RAJNI KHANDELWAL, Jaipur V. ITO, Jaipur

ITA 309/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1976 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL CIT DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice; Earning of tax free income; Fair market value
• Section: 143(3); 54B; 50C; 2(14); 6; 63

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 309/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. SMT. RAJNI KHANDELWAL, 90, RAMNATH PURI, KALWAD ROAD, JHOTWARA, JAIPUR. CUKE VS. THE ITO, WARD-3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AJCPK 2589 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L.CHANDEL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.07.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/07/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT (A)-I, JAIPUR, DATED 15.02.2017 PERTAINING TO ASSESSMENT Y EAR 2012-13. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED ON FACTS AND IN LAW IN HOLDING THAT THE AGRICULTURAL LAND SOLD B Y ASSESSEE AT VILLAGE MACHWA IS A CAPITAL ASSET A IT WAS A BARREN LAND AN D NOT USED FOR AGRICULTURAL PURPOSE, HENCE LIABLE TO CAPITAL GAIN TAX. 1.1 THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED ON FACTS AND IN LAW IN ADOPTING THE DEEMED SALE CONSIDERATION OF THE AGRICULTURAL LAND AT RS. 84,04,343/- AS AGAINST ACTUAL CONSIDERA TION OF RS. 44,00,000/- WITHOUT REFERRING IT TO DVO EVEN WHEN S PECIFICALLY REQUESTED TO AO VIDE LETTER DT. 09.03.2015 AND THUS CONFIRMING THE ASSESSMENT OF LONG TERM CAPITAL GAIN AT RS. 40,84,2 25/-. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO BY TREATING T HE SUM OF RS. 2 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. 20,44,682/- RECEIVED BY ASSESSEE OVER AND ABOVE HER SHARE IN THE SALE PROCEEDS OF AGRICULTURAL LAND SOLD AS INCOME FROM U NDISCLOSED SOURCES. 3. THE ASESSEE CRAVES TO AMEND, ALTER AND MODIFY AN Y OF THE GROUNDS OF APPEAL. 4. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 2. BRIEFLY, STATED THE FACTS ARE THAT, THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S 143(3) O F THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 11/03/2015. WHILE FRAMING THE ASSESSMENT THE AO NOTICED THAT TH E ASSESSEE HAD CLAIMED EXEMPT INCOME OF RS. 69,11,348/- U/S 10. THE EXEMPT INCOM E PERTAINS TO SALE CONSIDERATION RECEIVED FROM AGRICULTURAL LAND SOLD AT BARSINGH PU RA, WHICH IS 15 TO 16 KMS AWAY FROM THE MUNICIPAL LIMITS OF JAIPUR NAGAR NIGAM, JA IPUR. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE TREATING THE LAN D AS AGRICULTURAL LAND AND ALSO APPLIED THE PROVISION OF SECTION 50C ADOPTING THE V ALUE AT RS. 84,04,631/- AND COMPUTED THE TAXABLE INCOME OF RS. 40,84,225/-. TH E AO FURTHER ADDED SUM OF RS. 20,44,682/- BEING THE UNDISCLOSED INCOME IN RESPECT OF PROPERTY SOLD AT BARSINGH PURA. AGAINST THIS THE ASSESSEE PREFERRED AN APPE AL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 3. GROUND NOS. 1 AND 1.1 ARE INTER-CONNECTED, GROUND NO. 1 IS AGAINST TREATING THE AGRICULTURAL LAND SOLD BY THE ASSESSEE AT VILLAGE MACHWA AS A CAPITAL ASSET, AS AGAINST THE AGRICULTURE LAND TREATED BY T HE ASSESSEE. 3.1 LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE RELEVANT CONTENTS OF THE SUBMISSIONS ARE REPRODUCED HEREIN BELOW:- 3 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. SUBMISSION:- (GROUND NO. 1) 1. FROM THE FACT STATED ABOVE IT CAN BE NOTED THAT AFT ER THE ORDER OF CIT(A), THERE IS NO DISPUTE THAT THE LAND UNDER CONSIDERATI ON IS SITUATED BEYOND 8 KMS FROM THE OUTER LIMITS OF MUNICIPALITY OF JAIPUR . NOW THE ONLY ISSUE IS THAT WHETHER THE LAND IS AN AGRICULTURAL LAND OR NO T. 2. THE TERM AGRICULTURAL LAND IS NOT DEFINED IN THE AC T. EVEN SECTION 2(14) OF THE ACT DO NOT EXPLAIN THIS TERM. THERE IS NO PROV ISION IN THE INCOME TAX ACT, 1961 THAT FOR A LAND TO BE CONSIDERED AS AGRIC ULTURAL LAND, AGRICULTURAL ACTIVITIES SHOULD BE PERFORMED ON THE SAID LAND. T HEREFORE, WHETHER THE LAND IS AN AGRICULTURAL LAND OR NOT WOULD DEPEND ON ITS CLASSIFICATION IN THE REVENUE RECORDS. THERE IS NO DISPUTE AS TO THE FAC T THAT WHEN THE ASSESSEE SOLD THE LAND, IT WAS CLASSIFIED AS AGRICU LTURAL LAND IN THE REVENUE RECORDS. THIS IS EVIDENT FROM THE COPY OF KHASRA G IRDAWARI PLACED AT PB 9-11. THE CONDITION OF USER OF LAND FOR AGRICULTURAL PU RPOSE IS FOR CLAIMING DEDUCTION U/S 54B AND NOT FOR DETERMINING WHETHER I T IS A CAPITAL ASSET OR NOT U/S 2(14). THEREFORE, ONCE A LAND IS CLASSIFIE D IN THE REVENUE RECORDS AS AN AGRICULTURAL LAND AND IT IS SITUATED BEYOND 8 KMS. OF THE MUNICIPAL LIMIT, IT WOULD REMAIN AN AGRICULTURAL LAND EVEN IF NO AGRICULTURAL ACTIVITIES IS PERFORMED ON THE SAID LAND. CONVERSELY, IF ON A N INDUSTRIAL/COMMERCIAL/RESIDENTIAL LAND, AGRICULTURA L ACTIVITIES ARE CARRIED OUT, THE SAME WOULD NOT BECOME AN AGRICULTURAL LAND . 3. THE LD. CIT(A) HAS OBSERVED THAT THE ASSESSEE STATE D THAT LAND WAS BARREN. THERE WAS NO PHYSICAL POSSESSION OF THE AS SESSEE ON THIS LAND AND THE POSITION WAS OF THE OTHER COPARCENER AND TH EREFORE, THE BASIC OPERATION ON THE LAND WERE NOT PERFORMED BY THE ASS ESSEE TO CHARACTERIZE THE LAND AS AGRICULTURAL LAND AND THE ASSESSEE HAS FAILED TO BRING ON RECORD ANY MATERIAL TO INDICATE THAT THE LAND WAS USED FOR THE AGRICULTURAL ACTIVITIES. THESE OBSERVATIONS MADE BY THE LD. CIT (A) WITHOUT PUTTING ANY 4 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. QUESTION TO THE ASSESSEE ARE INCORRECT. FROM THE C OPY OF KHASRA GIRDAWARI FROM SAMVAT YEAR 2064 TO 2067 (ENCLOSED HEREWITH), IT CAN BE NOTED THAT OUT O 4.05 BIGHA OF LAND, 3.05 BIGHA WAS IRRIGATED LAND AND 1 BIGHA IS BARREN LAND. IN THESE YEARS BAJRA, WHEAT, CHARA WA S GROWN BETWEEN SAMVAT YEAR 2064-2067. THE ASSESSEE SOLD THE LAND IN SAMVAT YEAR 2068. THUS, PRIOR TO THE SALE OF AGRICULTURAL LAND, IT WA S USED FOR AGRICULTURAL ACTIVITIES. FURTHER, WHETHER THE LAND IS USED BY T HE ASSESSEE OR THE COPARCENERS MAKES NO DIFFERENCE IN AS MUCH AS HE IS THE CO-OWNER OF THE LAND. THUS, IT IS EVIDENT THAT THE LAND SOLD BY TH E ASSESSEE IS ANY AGRICULTURAL LAND. THUS, ONCE A LAND IS CLASSIFIED IN THE REVENUE RECORDS AS AN AGRICULTURAL LAND, IRRESPECTIVE OF IT USERS, IT WOULD REMAIN AN AGRICULTURAL LAND EVEN IF NO AGRICULTURAL ACTIVITIES ARE PERFORM ED ON THE SAID LAND. 4. RELIANCE IN THIS CONNECTION IS PLACED ON THE FOLLOW INGS CASES:- CIT VS. BORHAT TEA COMPANY LTD. 138 ITR 783 (CAL.) (HC) FOR THE PURPOSE OF LAND BEING AGRICULTURAL LAND, AC TUAL AGRICULTURAL OPERATIONS OR CULTIVATION OR TILLING OF THE LAND IS NOT NECESSARY. WHAT IS TO BE SEEN IS WHETHER SUCH LAND IS CAPABLE OF AGRICULT URAL OPERATIONS BEING CARRIED ON. HINDUSTAN INDUSTRIAL RESOURCES LTD. VS. ACIT (2009) 335 ITR 77 (DEL.) (HC) TRIBUNAL CLEARLY HELD THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AT THE POINT OF TIME WHEN THE ASSESSEE PURCHASED IT AND TH E DOCUMENT OF AWARD MADE BY THE DISTRICT COLLECTOR (LAND ACQUISITION) H AS ESTABLISHED BEYONG DOUBT THAT THE LAND WAS AGRICULTURAL LAND. THUS, I T IS APPARENT THAT THE NATURE AND CHARACTER OF LAND DID NOT CHANGE IN THE TRANSITIONAL PERIOD. FACT THAT THE ASSESSEE INTENDED TO USE THE LAND FOR INDUSTRIAL PURPOSES DID NOT IN ANY WAY ALTER THE NATURE AND CHARACTER OF TH E LAND. ALSO, THE FAT 5 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. THAT THE ASSESSEE DID NOT CARRY OUT ANY AGRICULTURA L OPERATIONS DID NOT RESULT IN CONVERSION OF THE SAID LAND INTO INDUSTRI AL LAND. IN VIEW OF THE AFORESAID FINDINGS, TRIBUNAL OUGHT NOT TO HAVE GONE INTO THE QUESTION OF INTENTION OF THE ASSESSEE OR THE INTENTION OF THE L AND ACQUIRING AUTHORITY. THUS, TRIBUNALS FINDING THAT THE LAND WAS NOT AGRI CULTURAL LAND BEING CONTRARY TO ITS OWN RECORD IS PERVERSE. THEREFORE, THE LAND IN QUESTION WAS AGRICULTURAL LAND AND NO CAPITAL GAINS COULD BE CHARGED ON ACQUISITION THEREOF. CIT VS. SMT. DEBBI ALEMAO (2010) 331 ITR 59 (BOM.)( HC) ADMITTEDLY, THE LAND WAS SHOWN IN THE REVENUE RECOR DS AS AGRICULTURAL LAND AND NO PERMISSION WAS EVERY OBTAINED FOR NON-AGRICU LTURAL USE BY THE ASSESSEE. PERMISSION FOR NON-AGRICULTURAL USE WAS OBTAINED FOR THE FIRST TIME BY THE PURCHASER AFTER IT PURCHASED THE LAND. AS REGARDS THE CONTENTION OF THE REVENUE THAT NO AGRICULTURAL INCO ME WAS SHOWN FORM THIS LAND, IT WAS EXPLAINED BY THE ASSESSEE THAT TH E AGRICULTURAL INCOME DERIVED BY SALE OF COCONUT GROWN ON THE LAND WAS JU ST ENOUGH TO MAINTAIN THE LAND AND THERE WAS NO ACTUAL SURPLUS. HENCE, N O AGRICULTURAL INCOME WAS SHOWN FROM THIS LAND. IF AN AGRICULTURAL OPERA TION DOES NOT RESULT IN GENERATION OF SURPLUS THAT CANNOT BE A GROUND TO SA Y THAT THE LAND WAS NOT USED FOR AGRICULTURAL PURPOSE. THUS, THE FINDING R ECORDED BY THE TWO AUTHORITIES BELOW THAT THE SAID LAND WAS USED FOR T HE PURPOSE OF AGRICULTURE IS BASED ON APPRECIATION OF EVIDENCE AN D APPLICATION OF CORRECT PRINCIPLES OF LAW. MRS. SAKUNTHALA VEDACHALAM VS. ACIT (2015) 369 ITR 558/114 DTR 241 (MAD.) (HC) ONCE THE TRIBUNAL HAS ACCEPTED THAT THE CLASSIFICAT ION OF LANDS AS PER THE REVENUE RECORDS ARE AGRICULTURAL LANDS, WHICH ARE E VIDENCED BY THE ADANGAL AND THE LETTER OF TAHSILDAR AND SATISFIED O THER CONDITION OF SEC. 6 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. 2(14), THE TRIBUNAL HAS MISDIRECTED ITSELF IN CONFI RMING THE ADDITION OF LONG TERM CAPITAL GAIN TAX. THUS, TRIBUNAL WAS THEREFOR E NOT RIGHT IN HOLDING THAT THE LANDS IN QUESTION WERE NOT AGRICULTURAL LA NDS FOR THE PURPOSE OF APPLICATION U/S 2(14)(III)(B). SHANKAR DALAL & ORS. VS. CIT (2017) 150 DTR 197 (BO M.)(HC) IN THIS CASE IT WAS HELD THAT MERELY BECAUSE ASSESS EE COULD NOT USE AND UTILIZE THE LAND FULLY BY EMPLOYING LABOURS AND OR WERE UNABLE TO KEEP THE CROP STATEMENTS SHOULD HAVE BEEN THE CRITERIA TO DE CIDE WHETHER LAND IS AGRICULTURAL LAND OR NOT. THE RELEVANT PARA 15 & 1 6 OF THIS ORDER IS REPRODUCED AS UNDER:- 15. THIS COURT FURTHER REQUIRES TO CONSIDER THAT A PERSON WHO WANTS TO USE SUCH AGRICULTURAL LAND FOR ANY NON AGRICULTURAL PURPOSE, REQUIRE TO SUBMIT AND APPLICATION TO THE CONCERNED AUTHORITY, WHICH IS SUBJECT TO THE ORDER/DECISION AND /OR PERMISSION IF SANCTIONED, SU CH AGRICULTURAL LAND CAN BE USED AND CONVERTED INTO AN/OR USABLE FOR NON-AGR ICULTURAL PURPOSE AND NON OTHERWISE. BY ANY ACT OR INACTION OF UNAUTHORI ZED USE OF SUCH AGRICULTURAL LAND TO NON-AGRICULTURAL PURPOSE, IN N O WAY, LEGALLY CONVERTS SUCH AGRICULTURAL LAND TO NON-AGRICULTURAL LAND. I T IS ONLY SUBJECTION TO PENALTY AND /OR CHARGES FOR SUCH USE OF AGRICULTURA L LAND TO NON- AGRICULTURAL PURPOSE. ADMITTEDLY, THERE IS NOTHING ON RECORD TO SHOW THAT SUCH APPLICATION WAS EVER FILED AT ANY POINT OF TIM E PRIOR TO THE DATE OF ITS TRANSFER AND /OR EVER THEREAFTER AT LEAST BY THE AS SESSE OR BY THE THIRD PARTY AFTER PURCHASE OF SUCH PROPERTY. THE OWNERS O F SUCH PROPERTY ARE ALWAYS AT LIBERTY TO COVERT AND/OR TAKE ACTION. EV EN OTHERWISE SUCH SUBSEQUENT ACTION OR INACTION, IN NO WAY IS SUFFICI ENT TO PROVE SUCH TAX LIABILITY (LONG-TERM CAPITAL GAIN) UPON THE ORIGINA L VENDOR, WHO SOLD THE PROPERTY AS THE ANCESTRAL AGRICULTURAL PROPERTY. 16. THE TAX LAW IS VERY CLEAR THAT IT REQUIRED CLE AR PROVISION AND CLER FACTS AND DEFAULTS AND/OR ACT OF SUPPRESSION OF INACCURAT E SUBMISSION OF FACTS TO AVOID TAX LIABILITY. THE CASE IN HAND, THEREFORE, REQUIRES TO BE CONSIDERED IN THE BACKGROUND OF GEOGRAPHICAL AS WELL AS PHYSIC AL CONDITIONS OF THE AGRICULTURE PROPERTY AND ITS USE AND UTILIZATION FO R THE STATED AGRICULTURE PURPOSE. THE AGRICULTURAL PURPOSE, SO DEFINED, UND ER THE CODE THEREFORE, ALWAYS REMAINS SAME ONE WHO OWNS SUCH PROPERTY AND SO ALSO THE PURCHASERS AND/OR THE THIRD PARTY. THEREFORE, MERE LY BECAUSE THE ASSESSEE COULD NOT PRODUCE AND/OR UNABLE COULD NOT USE AND UTILIZE THE LAND FULLY BY EMPLOYING LABOURERS AND/OR UNABLE TO GIVEN THE CROP STATEMENTS SHOULD NOT HAVE BEEN THE CRITERIA, SPECI FICALLY WHEN THE 7 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. ASSESSEE AND THE OWNERS OF THE LAND HAD BEEN USING THE PRODUCTS FOR THEIR PERSONAL CONSUMPTION. THE WHOLE APPROACH OF THE TR IBUNAL AND THE AO IS INCORRECT AND UNSUSTAINABLE IN LAW. 5. THE CASE LAWS RELIED BY THE CIT (A) IS DISTINGUI SHABLE AS UNDER:- CIT VS. RAJA BENOY SAHAS ROY 32 ITR 466 (SC) IN THIS CASE THE QUESTION WAS WHETHER INCOME FROM F OREST LAND DERIVED SAL AND PIYASAL TREES NOT GROWN BY, HUMAN SKILL AND LAB OUR WOULD CONSTITUTE AGRICULTURAL INCOME. ON THESE FACTS, IT WAS HELD T HAT AGRICULTURE IN ITS PRIMARY SENSE DENOTES THE CULTIVATION OF THE FIELD AND IS RESTRICTED TO CULTIVATION OF THE LAND IN THE STRICT SENSE OF THE TERM, MEANING THEREBY TILLING OF THE LAND, SOWING OF THE SEEDS, PLANTING AND SIMI LAR OPERATIONS ON THE LAND. THESE ARE BASIC OPERATIONS AND REQUIRE THE EXPENDIT URE OF HUMAN SKILL AND LABOUR UPON THE LAND ITSELF. THE ABOVE CASE IS RELATED TO SECTION 2(1) OF THE AC T WHICH DEFINES THE TERM AGRICULTURE INCOME. HOWEVER, THE PRESENT CASE IS RELATED TO SECTION 2(14) OF THE AT WHICH IS RELATED WITH THE TERM AGRICULTURE LAND. THE SUPREME COURT IN THE ABOVE CASE HAS NOT LAID DOWN ANY PRINCIPLE THAT IN CONSIDERING WHETHER A LAND IS AGRICULTURAL LAND OR NOT WHAT FACTORS ARE R EQUIRED TO BE CONSIDERED. THUS, THE PRINCIPLE LAID DOWN IN ABOVE CASE DOES NO T APPLY TO THE CASE OF THE ASSESSEE. SMT. SARIFABIBI MOHMED IBRAHIM & OTHERS VS. CIT 204 ITR 631 (SC) IN THIS CASE, THE LAND WAS SITUATED WITHIN THE MUNI CIPAL LIMITS; IT WAS SITUATED AT A DISTANCE OF ONE KILOMETER FROM THE SURAT RAILW AY STATION. THE LAND WAS NOT BEING CULTIVATED FROM THE YEAR 1965-66 UNTIL IT WAS SOLD IN 1969. THE APPELLANTS HAD ENTERED INTO AN AGREEMENT TO SALE WI TH A HOUSING CO-OPERATIVE SOCIETY TO SELL AND SAID LAND FOR AN AVOWED NON-AGR ICULTURAL PURPOSE, NAMELY, CONSTRUCTION OF HOUSES. THEY HAD APPLIED IN JUNE,1 968 AND MARCH, 1969 FOR PERMISSION TO SELL THE SAID LAND FOR NON-AGRICULTUR AL PURPOSES UNDER S. 63 OF THE BOMBAY TENANCY & AGRICULTURAL LANDS ACT AND OBT AINED THE SAME ON 22 ND APRIL, 1969. SOON AFTER OBTAINING THE SAID PERMISS ION THEY EXECUTED SALE- 8 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. DEEDS IN THE FOLLOWING MONTH, I.E. IN MAY, 1969. T HE PURCHASER SOCIETY COMMENCED CONSTRUCTION OPERATIONS WITHIN THREE DAYS OF PURCHASE. ON THESE FACTS, THE HONBLE SC HELD THAT THE AFORESAID FACTS ESTABLISH THAT THE LAND WAS NOT AN AGRICULTURAL LAND WHEN IT WAS SOLD. THE APP ELLANTS HAD O INTENTION TO BRING IT UNDER CULTIVATION AT ANY TIME AFTER 1965-6 6, CERTAINLY NOT AFTER THEY ENTERED INTO THE AGREEMENT TO SELL AND SAME TO A HO USING CO-OPERATIVE SOCIETY. THOUGH A FORMAL PERMISSION UNDER S. 65 OF THE LAND REVENUE CODE WAS NOT OBTAINED BY THE APPELLANTS, YET THEIR INTEN TION IS CLEAR FROM THE FACT OF THEIR APPLICATION FOR PERMISSION TO SELL IT FOR A N ON-AGRICULTURAL PURPOSE UNDER S. 63 OF THE BOMBAY TENANCY & AGRICULTURAL LANDS AC T. THUS, LAND WAS NOT AN AGRICULTURAL LAND AT THE TIME OF ITS SALE AND THAT THE INCOME ARISING FROM ITS SALE WAS NOT EXEMPT FROM THE CAPITAL GAINS TAX. HE NCE, THE FACTS OF THIS CASE ARE NOT AT ALL APPLICABLE TO THE CASE OF THE ASSESS EE. SMT. SUPRIYA KANWAR VS. ITO 46 TAXMANN.COM 452 (JOD H.) (TRIB.)(TM) IN THIS CASE IT WAS HELD THAT LAND SITUATED OUTSIDE MUNICIPAL LIMITS STOOD EXCLUDED FROM EXPRESSION CAPITAL ASSET AND RELATE D SALE PROCEEDS HAD TO BE TREATED AS REVENUE RECEIVED FROM AGRICULTURAL LAND. SURPLUS ARISING ON SALE OF IMPUGNED AGRICULTURAL LAND GAVE RISE TO AGRICULTURA L INCOME AND WAS NOT ASSESSABLE TO TAX. THE WORDS HIGHLIGHTED BY THE CI T(A) IS HIS ORDER IS ONLY THE ADDITIONAL FAT IN THAT CASE. THE PRINCIPLE WHA T IS HELD THAT IF AN AGRICULTURAL LAND SITUATED BEYOND 8 KMS. OF THE MUN ICIPAL LIMIT IS SOLD WITHOUT MAKING ANY CHANGES SUCH AS CONVERSION IN THE LAND R ECORD, PLOTTING OF LAND, ETC. THEN THE SAME IS NOT ASSESSABLE TO TAX. THUS , THIS CASE RATHER SUPPORTS THE CASE OF THE ASSESSEE. ITO VS. INDER SUNDERDAS SETHIYA 68 TAXMANN.COM 5 (N AGPUR) (TRIB.) IN THIS CASE, ASSESSEE PURCHASED THE LAND FROM SH. ARUN JAISWAL AND SOLD THE SAID LAND AFTER 7 MONTHS TO THAT VERY PERSON, I.E. SH. ARUN JAISWAL AT A HIGHER CONSIDERATION. SH. ARUN JAISWAL IS HIS STATEMENT S TATED THAT THERE WAS NO 9 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. CROP ON THE LAND WHEN HE TOOK POSSESSION. ACCORDIN GLY, AO HELD THAT THE ASSESSEE HAS NO INTENTION TO DO ANY AGRICULTURE ON THE LAND. THE TOTAL RETENTION PERIOD F THE SAID LAND WAS ONLY APPROXIMA TELY 7 MONTHS AND ASSESSEE HAS NOT SHOWN ANY AGRICULTURAL ACTIVITIES ON THE ABOVE SAID LANDS. THE LD. CIT(A) ON ONE HAND HELD THAT IT IS A CAPITA L ASSET AS THE LAND IS LOCATED WITHIN 8 KMS. OF MUNICIPAL LIMITS BY AERIAL DISTANCE AND THERE WERE NUMBER OF REAL ESTATE PROJECTS WHICH HAVE BEEN COME UP IN THESE AREAS. EVEN THE NEWLY DEVELOPED INTERNATIONAL CRICKET STAD IUM WAS VERY NEAR TO THE SAID LAND. BUT ON THE OTHER HAND AFTER RELYING ON THE OTHER DECISIONS OF TRIBUNAL AND HIGH COURT WHERE IT HAS BEEN SAID THAT DISTANCE IS TO BE MEASURED THROUGH APPROACH ROAD AND NOT BY STRAIGHT LINE DISTANCE HELD THAT THE LAND IN QUESTION IS BEYOND 8 KMS ON ROAD FROM T HE MUNICIPAL LIMITS OF NAGPUR AND THUS IT IS NOT A CAPITAL ASSET. ON THES E FACTS IT WAS HELD THAT VIEW OF CIT(A) ON BASIS OF CERTAIN CASE LAWS THAT LAND I N QUESTION WAS BEYOND 8 KMS ON ROAD FROM MUNICIPAL LIMIT AND THEREFORE, COU LD NOT BE CONSIDERED AS CAPITAL ASSET COULD NOT BE APPROVED. HE SHOULD HAV E ANALYZED AND SCRUTINIZED BOTH THE ASPECTS I.E. THE DISTANCE AND THE AGRICULT URAL ACTIVITY. ACCORDINGLY, THE MATTER WAS RESTORED TO THE FILE OF CIT(A) FOR D ENOVO ADJUDICATION. THUS, THIS CASE STANDS ON ENTIRELY DIFFERENT SET OF FATS AND THEREFORE, NOT APPLICABLE. ITO VS. ABOOBUCKER (2016) 141 DTR 7 (CHENNAI) (TRIB .) THE FACTS OF THIS CASE WERE THAT ASSESSEE WAS A NON -RESIDENT AND NON AN AGRICULTURIST. NO EVIDENCE OF HUMAN LABOUR IN THE SENSE OF PREPARING THE LAND, FILLING, SOWING SEEDS, PLANTING ON A REGULAR BASIS HAS BEEN PRODUCED BY THE ASSESSEE. PROPERTY IN QUESTION IS SITUATED IN FAST DEVELOPING AREA OF CHENNAI AND HAS ACCESS TO ALL MODERN AMENITIES OF L IVING. THERE IS REAL ESTATE ACTIVITY IN THE AREA WHERE THE PROPERTY IS SITUATED . ASSESSEE HAS SOLD THE PROPERTY AT EXORBITANT PRICE TO A COMPANY WHICH HAS BEEN INCORPORATED WITH THE OBJECT INTER ALIA TO DEVELOP HOUSING PROJECTS W HICH NO BON FIDE AGRICULTURISTS WOULD PAY. SINCE THE PROPERTY SOLD BY THE ASSESSEE IS IN THE MIDST OF DEVELOPMENT ACTIVITIES BEING CARRIED OUT B Y THE BUILDERS IN PROMOTING 10 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. HOUSING/INFORMATION TECHNOLOGY CORRIDORS, THE SALE PRICE OF THE PROPERTY HAS INCREASED MANIFOLD WHICH A NORMAL AGRICULTURE LAND WILL NOT FETCH. THEREFORE, THE PROPERTY SOLD BY THE ASSESSEE CANNOT BE CONSIDE RED AS AGRICULTURAL LAND. AFORESAID CIRCUMSTANCES OUTWEIGH THE CIRCUMSTANCES THAT THE LAND IS CLASSIFIED AS AGRICULTURAL LAND IN THE REVENUE RECORDS AND THE VILLAGE PANCHAYAT PRESIDENT HAS CERTIFIED THAT THE LAND IS AWAY FROM MUNICIPALITY. ABHIJIT SUBHASH GAIKWAD VS. DCIT 60 TAXMANN.COM 259 (PUNE)(TRIB.) AS PER RETURN OF INCOME, ASSESSEE COMPUTED INCOME F ROM CAPITAL GAINS AT NIL BY CLAIMING DEDUCTION U/S 54. HOWEVER, DURING COUR SE OF ASSESSMENT PROCEEDING, ASSESSEE PLEADED THAT LAND SOLD WAS AN AGRICULTURAL LAND AND HENCE OUTSIDE PURVIEW OF BEING TAXED UNDER HEAD IN COME FROM CAPITAL GAINS AS IT FELL OUTSIDE DEFINITION OF CAPITAL ASSET U/S 2(14). AO NOTED THAT SUIT LAND WAS JIRAYAT FALLOW LAND AND CROP GROWN WAS GRASS AN D THUS LAND WAS NOT AN AGRICULTURAL LAND. AS FAR AS TAXABILITY OF LAND WA S CONCERNED, USER OF LAND AT TIME OF SALE WAS RELEVANT. HE ALSO NOTED THAT LAND OF AROUND ONE ACRE HAD BEEN SOLD FOR CRORE AND NO AGRICULTURIST WOULD PURC HASE SUCH LAND FOR AGRICULTURAL PURPOSES AT THIS RATE. ACCORDINGLY, H E HELD THAT LAND IN QUESTION WAS NOT AN AGRICULTURAL LAND CIT(A) UPHELD ORDER OF AO. IT WAS HELD THAT BEFORE AO, ASSESSEE HAD FURNISHED COPY OF 7/12 EXTR ACT, ACCORDING TO WHICH LAND WAS A JIRAYAT FALLOW LAND I.E LAND BEING NOT C APABLE OF CULTIVATION. 7/12 EXTRACT FURNISHED BY ASSESSEE HAD BEEN SCANNED BY A O AND SAME REFLECTED THAT NO AGRICULTURAL ACTIVITY HAVING BEEN CARRIED O N BY ASSESSEE. ASSESSEE HAD NOT DECLARED ANY AGRICULTURAL INCOME IN ITS HAN DS NOR ANY EVIDENCE HAD BEEN PRODUCED IN ANY OF PROCEEDINGS OR EVEN BEFORE ITAT TO ESTABLISH THAT LAND IN QUESTION WAS ACTUALLY BEING USED FOR CULTIV ATION AT ANY TIME OR ANY BASIC OPERATION OR SUBSEQUENT OPERATIONS WERE CARRI ED OUT IN LAND. REPORT OF INSPECTOR WAS OBTAINED BY AO WHICH CLEARLY MENTIONE D THAT LAND WAS NOT FIT FOR CULTIVATION WHICH HAD NOT BEEN CHALLENGED BY AS SESSEE. IN ABSENCE OF FULFILLMENT OF FUNDAMENTAL FACT THAT LAND WAS USED FOR AGRICULTURE, MERELY 11 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. MENTIONING OF LAND AS AGRICULTURAL LAND IN PURCHASE DEED AND OR IN SALE DEED OR EVEN IN REVENUE RECORDS COULD NOT ESTABLISH CASE OF ASSESSEE THAT LAND SOLD BY IT WAS AN AGRICULTURAL LAND. KUNHAYSU PARAVAKKAL HOUSE VS. CIT 52 TAXMANN.COM 32 7 (KERALA) (HC) ASSESSEE CLAIMED EXEMPTION OF CAPITAL GAINS ARISING ON SALE OF LAND ON GROUND HAT SAID LAND WAS AN AGRICULTURAL LAND. IT WAS OBS ERVED THAT NONE OF THE ASSESSEE HAD DECLARED ANY AGRICULTURAL INCOME IN TH EIR RETURN. THE ASSESSES COULD NOT PROVE THE EXISTENCE OF ANY COCONUT TREES OF CASHEW PLANTS NOR COULD THEY SHOW ANY PROOF THAT THEY CARRIED ON AGRI CULTURAL ACTIVITIES IN THE LAND IN QUESTION. THE LAND IN QUESTION WAS USED FO R CONDUCTING FOOTBALL TOURNAMENT AND WAS DESCRIBED BY ASSESSEE IN THE CON VEYANCE DEED AS STADIUM LAND. IN ADDITION TO ALL THESE, THE LAND W AS LOCATED VERY NEAR TO THE KOTTAKKAL BUS STAND. IMMEDIATELY AFTER THE LAND WA S HANDED OVER TO THE PURCHASES, HE CONSTRUCTED A COMMERCIAL COMPLEX IN T HAT LAND. ON THESE FACTS, KERALA HIGH COURT HELD THAT IN THE ABSENCE O F DOCUMENTARY PROOF PRODUCED BY THE ASSESSEE, SAME WOULD NOT BE TREATED AS AGRICULTURAL LAND AND THEREFORE, CAPITAL GAIN TAX WAS TO BE LEVIABLE. THUS, IN ALL THE ABOVE CASES, ASSESSEE WAS NOT ABLE TO PRODUCE ANY EVIDENCE WHICH SHOWS THAT LAND WAS USED FOR AGRICULTURAL PUR POSE AT ANY POINT OF TIME. IN ALL THESE CASES EITHER THE REAL ESTATE ACTIVITY IN THE AREA WHERE THE PROPERTY WAS SITUATED WAS CARRIED OUT OR THE PROPERTY WAS SO LD AT EXORBITANT PRICE TO THE BUYER AND THE BUYER HAS SUBSEQUENTLY USED THE S AME FOR COMMERCIAL PURPOSE. HOWEVER, IN THE PRESENT CASE ASSESSEE HAS PRODUCED KHASRA GIRDAWRI WHISH SHOWS THAT THE LAND WAS USED FOR GRO WING CROPS LIKE BAJRA AND WHEAT IN SAMVAT YEAR 2064 & 2065. THE LAND WAS AGR ICULTURAL LAND AT THE TIME OF SALE ALSO AND WAS NOT USED FOR ANY OTHER PU RPOSE. THE ASSESSEE HAS NOT SOUGHT ANY PERMISSION TO SELL THE LAND FOR NON- AGRICULTURAL PURPOSES. THERE IS NO FINDING OF THE LOWER AUTHORITIES THAT T HE LAND WAS SOLT AT HIGHER 12 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. PRICE OR ANY REAL ESTATE ACTIVITY IS CARRIED OUT IN THE AREA WHERE THE LAND IS SITUATED. THE BUYER IS ALSO USING THE LAND FOR AGR ICULTURAL PURPOSE ONLY. THUS, THE FACTS OF THE ABOVE CASES RELIED BY CIT(A) ARE ENTIRELY DIFFERENT FROM THE PRESENT CASE AND THE FINDINGS GIVEN ON THOSE FA CTS IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. IN VIEW OF ABOVE, AO BE DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE THAT THE LAND SOLD BY THE ASSESSE IS AN AGRICULTURAL LAND AN D NOT A CAPITAL ASSET, THUS, NOT LIABLE TO CAPITAL GAIN TAX. FACTS AND SUBMISSION:- (GROUND NO. 1.1) 1. THE ASSESSEE VIDE LETTER DT. 09.03.2015 (PB 20-2 2) AS REPRODUCED AT PG 8 OF THE ASSESSMENT ORDER REQUESTED THE AO THAT IF HE IS NOT IN AGREEMENT WITH THE CLAIM OF THE ASSESSEE THAT THE A GRICULTURAL LAND SOLD BY HIM IS NOT A CAPITAL ASSET U/S 2(14) OF THE ACT, THEN HE MAY REFER THE VALUATION OF THE SAME TO THE DVO IN CASE HE INTEND TO INVOKE SECTION 50C OF THE ACT. THE AO AT PG 9 OF THE ASSE SSMENT ORDER HAS STATED THAT A REFERENCE TO THE VALUATION OFFICER HA S BEEN AS DESIRED BY THE ASSESSEE BUT AS THE TIME LEFT FOR COMPLETION OF ASSESSMENT IS SHORT, HE COMPLETED THE ASSESSMENT ON THE BASIS OF THE VAL UE ADOPTED BY THE SUB-REGISTRAR WITH THE RIDER THAT AS AN WHEN THE VA LUATION REPORT IS RECEIVED AND THE FMV DETERMINED BY THE DVO IS FOUND TO BE LESS THAN THE DLC RATE, THE EFFECT OF THE SAME SHALL BE GIVEN U/S 155 OF THE ACT. 2. IT IS SUBMITTED THAT EVEN AFTER THE ABOVE OBSERV ATION, IT APPEARS THAT THE AO HAS NOT MADE ANY REFERENCE TO THE DVO FOR DE TERMINED THE FMV OF THE AGRICULTURAL LAND SOLD BY THE ASSESSEE I N AS MUCH AS NO COMMUNICATION IS RECEIVED BY THE ASSESSEE FROM THE DVO FOR DETERMINATION OF THE FMV OF THE AGRICULTURAL LAND S OLD BY THE ASSESSEE. THE AO BE THEREFORE, DIRECTED TO OBTAIN THE VALUATI ON REPORT FROM THE 13 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. DVO AND THEREAFTER, WORK OUT THE CAPITAL GAIN TAX L IABILITY OF THE ASSESSEE. 3.2 ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIV ES OPPOSED THE SUBMISSIONS AND SUBMITTED THAT THE ASSESSEE HERSELF HAS STATED IN THE LETTER DATED 9/3/2015 BEFORE THE AO, THAT LAND IN QUESTION IS BARREN AND WAS NOT IN PHYSICAL POSSESSION OF THE ASSESSEE. UNDER THESE FACTS, THE CASE LAWS HAV E RELIED BY THE LD. COUNSEL FOR THE ASSESSEE WOULD NOT HOLD. IN REJOINDER THE LD. COUNSEL FOR THE ASSESSEE SUBMI TTED AS PER THE RECORD THE LAND IN QUESTION WAS UNDER CULTIVATION. HE DREW OUR ATTENTI ON TO THE KHASRA GIRDAWARI ENCLOSED WITH THE WRITTEN SUBMISSIONS. 3.3 WE HAVE HEARD THE RIVAL CONTENTION, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE ISSUE REQUIRES FOR CONSIDERATION IS WHETHER THE LAND IN QUESTION IS AN AGRICULTURAL LAND OR A CAPITAL ASSET, IN TERM OF SECTION 2(14) OF THE ACT. THE FA CT BEFORE AO, ASSESSEE HAS STATED THAT THE LAND BEING BARREN IS NOT DISPUTED BY THE L D. AUTHORIZED REPRESENTATIVES AND THE PHYSICAL POSSESSION OF THE LAND WAS NOT WITH TH E ASSESSEE WAS ALSO NOT DISPUTED. SO FAR THE QUESTION THAT WHETHER THE LAND FALLS WIT HIN THE MUNICIPAL LIMIT IS NOT A DISPUTE. AS THE LD. CIT(A) HAS ACCEPTED THE CONTEN TION OF THE ASSESSEE THAT IN VIEW OF THE NOTIFICATION NO. 9447 DT. 06/01/1994 AND THE DECISIONS OF THE TRIBUNAL IN THE CASE OF DR. SUBHA TRIPATHI VS. DCIT [2013] 36 CCH 275 (JPR. TRIB). THE LD. CIT(A) TREATED THE LAND IN QUESTION AS CAPITAL ASSE T ON THE BASIS THAT LAND IN QUESTION WAS BARREN AND POSSESSION OF THE LAND WAS NOT OF TH E ASSESSEE. IN SUPPORT OF THIS, LD. CIT(A) HAS PLACED RELIANCE ON THE DECISION OF T HE TRIBUNAL RENDERED IN THE CASE 14 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. OF ABHIJIT SUBHASH GAIKWARD VS. DCIT (2015) 60 TAXMANN .COM 259 (PUNE) (TRIB.) NOW, THE ISSUE IS WHETHER ANY LAND WHICH IS NOT UNDER CULTIVATION FOR THE PURPOSE OF AGRICULTURE CAN STILL BE TREATED AS AGRI CULTURAL LAND AND TRANSFER OF SUCH LAND WOULD NOT ATTRACT THE PROVISION OF CAPITAL GAI N. 3.4 WHILE DICTATING THE ORDER, IT WAS NOTICED THAT THE JUDGMENTS OF THE HONBLE SUPRME COURT RENDERED IN THE CASES OF COMMISSIONER OF INCOME-TAX VS. GEMINI PICTURES CIRCUIT (P) LTD. [1996] 85 TAXMAN 594 (SC ), COMMISSIONER OF WEALTH TAX VS. OFFICER- IN-CHARGE PAIGAH AND THE JU DGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SARIFABIBI MOHAMED IBR AHIM AND OTHERS VS. CIT [1993] 204 ITR 631 WERE NOT CONSIDERED BY THE AUTHORITIES BELOW. THE HONBLE SUPREME COURT IN THE CASE OF SARIFABIBI MOH AMED IBRAHIM VS. CIT (SUPRA) HAS REITERATED THE GUIDELINES AS WERE SET IN THE JU DGMENT BY THE CONSTITUTIONAL BENCH OF THE HONBLE APEX COURT IN THE CASE OF CWT VS. OFFICER- IN-CHARGE (COURT OF WARDS) PAIGAH (SUPRA). 3.5 AFTER CONSIDERING THE TOTALITY OF THE FACTS AND THE RIVAL CONTENTIONS, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE TO BE RESTORED T O THE AO FOR VERIFYING THE CLAIM OF THE ASSESSEE THAT LAND IN QUESTION WAS AN AGRICULTU RAL LAND. IN THE LIGHT OF THE ABOVE CITED JUDGMENTS OF THE HONBLE SUPREME COURT. THER EFORE, THE ASSESSMENT MADE ON THE BASIS THAT THE LAND IN QUESTION WAS NOT AN AGRI CULTURAL LAND IS SET ASIDE FOR A DECISION AFRESH BY THE AO. THE ASSESSING OFFICER W OULD MAKE ENQUIRY FORM THE REVENUE OFFICIALS AND FROM THE CONCERNED GRAM PANCH AYAT TO VERIFY WHETHER THE ASSESSEE HAD CARRIED OUT AGRICULTURAL ACTIVITIES ON THE LAND IN QUESTION THREE YEARS PRIOR TO SALE OF THE LAND. IN CASE, THE AO FINDS T HAT THE LAND IS NOT AN AGRICULTURAL 15 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. LAND, IN VIEW OF THE JUDGMENTS OF THE HONBLE SUPRE ME COURT AS CITED HERE IN BEFORE, THE AO, WOULD DECIDE THE VALUE OF PROPERTY AFTER OB TAINING A REPORT FROM THE CONCERNED DVO. GROUND NO. 1 IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED HEREIN BEFORE. 4. GROUND NO. 2 , IS AGAINST CONFIRMATION OF ADDITION OF RS. 20,44, 682/- ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE OVER AND ABOV E HER SHARE IN THE SALE PROCEEDS. 4.1 LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. 4.2 ON THE CONTRARY, LD. D/R SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW. LD. COUNSEL FOR THE ASSESSEE IN PARA 4 OF WRITTEN SUBMI SSION HAS SUBMITTED AS UNDER:- 4. IT IS SUBMITTED THAT IN COURSE OF ASSESSMENT PROCEE DINGS, AO HAS NOT RAISED ANY QUERY WITH REFERENCE TO SALE OF AGRICULT URAL LAND AT BARSHINGHPUR. THIS IS EVIDENT FROM THE COPY OF THE FINAL SHOW CAU SE NOTICE DT. 02.03.2015 (PB 17-18) WHERE NO QUERY WAS RAISED IN THIS REGARD . THEREFORE, THIS ISSUE WAS EXPLAINED BEFORE THE CIT(A). EVEN IN THE APPEL LATE PROCEEDINGS, THE LD. CIT(A) HAS NOT RAISED ANY ISSUE ON THE EXPLANATION GIVEN BY THE ASSESSEE. THE ENTIRE SALE PROCEEDS OF RS. 2.90 CRORES EXCEPT FOR RS. 5,65,000/- WAS RECEIVED BY CHEQUE. THEREFORE, IN THE INTEREST OF NATURAL JUSTICE, THE MATTER BE SET ASIDE TO THE AO TO VERIFY AS TO THE ACTUAL A MOUNT WHICH HAS BEEN RECEIVED BY THE ASSESSEE FROM SALE OF THIS AGRICULT URAL LAND AND DECIDE THE SAME ACCORDINGLY. 4.3 AFTER CONSIDERING THE TOTALITY OF THE FACTS, WE RESTORE THIS GROUND TO THE FILE OF THE AO FOR DECIDING IT AFRESH. THIS GROUND OF ASSE SSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 16 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR. 5. GROUND NO. 3 , IS GENERAL IN NATURE AND NEEDS NO SEPARATE ADJUDI CATION. 6. GROUND NO. 4 , IS PRAYER FOR AWARDING IN COST, UNDER THE FACTS O F THE PRESENT CASE, WE DO NOT SEE ANY REWARD COST TO THE ASSESSEE . THIS GROUND OF THE ASSESSEES APPEAL IS DISMISS. 7. IN THE RESULT APPEAL OF THE ASSESSEE IN ITA NO. 309/JP/2017 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY, THE 31 ST DAY OF JULY 2017. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 31/07/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. RAJNI KHANDELWAL 90, RAMNATH PURI, KALWAD ROAD, JAIPUR. 2. THE RESPONDENT- THE ITO, WARD-3(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 309/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 17 ITA NO. 309/JP/2017. SMT. RAJNI KHANDELWAL, JAIPUR.