Asstt.Commissioner of Income tax Cir.6, Nagpur V. Shri Gajanan Harischandra Bagwe, Nagpur

CO 14/NAG/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8571 (ITAT-NAGPUR)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 27-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR MILLIND BHUSARI
• Assessee Lawyers: S C THAKKAR; C J THAK K
• Keywords: Gift
• Section: 143(3); 54B; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR RAO , A M ITA NO. 247 / N AG / 20 1 2 ( ASSESSMENT YEAR 2004 - 05 ) SHRI GAJANAN HARISHCHANDRA BAGWE, 13, JAGNADE CHOWK, NANDANVAN, NAGPUR - 440 009 VS. ACIT CIRCLE - 6 , NAGPUR - 440 001 . PAN NO. : A BRPB 9253 E ( APPELLANT ) .. ( RESPONDENT ) AND ITA NO S . 2 57 & 258 / NAG /20 12 ( ASSESSMENT YEAR 2004 - 05 & 2005 - 06 ) ACIT CIRCLE - 6, NAGPUR - 440 001. VS. SHRI GAJANAN HARISHCHANDRA BAGWE, 13, JAGNADE CHOWK, N ANDANVAN, NAGPUR - 440 009 PAN NO. : A BRPB 9253 E ( APPELLANT ) .. ( RESPONDENT ) AND C.O. NO S . 1 4 & 15 / NAG /20 12 (ARISING OUT OF ITA NOS.257 & 258/NAG/2012) ( ASSESSMENT YEAR 2004 - 05 & 2005 - 06 ) SHRI GAJANAN HARISHCHANDRA BAGWE, 13, JAGNADE CHOWK, NANDANVAN, NAGPUR - 440 009 VS. ACIT CIRCLE - 6, NAGPUR - 440 001. PAN NO. : A BRPB 9253 E ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : MR. C.J.THAK K AR & MR. S.C. THAKKAR REVENUE BY : DR. MILLIND BHUSARI DATE OF HEARING : 6 TH MARCH ., 201 3 DATE OF PRONOUNCEME NT : 03/04/ 201 3 O R D E R P ER SHRI R.K.GUPTA, JM : ITA NO. 247/NAG/2012 ALONG WITH CROSS OBJECTIONS I.E.CO NOS.14&15/NAG/2012 HA S BEEN FILED BY THE ASSESSEE, WHEREAS THE DEPARTMENT HAS FILED TWO APPEALS I.E. ITA NO.257 & 258/NAG/2012 BEFORE THE ITA T NAGPUR BENCH, NAGPUR, AGAIN ST THE ORDER OF LEANED CIT(A) - II , NAGPUR (MAHARASHTRA) RELATING TO ASSESSMENT YEARS 2004 - 05 & 2005 - 06 , RESPECTIVELY , WHICH HA VE BEEN HEARD THROUGH E - COURT, MUMBAI. ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 2 \ 2 . SINCE COMMON ISSUES ARE INVOLVED IN ALL THE CASES, THEREFOR E, FOR THE SAKE OF CONVENIENCE , THESE CASES HAVE BEEN HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 3 . IN ITA NO. 247 /NAG/2012 , THE ASSESSEE HAS TAKEN THE GROUND THAT THE CIT(A) ERRED IN SPLITTING THE SINGLE TRANSACTION IN TWO ASSESSMENT YEARS I.E. 200 4 - 05 & 2005 - 06 AND THE CIT(A) SHOULD HAVE TAKEN INTO CONSIDERATION THAT THE AMOUNT OF RS. 1,66,37,325/ - WAS ACTUAL CONSIDERATION AND NOT THE AMOUNT OF RS. 2,85,30,028/ - . 3.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS HAVING 28.5 3 ACRE OF LAND AND TH IS LAND WAS BEARING FIELD NO. 43 AND WAS OWNED BY BAGWE FAMILY EARLIER. THEREAFTER THE LAND WAS DIVIDED BETWEEN THE FAMILY MEMBERS. THE ASSESSEE I.E. SHRI GAJANAN BAGWE BECAME THE OWNER OF 25.82 ACRES OF AGRICULTURAL LAND. ORIGINALLY, AS STATED ABOVE, THIS LAND WAS OWNED BY BAGWE FAMILY, WHICH WAS PURCHASED SOMETIME IN THE YEAR 1955 - 1964 AND IN THE MEANTIME SMT. BHAGIRATHIBAI, D/O SHAMRAO, DIED IN 1989 - 90 . THEREAFTER SUIT WAS FILED IN APPROPRIATE COURT, WHEREBY THE ASSESSEE GOT THE ABOVE STATED LAND. SOME O F THE LAND WAS GIFTED TO HIM BY FAMILY MEMBER AND SOME OF THE LAND WAS ACQUIRED BY HIM AS HIS SHARE AND IN TOTALITY THE ASSESSEE BECAME THE OWNER OF 28.5 3 ACRE OF AGRICULTURAL LAND. THE ASSESSEE ENTERED INTO AN AGREEMENT OF SALE ON 8 - 8 - 2003 WITH MAA UMIYA AUDYOGIK VASAHAT SOCIETY. THE SALE DEED WAS EXECUTED ON 4 - 12 - 2004 BY THE ASSESSEE IN FAVOUR OF THE SAID SOCIETY. THE LEASE DEED WAS ALSO EXECUTED ON 4 - 12 - ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 3 2004 BY THE ASSESSEE IN FAVOUR OF THE SOCIETY GIVING 11 PLOTS. THE NET EFFECT OF THE TRA NSACTION BETWE EN THE ASSESSEE AND SAID SOCIETY WAS THAT THE ASSESSEE TRANSFERRED ABOVE SAID 28.5 3 ACRES OF AGRICULTURAL LAND EXCEPT 17000 SQ.MTR. OF LAND IN THE FORM OF 11 INDUSTRIAL PLOTS IN FAVOUR OF THE SAID SOCIETY. THE ASSESSEE RETAINED SAID 17000 SQ.MTR. LAND WHIC H WAS GOT CONVERTED INTO STOCK - IN - TRADE IN THE FORM OF INDUSTRIAL PLOTS DURING THE ASSESSMENT YEAR 2005 - 06. THE ASSESSEE FIRST DELIVERED SAID ENTIRE LAND TO THE SOCIETY UNDER THE ABOVE REFERRED AGREEMENT AND SALE DEED AND IN TURN THE SOCIETY DELIVERED BACK 17000 SQ.MTR. OF LAND IN THE FORM OF 11 INDUSTRIAL PLOTS BY WAY OF PERMANENT LEASE TO THE ASSESSEE ON THE SAME DAY OF THE SALE DEED I.E. ON 4 - 12 - 2004 . THE ASSESSEE HAS SHOWN THE CONSIDERATION OF RS. ,66,37,325/ - IN RESPECT TO ENTIRE LAND SOLD TO THE SOCIET Y EXCEPT 17000 SQ.MTR. OF AGRICULTURAL LAN D, WHICH WAS CONVERTED INTO ST OCK - IN - TRADE AND ULTIMATELY RETAINED BY THE ASSESSEE. FOR 17000 SQ.MTR OF LAND, NO CONSIDERATION WAS PAID BY THE ASSESSEE TO THE SOCIETY. THE ASSESSEE IN FACT H AS SOLD THE ENTIRE LAND OF 28.53 ACRE FOR RS. 10,000/ - PER HECTARE, WHICH IS EQUIVALENT TO RS. 2,85,30,028/ - . THEREAFTER IN THE AGREEMENT, IT HAS BEEN MENTIONED THAT THE ASSESSEE WILL ACCEPT A SUM OF RS. 1,66,37,325/ - AND 11 PLOTS. COPY OF THE AGREEMENT IS PLACED IN THE PAPER BOOK AT PAGE 104. THEREAFTER THE SALE DEED WAS EXECUTED ON 4 - 12 - 2004 FOR A CONSIDERATION OF RS. 1,66,37,325/ - FOR THE LAND OF 28.53 ACRE EXCEPT 17000 SQ.MTR., WHICH IS IN THE SHAPE OF 11 INDUSTRIAL DEVELOPED PLOTS. IN THE SALE DEED, IT HAS BEEN MENTIONED THAT TH ESE ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 4 PLOTS HAVE BEEN RECEIPTED BY THE ASSESSEE WITHOUT PAYING ANY PREMIUM TO THE SOCIETY. 3.2 THE AO HELD THAT THE ASSESSEE HAS RECEIVED CONSIDERATION OF RS. 2,85, 30,028/ - AND NOT RS. 1,66,37,325/ - FOR THE SIMPLE REASON THAT THE AMOUNT OF RS. 1.66 CRORE OR O DD WAS RECEIVED IN CASH AND 11 INDUSTRIAL PLOTS WERE RECEIVED IN GIFT WHICH WERE DULY DEVELOPED. ACCORDINGLY, THE CONTENTION OF THE ASSESSEE WAS REJECTED BY THE AO WITH THE CONSIDERATION OF RS. 1,66,37,325/ - AND NOT OF RS. 2.85 CRORE ODD. THESE FACTS WERE DI SCUSSED BY THE AO WHILE COMPLETING THE ASSESSMENT FOR ASSESSMENT YEAR 2005 - 06 AND ACCORDINGLY CAPITAL GAIN ON THE AMOUNT OF RS. 2,85,30,028/ - WAS COMPUTED INSTEAD OF AT RS.1.66 CRORE OR ODD . THEREAFTER THE AO NOTICED THAT THIS AMOUNT HAS TO BE ASSESSED IN A SSESSMENT YEAR 2004 - 05 AND NOT IN 2005 - 06 BECAUSE THE AGREEMENT WAS ENTERED INTO ON 8 - 8 - 2003, WHICH FALLS UNDER ASSESSMENT YEAR 2004 - 05 , THEREFORE, THE AO COMPUTED THE CAPITAL GAIN ON THE AMOUNT OF RS. 2.85 CRORE OR ODD FOR ASSESSMENT YEAR 2004 - 05 ALSO BY P ASSING ORDER U /S. 143(3) R .W.S 1 47 OF THE ACT. 3.3 THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) . DETAILED SUBMISSIONS WERE FILED BEFORE THE CIT(A), WHICH WERE SENT TO THE AO FOR HIS REMAND REPORT AND THEREAFTER THE REMAND REPORT WAS ALSO RECEIVED. THE SUBMISSION AND THE REMAND REPORT HAVE BEEN INCORPORATED IN THE ORDER OF THE LEARNED CIT(A) . THE PLEA WAS ALSO TAKEN BEFORE THE CIT(A) THAT THE CAPITAL GAIN IS ASSESSABLE FOR ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 5 ASSESSMENT YEAR 2005 - 06 AND NOT FOR ASSESSMENT YEAR 2004 - 05. IT WAS ALSO SUBMITT ED THAT THE ACTUAL AMOUNT IS OF RS. 1.66 CRORE OR ODD AND NOT RS. 2.85 CRORE OR ODD AS THE ASSESSEE HAS RECEIVED ONLY RS. 1.66 CRORE AND REMAINING PLOT WHICH WERE RECEIVED BY THE ASSESSEE BACK WAS THE PROPERTY OF THE ASSESSEE AND THE SAME WERE NOT SOLD. BOTH THESE CONTENTIONS, AFTER TAKING INTO CONSIDERATION THE SUBMISSION AND REMAND REPORT AND MATERIAL ON RECORD, WERE REJECTED BY THE LEARNED CIT(A) BY HOLDING THAT THE AGREEMENT WAS ENTERED INTO IN THE ASSESSMENT YEAR 2004 - 05, THEREFORE, THEY ARE ASSESSABLE FO R ASSESSMENT YEAR 2004 - 05. THE CONTENTION THAT THE ASSESSEE HAS RECEIVED ONLY RS. 1.66 CRORE OR ODD AND NOT RS. 2.85 CRORE OR ODD WAS ALSO REJECTED AS LEARNED CIT(A) FOUND THAT THE SALE DEED AS WELL AS THE AGREEMENT IS VERY CLEAR BY WHICH THE ENTIRE AGRICULT URAL LAND WAS SOLD AT THE RATE OF RS. 10,000/ - PER ACRE. THEREFORE, THE CONSIDERATION OF ENTIRE LAND HAS TO BE TAKEN INTO CONSIDERATION. 3.4 REGARDING THE ISSUE THAT ASSESSEE HAS NOT SHOWN THE LAND MEASURING 17000 SQ.MTR., WHICH WAS RECEIVED IN SHAPE OF 11 INDUSTRIAL PLOTS, LEARNED CIT(A) HELD THAT THESE PLOTS WERE DEVELOPED BY THE SOCIETY AND THE ENTIRE EXPENDITURE WAS INCURRED BY THE SOCIETY AND THEREAFTER AS PER THE AGREEMENT, THEY WERE RETURNED TO THE ASSESSEE, THEREFORE, THE SALE CONSIDERATION WILL BE TREATED AS RS. 2.85 CRORE OR ODD AND NOT RS. 1.66 CRORE OR ODD. BEING AGGRIEVED WITH THE AFORESAID ACTION OF THE LEARNED CIT(A), THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 6 3. 5 DETAILED WRITTEN SUBMISSIONS HAVE BEEN FILED BY THE ASSESSEE THROUGH IS COUNSEL. ON THE OTHER HAND, LEARNED DR HAS PLACED RELIANCE ON THE ORDER OF CIT(A) . 3.6 AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THE ASSESSEE DESERVES TO SUCCEED IN HIS APPEAL IN PART. REGARDING THE CONTENTION THA T THE ASSESSEE HAS RECEIVED ONLY RS. 1.66 CRORE OR ODD AND NOT RS. 2.85 CRORE OR ODD, WERE ARE OF THE VIEW THAT THE AO AND CIT(A) WERE CORRECT IN HOLDING THAT THE SALE CONSIDERATION WAS OF RS. 2.85 CRORE OR ODD AND NOT RS. 1.66 CRORE OR ODD. IN FACT, THE ASSES SEE HAS SOLD THE ENTIRE LAND AS PER AGREEMENT DATED 8 - 8 - 2003 AND BY THIS AGREEMENT, IT HAS BEEN AGREED TO SALE THE ENTIRE LAND OF 28.52 ACRE FOR A CONSIDERATION OF RS. 2.85 CRORE OR ODD SUBJECT TO THAT THE LAND MEASURING 17000 SQ.MTR. WILL BE RETAINED IN S HAPE OF DULY DEVELOPED 11 INDUSTRIAL PLOTS. AS PER THE AGREEMENT THE SOCIETY DEVELOPED THE LAND AND 11 DEVELOPED INDUSTRIAL PLOTS WHICH WERE MEASURING 17000 SQ.MTR. WERE RETURNED TO THE ASSESSEE. IT MEANS THAT THE ASSESSEE HAS RECEIVED A SUM OF RS. 1.66 CRO RE OR ODD IN CASH AND 17000 SQ.MTR. LAND IN SHAPE OF 11 DEVELOPED INDUSTRIAL PLOTS. FROM THESE FACTS, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT SOLD THE ENTIRE LAND. AGREEMENT AND SALE DEED IS VERY CLEAR, THEREFORE, WE HELD THAT LEARNED AO AND CIT(A) WE RE JUSTIFIED IN HOLDING THAT THE ENTIRE LAND WAS SOLD FOR A CONSIDERATION OF RS. 2.85 CRORE OR ODD. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE. ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 7 3.7 HOWEVER, WE FIND WEIGHT IN THE CONTENTION OF THE ASSESSEE THAT THE SALE CONSIDERA TION HAS ALREADY BEEN ASSESSED FOR ASSESSMENT YEAR 2005 - 06 ON SUBSTANTIVE BASIS AND NO RECTIFICATORY ORDER HAS BEEN PASSED BY THE DEPARTMENT, THEREFORE, THE ASSESSMENT FOR ASSESSMENT YEAR 2005 - 06 MADE ON SUBSTANTIVE BASIS IS FINAL. THEREAFTER REOPENING OF THE ASSESSMENT FOR ASSESSMENT YEAR 2004 - 05 AND MAKING ADDITION IN ASSESSMENT AND COMPUTING THE CAPITAL GAIN FOR ASSESSMENT YEAR 2004 - 05, IN OUR VIEW, WAS NOT JUSTIFIED. ON MERIT ALSO IT IS SEEN THAT THE SALE DEED WAS EXECUTED ON 4 - 12 - 2004 FALLS UNDER A SSESSMENT YEAR 2005 - 06 AND AS PER SALE DEED THE POSSESSION OF THE LAND WAS ALSO GIVEN IN THIS YEAR. IN PARA 8, IT HAS BEEN SPECIFICALLY MENTIONED THAT THE ASSESSEE HAS DELIVERED THE ACTUAL POSSESSION OF THE PROPERTY HEREBY SOLD TO THE PURCHASER IN VACANT A ND PEACEFUL CONDITION AND THE PURCHASER HAS TAKEN OVER THE SAME. THIS CLAUSE IS AS PER SALE DEED EXECUTED ON 4 - 12 - 2004 . THEREFORE, FOR THIS REASON ALSO, THE CAPITAL GAIN HAS TO BE ASSESSED FOR THE ASSESSMENT YEAR 2005 - 06 AND NOT FOR 2004 - 05. EVEN AND OTHER WISE AS STATED ABOVE, THE ASSESSMENT FOR ASSESSMENT YEAR 2005 - 06 HAS BEEN COMPLETED ON SUBSTANTIVE BASIS, THEREFORE, FOR THIS REASON ALSO, THE CAPITAL GAIN HAS TO BE ASSESSED FOR ASSESSMENT YEAR 2005 - 06 AND NOT FOR ASSESSMENT YEAR 2004 - 05. ACCORDINGLY, THI S GROUND OF THE ASSESSEE IS ALLOWED. 4 . IN ITA NO. 257/NAG/2012 FILED BY THE DEPARTMENT FOR THE ASSESSMENT YEAR 2004 - 05, IT HAS OBJECTED IN REGARD TO DIRECTING THE AO ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 8 TO ADOPT DATE OF REGISTRATION AS CRUCIAL DATE, IN RESPECT OF TRANSFER OF 8 ACRES OF LAND RECEIVED AS GIFT BY ASSESSEE FOR THE PURPOSE OF DETERMINING CAPITAL GAINS WITHOUT APPRECIATING THE PROVISIONS OF SECTION 2(47 ) (V) OF THE ACT AND DIRECTING THE AO TO ALLOW EXEMPTION UNDER SECTION 54B ON THE PORTION OF SALE CONSIDERATION RECEIVED BY THE ASSE SSEE IN RESPECT OF HUF LAND. 4 .1 LEARNED DR PLACED RELIANCE ON THE ORDER OF THE AO. ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDER OF CIT(A) . 4 .2 WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES. AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , WE NOTED THAT THE CIT(A) BIFURCATED THE CAPITAL GAIN IN TWO YEARS IN RESPECT OF 28.5 3 ACRE OF LAND AS A CONSIDERATION OF RS. 2, 05 , 30, 000 / - WAS RECEIVED DURING THE ASSESSMENT YEAR 2004 - 05 AND A SUM OF RS.80 LACS WAS RECEIVED DURING ASSESSMENT YEAR 2005 - 06 AND LEARNED CIT(A) HELD THAT AMOUNT OF RS. 2,05,30,000/ - WILL BE ASSESSABLE FOR ASSESSMENT YEAR 2004 - 05 AND REMAINING AMOUNT WILL BE ASSESSABLE FOR ASSESSMENT YEAR 2005 - 06. WE HAVE ALREADY DECIDED THIS ISSUE THAT THE ENTIRE C APITAL GAIN HAS TO BE ASSESSED FOR ASSESSMENT YEAR 2005 - 06 AND NOT FOR ASSESSMENT YEAR 2004 - 05 . THEREFORE, FOR ACADEMIC PURPOSE, GROUNDS OF THE DEPARTMENT MAY BE TREATED AS ALLOWED FOR THE REASON THAT THERE CANNOT BE SPLITTING IN RESPECT OF SALE OF ENTIRE AGRICULTURAL LAND OF 28. 53 ACRE. ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 9 THE ENTIRE CONSIDERATION HAS TO BE ASSESSED IN ONE YEAR I.E. FOR ASSESSMENT YEAR 2005 - 06 WHEN THE SALE DEED WAS EXECUTED AND THE POSSESSION WAS HANDED OVER. THEREFORE, THE FIRST GROUND OF DEPARTMENT IS DISPOSED OF AS ABOVE. 4 .3 REGARDING THE ISSUE IN RESPECT TO DEDUCTION UNDER SECTION 54B , THIS ISSUE IS ALSO SETTLED BY OUR ABOVE FINDING BECAUSE WE HAVE HELD THAT THE ENTIRE CAPITAL GAIN IS TO BE ASSESSED FOR ASSESSMENT YEAR 2005 - 06 AND NOT FOR ASSESSMENT YEAR 2004 - 05 , THEREF ORE, IF THERE WILL BE ANY EXEMPTION UNDER SECTION 54B OF THE ACT, THAT WILL BE FOR ASSESSMENT YEAR 2005 - 06 AND NOT FOR ASSESSMENT YEAR 2004 - 05. FOR THE PURPOSE OF ACADEMIC, THE ISSUE MAY BE SAID IN FAVOUR OF THE DEPARTMENT BECAUSE NO EXEMPTION UNDER SECTIO N 54B IS TO BE ALLOWED FOR THE YEAR UNDER CONSIDERATION I.E. FOR ASSESSMENT YEAR 2 004 - 05 . WE DECIDE ACCORDINGLY. 5 . ITA NO.25 8 /NAG/2012 , FILED BY THE DEPARTM ENT FOR THE ASSESSMENT YEAR 2005 - 0 6 , WHEREIN THE DEPARTMENT HAS OBJECTED IN REGARD TO DIRECTING THE AO TO ALLOW DEDUCTION UNDER SECTION 54B ON THE PORTION OF SALE CONSIDERATION RECEIVED BY ASSESSEE IN RESPECT OF HUF LAND. 5 .1 LEARNED DR PLACED RELIANCE ON THE ORDER OF AO. ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDE R OF CIT(A). ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 10 5 .2 AFTER CONSIDERING THE ORDER OF THE AO AND CIT(A) , WE FOUND THAT THE CIT(A) HAS ASCERTAINED THE FACTUAL ASPECT AND IT IS SEEN THAT THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 54B AS THE ASSESSEE HAS PURCHASED CERTAIN LAND DURING THE YE AR . WE HAVE ALREADY DISCUSSED THE ISSUE THAT THE ENTIRE CAPITAL GAIN IS ASSESSABLE FOR ASSESSMENT YEAR 2005 - 06 AND WHATEVER THE EXEMPTION UNDER SECTION 54B IS ALLOWABLE AS PER PROVISION OF THAT IS TO BE ALLOWED FOR ASSESSMENT YEAR 2005 - 06 . WE FURTHER NOTED THAT THE AO HAS HIMSELF ALLOWED EXEMPTION UNDER SECTION 54B TO THE EXTENT OF RS. 20,50,210/ - FOR ASSESSMENT YEAR 2005 - 06. IF THERE IS ANY OTHER EXEMPTION IS ALLOWABLE THAT CAN BE EXAMINED BY THE AO ON THE BASIS OF OUR FINDING THAT ENTIRE CAPITAL GAIN IS AS SESSABLE DURING THE ASSESSMENT YEAR 2005 - 06. THIS GROUND OF DEPARTMENT MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. WE ORDER ACCORDINGLY. 6 . CROSS OBJECTION I.E. CO NO.14/NAG/2012 , FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2004 - 05 IS IN SUPPORT OF THE ORDER OF LEARNED CIT(A) , THEREFORE, DOES NOT REQUIRE ANY ADJUDICATION UPON. HOWEVER, THE CROSS OBJECTION I.E. CO NO.15/NAG/2012 , WHICH IS IN RESPECT TO ASSESSMENT YEAR 2005 - 06, THE ASSESSEE HAS CONTENDED THAT C IT (A) SHOULD HAVE GIVEN EXEMPTION IN RES PECT OF ALL THE THREE AGRICULTURAL LAND PURCHASED BY THE ASSESSEE OUT OF SALE CONSIDERATION RECEIVED BY THE ASSESSEE AND SALE OF AGRICULTURAL LAND EXECUTED BY SALE DEED ON 4 - 12 - 2004 . ITA NO S . 247, 257&258 /20 1 2 & CO NOS. 14 & 15/2012 11 6 .1 THIS ASPECT CAN BE EXAMINED BY THE AO AFRESH AND IF IT IS FOUND TH AT ANY AGRICULTURAL LAND HAS BEEN PURCHASED BY THE ASSESSEE OUT OF SALE CONSIDERATION AND THE SAME IS ALLOWABLE AS PER PROVISION OF LAW, THEN THE SAME SHOULD BE ALLOWED, OTHERWISE THE AO WILL PASS A SPEAKING ORDER. WE ORDER ACCORDINGLY. 7 . RESULTANTLY, AP PEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2004 - 05 (I.E. ITA NO. 247 /NAG/2012 ) IS ALLOWED IN PART AND APPEALS OF THE DEPARTMENT (I.E. ITA NOS.257&258/NAG/2012) ARE ALLOWED FOR ACADEMIC PURPOSES AND CROSS OBJECTION (CO NO.14/NAG/2012) FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2004 - 05 IS DISMISSED, WHEREAS THE CROSS OBJECTION I.E. CO NO. 15/NAG/2012 FILED FOR ASSESSMENT YEAR 2005 - 06 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF APRIL, 2013. SD/ - SD/ - ( D.KARU NAKAR RAO ) ( R.K.GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 03 / 04 / 201 3 . PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) ,NAGPUR . 4. CIT 5. DR, ITAT, M UMBAI /NAGPUR 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI