assessee beyond the due date of filing of the Income Tax Return. Even assessee had not filed Income Tax return for the assessment year 2008-09. It was further observed that the said claim of deduction under section 54B was not made in the return of income, therefore, the said claim was not tenable in appellate proceedings. CIT(A), therefore, dismissed the appeal of assessee. Held: Assessee submitted that issue involved in this appeal is squarely covered by the decision of the Tribunal, dated 9-4-2018 in the case of ' Sheo Ram, Jagadhari v. ITO' ITA No. 364/Chd/2017. In this case, sellers/farmers who had sold the land to the purchasers, had received only part payment of 10% of the entire consideration in the financial year 2007-08 and the remaining consideration was withheld by the builder. The sellers so deputed by the builder, had approached the Punjab & Haryana High Court and the High Court vide Order, dated 5-2-2009 had ordered an investigation into the matter and after considering the report of the Inspector had directed the builder to make the payment of the balance arrears to the sellers/farmers which was paid by the builder in the subsequent years. The Tribunal considering the aforesaid facts in the said case had restored the matter to the file of the AO for the limited purpose of enabling the assessee to establish the similarity of the facts of the case with that of the case of Rajiv Kumar and directed the AO to verify the claim of assessee in this regard and thereafter to pass and order in accordance with law. The issue relating to the claim of deduction under sections 54B and 54F was also restored to the file of the AO to be adjudicated upon afresh after deciding the main issue of the year of taxability of the capital gains.

REFERRED : Sheo Ram, Jagadhari v. ITO' ITA No. 364/Chd/2017, Tejinder Kumar and another v. State of Haryana & Ors.' CWP No. 1908 of 2009 decided on 5-2-2009<.i> and Rajiv Kumar v. ITO' ITA No. 17/Chd/2016 Order, dated 29-6-2016.

FAVOUR : Matter remanded.

A.Y. : 2008-09



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