SHRI LILO RAMCHANDANI, Jaipur V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4, Jaipur

ITA 698/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4762 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 14-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Difference of opinion; Benefit of exemption; Change of opinion; Reassessment proceedings; TDS; Set aside; Capital Gains
• Section: 54B; 143(1); 64; 147; 131; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H B JAIPUR BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM ITA NO. 698/JP/2019 ASSESSMENT YEAR :2010-11 SH. LILO RAMCHANDANI 3-NA-43, JAWAHAR NAGAR, JAIPUR CUKE VS. DCIT, CIRCLE-4, JAIPUR PAN/GIR NO.: AAJPR3621B APPELLANT RESPONDENT ASSESSEE BY : SHRI P. C. PARWAL (CA) REVENUE BY : SMT. RUNI PAL (JCIT) DATE OF HEARING : 30/09/2019 DATE OF PRONOUNCEMENT: 04/11/2019 ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 01.03.2019 WHEREIN THE ASSESSEE HAS TAK EN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF THE ORDER PASSED BY AO U/S 147 OF IT AC T, 1961. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DENYING THE EXEMPTION U/S 10(37) OF THE IT ACT ON THE GROUND TH AT LAND WAS NOT USED FOR AGRICULTURAL PURPOSE, THEREBY, CONFIRMING THE A DDITION OF RS. 69,54,000/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON COMPULSORY ACQUISITION OF AGRICULTURAL LAND. 2. FIRSTLY, REGARDING GROUND NO. 1, THE LD AR SUBMI TTED THAT THE ASSESSEE PURCHASED AGRICULTURAL LAND AT MAHAPURA ON 22-12-20 03 FOR RS.10,12,400/-. ON PART OF THE LAND, HE CARRIED OUT CONSTRUCTION BY IN CURRING EXPENDITURE OF ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 2 RS.3,47,651/- IN F.Y. 03-04 AND 04-05. THE SAID AGR ICULTURAL LAND ALONG WITH CONSTRUCTION WAS ACQUIRED BY JAIPUR DEVELOPMENT AUT HORITY UNDER THE LAND ACQUISITION ACT 1894. THE DATE WISE EVENT RELATED T O THE ACQUISITION OF THE LAND AND BUILDING AND THE PAYMENT OF COMPENSATION IS TAB ULATED AS UNDER:- DATE PARTICULARS 27-10-2005 JAIPUR DEVELOPMENT AUTHORITY ISSUED NOTIFICATION U/ S 4(1) OF THE LAND ACQUISITION ACT 1894 FOR ACQUIRING THE LAND AN D BUILDING. 20-12-2005 SURVEY U/S 4(2) OF THE LAND ACQUISITION ACT WAS CAR RIED OUT. 29-04-2006 08-05-2006 DECLARATION U/S 6 OF THE LAND ACQUISITION ACT WAS M ADE ON 29- 04-2006 STATING THE PURPOSE OF ACQUISITION. THIS DE CLARATION WAS PUBLISHED IN OFFICIAL GAZETTE ON 8-05-2006. 19-02-2007 NOTICE U/S 9(3) OF THE LAND ACQUISITION ACT WAS ISS UED ON 19.02.2007 CALLING THE DOCUMENTS OF THE OWNERSHIP AND PRESENT THE CLAIMS WITH REGARD TO THE LAND IDENTIFIED FOR A CQUISITION AND ALSO TO FILE THE OBJECTION AS TO THE MEASUREMENTS B EFORE THE LAND ACQUISITION OFFICER. THE DATE OF HEARING WAS F IXED ON 07-03- 07. IN THIS NOTICE, AN OPTION WAS GIVEN EITHER TO C LAIM CASH COMPENSATION OR FOR ALLOTMENT OF 25% OF THE LAND IN DEVELOPED AREA AS PER THE SCHEME. 29-04-2008 COMPENSATION OF RS.9,50,734/- FOR ACQUISITION OF TH E BUILDING WAS RECEIVED AFTER DEDUCTION OF TDS OF RS.97,926/-. 12-05-2008 IN RESPECT OF LAND, JDA ISSUED RESERVATION LETTER O N 12-05-2008 STATING TO ALLOT THE DEVELOPED LAND TO THE EXTENT O F 25% OF THE LAND OF THE ASSESSEE ACQUIRED BY IT. THIS 25% WILL COMPRISE OF 20% RESIDENTIAL LAND AND 5% COMMERCIAL LAND. THIS L AND WAS TO BE ALLOTTED WITHIN 60 DAYS. HOWEVER, NO SUCH ALLOTM ENT WAS GIVEN. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 3 20-11-2009 ASSESSEE FINALLY GOT ALLOTMENT LETTER ON 20-11-2009 WHEREBY RESIDENTIAL LAND OF 2000 SQ. METER AND COMMERCIAL L AND OF 500 SQ. METER WAS ALLOTTED AND FOR BALANCE AREA CASH CO MPENSATION OF RS.84000/- WAS GIVEN. 3. IT WAS FURTHER SUBMITTED THAT IN THE RETURN FIL ED FOR AY 2009-10, NO CAPITAL GAIN WAS DECLARED WITH REFERENCE TO ALLOTME NT OF RESIDENTIAL/ COMMERCIAL LAND ON ACQUISITION OF AGRICULTURAL LAND AS THERE W AS NO TRANSFER. IN AY 2010-11 ALSO, NO CAPITAL GAIN WAS DECLARED AS GAIN WAS EXEM PT U/S 10(37). HOWEVER, THE AO IN AY 2009-10 WORKED OUT THE CAPITAL GAIN ON SUC H ACQUISITION AT RS73,62,800/. THE MATTER TRAVELLED TO THE TRIBUNAL WHERE THE ASSESSEE TOOK TWO GROUNDS, ONE THAT LD. CIT(A) HAS ERRED IN CONFI RMING THE ACTION OF AO THAT THE APPELLANT DID NOT CARRY OUT ANY AGRICULTURAL OP ERATION ON THE SAID LAND AND THEREBY NOT ENTITLED FOR EXEMPTION U/S 10(37) AND S ECOND THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF AO IN TAXING THE CAPITAL GAIN IN AY 2009- 10 INSTEAD OF AY 2010-11. THE TRIBUNAL ON THESE TWO GROUNDS VIDE ITS ORDER DT. 14.12.2015 SET ASIDE THE ISSUE TO THE AO BY GIVING FOLLOWING FINDINGS AS UNDER: 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE OF WHET HER THE ASSESSEE WAS CARRYING OUT THE AGRICULTURAL ACTIVITY IN THE TWO Y EAR PRECEDING THE DATE OF TRANSFER IS DISPUTED AND WHATEVER EVIDENCE SUBMITTE D BY THE ASSESSEE REQUIRED TO BE EXAMINED BY THE AO. IT IS DIFFICULT FOR US TO DECIDE THE ISSUE IN ABSENCE OF ANY VERIFICATION, WHICH CAN BE DONE ONLY BY THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THIS IS SUE TO THE AO TO EXAMINE THIS ISSUE AFRESH AND CONSIDER THE EVIDENCE FURNISHED BY THE ASSESSEE AND MAKE INVESTIGATION ON THIS ISSUE AS HE DEEMED FIT. THE GROUND NO. 1 OF THE APPEAL IS SET ASIDE TO THE ASSE SSING OFFICER. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 4 6.1 THE YEAR OF TAXABILITY IS ALSO DISPUTED BETWEEN THE REVENUE OR THE ASSESSEE. THE RESERVATION LETTER ISSUED BY THE JDA ON 12/05/2008, WHICH SIMPLY A LETTER AS PER THE POLICY OF THE JDA THAT 2 0% OF RESIDENTIAL LAND ACQUIRED AND 5% OF COMMERCIAL LAND WOULD BE AWARDED TO THE ASSESSEE AS A COMPENSATION AGAINST THE ACQUISITION OF THE LA ND AND RESIDENTIAL AS WELL AS COMMERCIAL PLOT WAS ALLOTTED VIDE LETTER DA TE 20-11-2009 AGAINST ACQUISITION OF THE LAND. THE REMAINING AMOUNT ON AC COUNT OF THE LESSER AREA UNDER BOTH THE HEADS WERE MADE AVAILABLE BY TH E JDA I.E. 20 SQ. METER IN RESIDENTIAL AND 5 SQ. METER AS COMMERCIAL FOR WHICH NECESSARY COMPENSATION, CALCULATED ON THE BASIS OF THE RESERV ED PRICE FOR BOTH THE LANDS AT RS.84,000/- AND AFTER ADJUSTING SOME PAYME NT OF JDA AND REMAINING AMOUNT OF RS.69,555/- WAS SHOWN AS PAYABL E TO THE ASSESSEE. IT IS ALREADY HELD BY THE VARIOUS COURTS THAT THE L AND AND BUILDING ACQUIRED UNDER COMPULSORY ACQUISITION ARE TWO DIFFE RENT ASSETS. THE COMPENSATION FOR THE LAND WAS RECEIVED BY THE ASSES SEE ON 20-11-2009 WHICH FALLS IN A.Y. 2010-11. THE CASE LAW REFERRED BY THE ASSESSEE ARE SQUARELY APPLICABLE, THEREFORE, THE ASSESSING OFFIC ER IS DIRECTED TO ASSESS THE CAPITAL GAIN IN A.Y.2010-11 AND NOT IN A.Y. 200 9-10. ACCORDINGLY ON THIS ISSUE I.E. GROUND NO.1.1 OF THE ASSESSEES APP EAL IS ALLOWED. 4. IT WAS FURTHER SUBMITTED THAT AFTER THE ORDER O F THE TRIBUNAL, THE AO COMPLETED THE SET ASIDE ASSESSMENT PROCEEDINGS FOR AY 2009-10 VIDE ORDER DT. 27.12.2016 WHERE NO DISCUSSION WAS MADE ON THE ISSU E WHETHER THE ASSESSEE WAS CARRYING OUT AGRICULTURAL ACTIVITY IN THE TWO Y EARS PRECEDING THE DATE OF TRANSFER AND AT THE SAME TIME, NO ADDITION OF RS.73 ,62,800/- AS MADE IN THE ORIGINAL ASSESSMENT WAS MADE IN THE SET ASIDE ASSES SMENT PROCEEDINGS. 5. THEREAFTER, THE AO ISSUED NOTICE U/S 148 DATED 1 7.02.2017 FOR AY 2010- 11 AFTER RECORDING THE FOLLOWING REASONS:- ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 5 THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.07.2 010 AT RS.2,05,730/-. THE CASE WAS PROCESSED/ASSESSED U/S 143(1) AT THE R ETURNED INCOME ON 26.03.2011. THE AO OBSERVED THAT THE ASSESSEE HAD RECEIVED THE COMPENSATION FROM JAIPUR DEVELOPMENT AUTHORITY (JDA) ON ACCOUNT OF AC QUISITION OF LAND AT MAHAPURA ACQUIRED BY THEM FOR SEZ. THIS COMPENSATIO N WAS IN THE FORM OF ALLOTMENT OF RESIDENTIAL PLOT & COMMERCIAL PLOT. THE AO HAS OBSERVED THAT THE ASSESSEE HAD NOT DISCLOSED THESE TRANSACTI ONS IN HIS RETURN OF INCOME FILED ON 27.11.2009 FOR A.Y. 2009-10. NEITHE R THE ASSESSEE HAD DISCLOSED IT IN CAPITAL GAIN HEAD OR NOT UNDER EXEM PT INCOME. THEREFORE THE TAX LIABILITY HAD BEEN DECIDED IN THE A.Y. 2009 -10 BY THE ASSESSING OFFICER. THE CASE HAS TRAVELLED TO ITAT. FURTHER, H ONBLE ITAT HAS DIRECTED TO ASSESSING OFFICER TO ASSESS THE CAPITAL GAIN IN A.Y. 2010-11 AS THE COMPENSATION FOR LAND WAS RECEIVED BY THE ASSES SEE ON 20.11.2009, WHICH FALLS IN F.Y. 2010-11. ON PERUSAL OF RECORDS ALSO IT IS GATHERED THAT COMP ENSATION OF LAND WAS RECEIVED ON 20.11.2009, WHICH FALLS IN A.Y. AND THE REFORE THE LIABILITY OF CAPITAL GAIN OVER THE ASSESSEE ARISES IN A.Y. 2010- 11 INSTEAD OF 2009- 10. 6. THE ASSESSEE FILED THE OBJECTION TO THE ISSUE OF NOTICE U/S 148. THE AO, HOWEVER, REJECTED THE SAME AND COMPLETED THE ASSESS MENT U/S 147 VIDE ORDER DT. 26.12.2017. ON APPEAL, THE LD. CIT(A) UPHELD TH E REOPENING OF ASSESSMENT BY STATING THAT SINCE THE TRIBUNAL HAS DIRECTED THE AO TO ASSESS THE CAPITAL GAIN IN AY 2010-11, THEREFORE, ISSUE OF NOTICE U/S 148 I S VALID AND IN ACCORDANCE WITH THE PROVISIONS OF LAW. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 6 7. IT WAS FURTHER SUBMITTED THAT FROM THE FACTS STA TED ABOVE IT CAN BE NOTED THAT THE AO WHILE REOPENING THE ASSESSMENT BY REFER RING TO THE DIRECTION OF HONBLE TRIBUNAL HAS NOT BEEN CONSIDERED THE SAME I N TOTALITY. A COMBINED READING OF PARA 6 & 6.1 OF THE ORDER OF TRIBUNAL CL EARLY SHOWS THAT IT SET ASIDE THE ISSUE REGARDING CLAIM OF EXEMPTION U/S 10(37) I N AY 2009-10 TO THE AO WITH TWO DIRECTIONS. FIRST IS THAT THE AO IS TO DEC IDE AFRESH WHETHER THE ASSESSEE HAS CARRIED OUT AGRICULTURAL ACTIVITY IN T HE TWO YEARS IMMEDIATELY PRECEDING THE DATE ON TRANSFER ON THE LAND WHICH HA S BEEN COMPULSORILY ACQUIRED UNDER THE LAND ACQUISITION ACT AND SECOND IS THAT IN CASE THE FIRST ISSUE IS DECIDED AGAINST THE ASSESSEE, THE CAPITAL GAIN CAN BE ASSESSED IN AY 2010-11 AND NOT IN AY 2009-10. THEREFORE, WITHOUT D ECIDING THE ISSUE OF CLAIM OF EXEMPTION U/S 10(37) IN AY 2009-10, REOPENING OF THE ASSESSMENT FOR AY 2010-11 IS ONLY A CHANGE OF OPINION AND NOT FOLLOWI NG THE DIRECTION OF TRIBUNAL ITAT. HENCE, THE NOTICE ISSUED U/S 148 IS ILLEGAL & BAD IN LAW. 8. IT WAS FURTHER SUBMITTED THAT THE AO IN THE REAS ONS FOR REOPENING HAS MENTIONED PART OF THE DIRECTION OF THE TRIBUNAL. IN FACT NOTICE U/S 148 CAN BE ISSUED ONLY WHEN THE AO IS HAVING REASON TO BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. IN THE PRESENT CASE AS EVIDENT FROM THE REASONS AND OTHER FACTS, THE ASSESSMENT WAS REOPENED ONLY TO COVER UP THE LA PSE ON PART OF THE AO IN NOT DECIDING THE ISSUE OF EXEMPTION U/S 10(37) IN T HE SET ASIDE ASSESSMENT OF AY 2009-10. THEREFORE, UNLESS A FINDING IS GIVEN IN AY 2009-10 AS TO THE ALLOWABILITY OF CLAIM OF EXEMPTION U/S 10(37), THE REOPENING OF ASSESSMENT FOR AY 2010-11 IS ILLEGAL & BAD IN LAW. IN VIEW OF ABOV E, ISSUE OF NOTICE U/S 148 AND CONSEQUENTIAL ORDER PASSED U/S 147 IS ILLEGAL A ND BAD IS IN LAW AND THE SAME BE QUASHED. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 7 9. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED THE MATTER. IT WAS SUBMITTED THAT THE DIRECTIONS OF THE TRIBUNAL WHILE DISPOSING OFF THE ASSESSEES APPEAL FOR AY 2009-10 WAS VERY CLEAR THAT THE COMPE NSATION WAS RECEIVED BY THE ASSESSEE ON 20.11.2009 AND THE CAPITAL GAINS WE RE DIRECTED TO BE ASSESSED IN AY 2010-11. IT WAS ACCORDINGLY SUBMITTED THAT W HERE THE ASSESSEE HAS FAILED TO OFFERED THE CAPITAL GAINS IN AY 2010-11 A ND BASIS THE DIRECTIONS GIVEN BY THE TRIBUNAL, THE AO HAS REOPENED THE CASE OF TH E ASSESSEE AND HAS ISSUED NOTICE U/S 148, THERE IS NO ILLEGALITY IN THE SAID ACTION OF THE AO AND WHICH HAS BEEN RIGHTLY CONFIRMED BY THE LD CIT(A) AND THE SAM E SHOULD BE UPHELD. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS ARE THAT THE ASSES SEE GOT ALLOTMENT LETTER ISSUED BY JDA ON 20-11-2009 WHEREBY RESIDENTIAL LAN D OF 2000 SQ. METER AND COMMERCIAL LAND OF 500 SQ. METER WAS ALLOTTED AND F OR BALANCE AREA, CASH COMPENSATION OF RS.84000/- WAS GIVEN TO THE ASSESSE E. THE COMPENSATION FOR ACQUISITION OF LAND WAS THEREFORE RECEIVED BY WAY O F ALLOTMENT OF ALTERNATE RESIDENTIAL AND COMMERCIAL LAND AS WELL AS CASH IN THE FINANCIAL YEAR 2009-10 RELEVANT TO AY 2010-11. ADMITTEDLY, THE ASSESSEE I N HIS RETURN OF INCOME FILED FOR AY 2010-11 HAS NOT OFFERED SUCH CAPITAL GAINS T O TAX. THE POSITION OF THE ASSESSEE IS THAT SUCH CAPITAL GAINS WERE EXEMPT U/S 10(37) AND HENCE, NOT OFFERED TO TAX. HOWEVER, THE FACT OF THE MATTER RE MAINS THAT THERE IS APPARENTLY NO SUCH CLAIM OF SEEKING EXEMPTION U/S 10(37) AS WE LL MADE IN THE RETURN OF INCOME FILED FOR AY 2010-11. THE RETURN OF INCOME WAS PROCESSED U/S 143(1) AND THEREAFTER, TAKING INTO CONSIDERATION THE DIREC TIONS OF THE COORDINATE BENCH WHERE IT WAS DIRECTED TO ASSESS THE CAPITAL GAINS I N AY 2010-11 AND NOT IN AY 2009-10, THE AO HAS ISSUED THE NOTICE U/S 148 OF TH E ACT. IT IS THEREFORE A CASE WHERE THERE WAS NO DISCLOSURE OF SUCH TRANSACTION I N THE RETURN OF INCOME AND SECONDLY, THE RETURN OF INCOME SO FILED WAS PROCESS ED U/S 143(1) AND NO REGULAR ASSESSMENT WAS MADE, HENCE, THERE IS NO QUE STION OF FORMING OF AN ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 8 OPINION BY THE AO PRIOR TO ISSUANCE OF NOTICE U/S 1 48 OF THE ACT. THE CONTENTION OF THE LD AR REGARDING CHANGE OF OPINION THEREFORE CANNOT BE ACCEPTED. THE SECOND CONTENTION OF THE LD AR THAT ONLY WHERE THE AO HAS REASON TO BELIEF THAT INCOME HAS ESCAPED ASSESSMENT , NOTICE U/S 148 CAN BE ISSUED. ANOTHER RELATED CONTENTION RAISED BY THE L D AR THAT ONLY WHERE THE AO DECIDED THE ISSUE OF EXEMPTION U/S 10(37), IT CAN B E SAID TO BE A CASE OF ESCAPEMENT OF INCOME. AS WE HAVE STATED ABOVE, THE ASSESSEE HAS RECEIVED THE COMPENSATION ON COMPULSORY ACQUISITION OF LAND DURING THE YEAR AND IN ABSENCE OF DISCLOSURE OF SUCH TRANSACTION IN THE RE TURN OF INCOME OR ANY CLAIM OF EXEMPTION U/S 10(37) IN THE RETURN OF INCOME, IT IS A CLEAR CASE WHERE THE CAPITAL GAINS ON SUCH COMPULSORY ACQUISITION OF LAN D IN RESPECT OF WHICH THE COMPENSATION HAS BEEN RECEIVED DURING THE YEAR HAS ESCAPED ASSESSMENT. THE MATTER RELATING TO ASSESSEES ELIGIBILITY FOR EXEMP TION U/S 10(37) IS A MATTER OF DETAILED EXAMINATION AND SO LONG AS PRIMA FACIE, TH E AO HAS FORMED AN OPINION THAT THE INCOME RECEIVED DURING THE YEAR HAS ESCAPE D ASSESSMENT AND SUCH FORMATION OF BELIEF IS BASED ON TANGIBLE AND UNDISP UTED FACTS, THERE IS NO INFIRMITY IN THE ACTION OF THE AO IN ACQUIRING JURI SDICTION U/S 147 OF THE ACT. FURTHER, IN THIS CASE, IT IS INTERESTING TO NOTE TH AT IN HIS APPEAL FOR AY 2009-10, THE ASSESSEE HAS CHALLENGED THE YEAR OF TAXABILITY OF THE COMPENSATION AND HAS CONTENDED THAT THE SAME FALLS IN AY 2010-11 AND AGA IN IN AY 2010-11, THE ASSESSEE IS CHALLENGING THE TAXABILITY OF THE COMPE NSATION SO RECEIVED INSPITE OF THE SPECIFIC DIRECTIONS OF THE COORDINATE BENCH WHE REIN IT WAS SPECIFICALLY DIRECTED TO ASSESS THE CAPITAL GAINS IN AY 2010-11 AND NOT IN AY 2009-10. IN THE RESULT, WE DONOT SEE ANY INFIRMITY IN THE ACTIO N OF THE AO IN ACQUIRING THE JURISDICTION BY ISSUANCE OF NOTICE U/S 148 AND THE GROUND SO TAKEN BY THE ASSESSEE IS DISMISSED. 11. REGARDING GROUND NO. 2, THE LD AR SUBMITTED TH AT IN COURSE OF THE REASSESSMENT PROCEEDINGS THE AO VIDE ORDER SHEET EN TRY DT. 18.12.2017 ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 9 REQUIRED THE ASSESSE TO FURNISH EVIDENCE TO PROVE T HAT THE LAND WAS USED FOR AGRICULTURAL PURPOSE PRECEDING TWO YEARS BEFORE IT WAS ACQUIRED BY THE REVENUE AUTHORITIES. IN RESPONSE TO SAME, ASSESSEE FILED TH E REPLY DT. 20.12.2017 REPRODUCED IN THE ASSESSMENT ORDER. THE AO, HOWEVER , HELD THAT THE EXPLANATION AND THE EVIDENCES FURNISHED BY THE ASSE SSEE DO NOT PROVE THAT THE LAND WAS USED FOR AGRICULTURAL ACTIVITY DURING THE TWO YEAR PRECEDING THE DATE OF TRANSFER FOR WHICH HE REFERRED TO THE REPLY OF SUB- TEHSILDAR, BAGRU DT. 18.12.2017 WHERE HE STATED THAT IN SAMVAT YEAR 2064 TO 2065 PERTAINING TO THE PERIOD 2007-08 & 2008-09, NO AGRICULTURAL ACTIVITY WAS CARRIED OUT. ACCORDINGLY, AO WORKED OUT THE LONG TERM CAPITAL GAIN ON COMPULS ORY ACQUISITION OF THE AGRICULTURAL LAND AT RS.69,54,000/- AND TAXED THE S AME WITHOUT ALLOWING EXEMPTION U/S 10(37) OF THE ACT. 12. IT WAS FURTHER SUBMITTED THAT ON APPEAL, THE LD . CIT(A) AFFIRMED THE ORDER OF AO HOLDING THAT AO HAS CONDUCTED THE ENQUI RY BY EXAMINING THE SUB- TEHSILDAR, BAGRU AND OBTAINING THE KHASRA GIRDAWRI REPORT WHICH SHOWS THAT THE LAND UNDER CONSIDERATION WAS NOT USED FOR THE AGRIC ULTURAL PURPOSE DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. 13. IT WAS FURTHER SUBMITTED THAT THE AO FOR THE F IRST TIME REQUIRED THE ASSESSEE VIDE ORDER SHEET ENTRY DT. 18.12.2017 TO P ROVE THAT LAND WAS USED FOR AGRICULTURAL PURPOSE IN THE PRECEEDING TWO YEARS. O N THE SAME DATE, THE SUB- TEHSILDAR, BAGRU HAS ATTENDED BEFORE THE AO ALONG W ITH KHASRA GIRDAWARI OF SAMVAT YEAR 2064 TO 2068 WHERE THE AO OBTAINED A LE TTER FROM THE SUB- REGISTRAR. THE LETTER OF SUB-REGISTRAR AND KHASRA G IRDAWARI IS REPRODUCED AT PG 6 TO 8 OF THE ASSESSMENT ORDER. THE AO HAS NOT ALLOWE D ANY OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SUB-REGISTRAR WHEN ON THAT DATE ITSELF THE ASSESSEE HAS ATTENDED BEFORE HIM AND THE QUERY WAS RAISED BY THE AO TO FURNISH EVIDENCE TO PROVE THAT LAND WAS USED FOR AG RICULTURAL PURPOSE IN THE ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 10 PRECEDING TWO YEARS. IT WAS SUBMITTED THAT THESE FA CTS SHOWS THAT AO HAS MADE UP HIS MIND FOR MAKING THE ADDITION. 14. FURTHER, OUR REFERENCE WAS DRAWN TO THE RELEVAN T SECTION 10(37) WHICH EXEMPTS THE CAPITAL GAIN ON COMPULSORY ACQUISITION OF THE AGRICULTURAL LAND READS AS UNDER:- IN THE CASE OF AN ASSESSEE, BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY, ANY INCOME CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS ' ARISING FROM THE TRANSFER OF AGRICULTURAL LAND, WHERE (I) SUCH LAND IS SITUATE IN ANY AREA REFERRED TO IN ITE M (A) OR ITEM (B) OF SUB- CLAUSE (III) OF CLAUSE (14) OF SECTION 2; (II) SUCH LAND, DURING THE PERIOD OF TWO YEARS IMMEDIATE LY PRECEDING THE DATE OF TRANSFER, WAS BEING USED FOR AGRICULTURAL PURPOS ES BY SUCH HINDU UNDIVIDED FAMILY OR INDIVIDUAL OR A PARENT OF HIS; (III) SUCH TRANSFER IS BY WAY OF COMPULSORY ACQUISITION U NDER ANY LAW, OR A TRANSFER THE CONSIDERATION FOR WHICH IS DETERMINED OR APPROVED BY THE CENTRAL GOVERNMENT OR THE RESERVE BANK OF INDIA; 15. IT WAS SUBMITTED THAT THERE IS NO DISPUTE AS T O FULFILLMENT OF CONDITION NO. (I) AND (III). THE DISPUTE IS WHETHER THE LAND WAS USED BY THE ASSESSEE FOR AGRICULTURAL PURPOSE DURING THE TWO YEARS IMMEDIATE LY PRECEDING THE DATE OF TRANSFER OR NOT. THE FACT THAT ASSESSEE CARRIED OUT THE AGRICULTURAL ACTIVITY IN THE TWO YEARS PRECEDING THE DATE OF TRANSFER IS PROVED FROM THE FOLLOWING:- - THE FACT THAT THE LAND WAS USED FOR AGRICULTURAL PU RPOSES WAS MENTIONED BY ASSESSEE IN HIS AFFIDAVIT AS WELL AS THE STATEME NT RECORDED U/S 131. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 11 - PHOTOGRAPH OF AGRICULTURE LAND SUBMITTED BY ASSESSE E IN ASSESSMENT PROCEEDING OF AY 2009-10 PROVES THAT AGRICULTURE OP ERATIONS WERE CARRIED OUT. - THERE IS BORING ON THE LAND AND THIS FACT HAS ALSO BEEN BROUGHT TO THE NOTICE OF AO BY WAY OF AFFIDAVIT SUBMITTED VIDE LET TER DT. 05.11.2011. - THE AFFIDAVIT OF CARETAKER LAXMAN SINGH EMPLOYED BY THE ASSESSEE WHEREIN HE ACCEPTED THE FACT OF DOING THE AGRICULTU RAL ACTIVITY ON THE LAND OF THE ASSESSEE. - AFFIDAVIT OF RAMESHWAR CHAUDHARY WHEREIN HE ACCEPTE D THAT WITH HIS HELP ASSESSEE TOOK ELECTRICITY CONNECTION, CONSTRUC TED THE BORING, MADE THE LAND USABLE FOR AGRICULTURAL PURPOSE BY DEPLOYI NG HIS TRACTOR AND THEREAFTER CULTIVATED THE LAND AND ALSO GROWN AMLA TREE ON THE SAID LAND. - IN THE ELECTRICITY BILL, CATEGORY OF THE CONNECTION IS MENTIONED AS AGRICULTURE METER. THE AMOUNT OF ELECTRICITY BILL P AID ALSO INDICATES THAT AGRICULTURAL OPERATIONS WERE CARRIED OUT ON THIS LA ND. - IN THE REASSESSMENT PROCEEDINGS, ASSESSEE PRODUCED BOTH THE PERSONS NAMELY LAXMAN SINGH AND RAMESHWAR CHAUDHARY WHOSE S TATEMENTS WERE RECORDED U/S 131 ON 07.12.2017 WHERE THEY ADMI TTED THE FACT OF CARRYING OUT OF THE AGRICULTURAL ACTIVITY ON THE SA ID LAND. THUS THE ASSESSEE HAS FURNISHED VARIOUS EVIDENCE AS STATED ABOVE WHICH PROVES THAT THE LAND WAS USED FOR AGRICULTURAL PURP OSE BY THE ASSESSEE. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 12 16. IT WAS FURTHER SUBMITTED THAT THE AO HAS REJECT ED THE CLAIM OF THE ASSESSEE ONLY ON THE BASIS OF REPORT OF SUB-TEHSILD AR AND KHASARA GIRDAWARI FOR SAMVAT YEAR 2064 TO 2068. THE KHASRA GIRDAWARI WAS ALSO AVAILABLE IN COURSE OF ASSESSMENT PROCEEDINGS FOR AY 2009-10 BUT CONSID ERING THE VARIOUS OTHER EVIDENCES OF USE OF AGRICULTURAL LAND FOR AGRICULTU RAL PURPOSES FILED BY THE ASSESSEE, THE ISSUE WAS SET ASIDE BY THE TRIBUNAL. IF THE ISSUE WAS TO BE DECIDED ONLY ON THE BASIS OF KHASARA GIRDAWARI THAN THERE WAS NO REASON FOR THE TRIBUNAL TO SET ASIDE THE ISSUE TO THE AO. THER EFORE, THE KHASRA GIRDAWARI CANNOT BE THE SOLE BASIS FOR HOLDING THAT THE LAND WAS NOT USED FOR AGRICULTURAL PURPOSE IN THE PRECEDING TWO YEARS FROM THE DATE OF TRANSFER IGNORING THE STATEMENTS OF SH. LAXMAN SINGH AND RAMESHWAR CHAUDH ARY. 17. IT WAS FURTHER SUBMITTED THAT EVEN THE KHASARA GIRDAWARI FOR SAMVAT YEAR 2065 TO 2068 REFLECTS THE CULTIVATION OF 50 AMLA TR EES ON THE SAID LAND. SAMVAT YEAR 2065 FALLS IN THE YEAR 2008 & 2009. GROWING OF FRUIT TREES IS A USER OF AGRICULTURAL LAND FOR AGRICULTURAL PURPOSE. THUS, E VEN THE KHASRA GIRDAWARI RECORD PROVES THAT THE LAND WAS USED FOR AGRICULTUR AL PURPOSE DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRAN SFER. 18. FURTHER, THE LD AR PLACED RELIANCE ON THE DECI SION OF THE COCHIN BENCH OF THE TRIBUNAL IN CASE OF ITO VS. SMT. G.S. LEKHA (20 19) 180 DTR 249 (TM) WHERE IT WAS HELD AS UNDER:- 20. THIS NOW TAKES ME TO THE QUESTION WHETHER THE LAND IN QUESTION CAN BE REGARDED AS AGRICULTURAL LAND NOTWITHSTANDING TH E FACT THAT THE LAND FALLS WITHIN THE DISCRETION (SIC-DESCRIPTION) OF S. 2(14)(III)(A) OF THE ACT. THE EXPRESSION 'AGRICULTURAL LAND' HAS NOT BEEN DEF INED IN THE 1961 ACT. IT WAS ALSO NOT DEFINED IN THE 1922 ACT. NOR HAS IT BEEN DEFINED EITHER IN THE WT ACT, 1957, GT ACT, 1958 OR THE ED ACT, 1953. THE EXPRESSION ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 13 'AGRICULTURAL LAND' SHOULD THEREFORE, BE GIVEN THE MEANING AS IS GENERALLY UNDERSTOOD IN THE COMMON PARLANCE AND AS IT ORDINAR ILY BEARS IN PLAIN ENGLISH LANGUAGE. BASIC EVIDENCE TO SHOW THE CHARAC TER OF THE LAND AS AGRICULTURE WOULD BE ENTRIES IN THE RECORD OF RIGHT S WHICH WOULD CONSTITUTE PRIMA FACIE EVIDENCE ABOUT AGRICULTURAL CHARACTER OF THE LAND. THE CHARACTERISTIC OF 'AGRICULTURAL LAND' IS NOT DE TERMINED BY THE NATURE OF THE PRODUCE CULTIVATED, AS GRAIN AND FOOD PRODUC TS FOR CONSUMPTION. A COCONUT, JACK FRUIT GROVE HAS TO BE REGARDED AS AGR ICULTURAL LAND. WHERE TREES STANDING ON AN AGRICULTURAL LAND ARE TRANSFER RED ALONG WITH THE LAND AS ITS INTEGRAL PART IN ONE TRANSACTION, THEY WOULD BE REGARDED AS 'AGRICULTURAL LAND' AND NOT A SEPARATE CAPITAL ASSE T. TREES UNTIL THEY ARE CUT AND REMOVED, FORM AN INTEGRAL PART OF THE LAND AND SUCH LAND HAS TO BE REGARDED AS AGRICULTURAL LAND. THE INITIAL BURDE N TO PROVE THAT LAND IN QUESTION WAS BEING USED FOR AGRICULTURAL PURPOSE AT THE RELEVANT TIME IS ON THE ASSESSEE. WHERE THE ASSESSEE HAS PRODUCED EV IDENCE TO PROVE THAT LAND WAS AGRICULTURAL LAND, DEPARTMENT HAS TO LEAD EVIDENCE TO CONTROVERT IT. WHEN THE LAND IS CLASSIFIED AS AGRIC ULTURAL LAND IN REVENUE PAPERS AND AGRICULTURAL OPERATIONS ARE FOUND TO HAV E BEEN CARRIED ON THE DATE OF TRANSFER, THERE IS A PRESUMPTION THAT LAND IS AN AGRICULTURAL LAND AND THE BURDEN IS THEN ON THE DEPARTMENT TO REBUT I T. 21. WITH THE AFORESAID BACKGROUND LET US LOOK AT TH E EVIDENCE IN THE PRESENT CASE. A PERUSAL OF THE SALE DEED DT. 25TH N OV., 2011 UNDER WHICH THE PROPERTY IN QUESTION WAS TRANSFERRED BY THE ASS ESSEE TO VISL CLEARLY GIVES THE DESCRIPTION AS LAND TOGETHER WITH TREES S TANDING THEREON. THE RELEVANT PORTION OF THE ENGLISH TRANSLATION OF THE SALE DEED, WHICH IS AT PP. 29 TO 39 SHOWS THAT OUT OF THE TOTAL CONSIDERAT ION OF RS. 1,69,14,391 A SUM OF RS. 9,060 HAS BEEN GIVEN VALUE OF TREES TH AT WAS STANDING ON THE LAND. THERE WERE ABOUT 77 TO 80 COCONUT TREES B ESIDES JACK FRUIT ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 14 TREES IN THE PROPERTY IN QUESTION. THIS INTRINSIC E VIDENCE TO SHOW THE CHARACTER OF THE LAND WAS AGRICULTURAL LAND, HAS NO T BEEN NOTICED BY THE HONBLE A.M. BESIDES THE ABOVE, THE AGRICULTURAL OF FICER, KRISHI BHAVAN, VIZHINJAM HAS CERTIFIED IN HIS CERTIFICATE THAT THE LAND TO BE AGRICULTURAL LAND. THE AO HIMSELF HAS CONSIDERED THE EXPENSES TO WARDS IMPROVEMENT OF THE LAND AS ALLOWABLE DEDUCTION WHILE COMPUTING THE CAPITAL GAIN. A PERUSAL OF THE NATURE OF THIS EXPENSE, WHICH WE HAV E EXTRACTED IN THE EARLIER PART OF THE ORDER, SHOWS THAT THE SAME ARE ALL IN RELATION TO AGRICULTURAL ACTIVITIES. THE ABSENCE OF DECLARATION OF AGRICULTURAL INCOME, AS I HAVE MENTIONED IN THE EARLIER PART OF THIS ORD ER, WOULD NOT IN MY VIEW NEGATE THE FACT THAT THE LANDS WERE USED FOR A GRICULTURAL PURPOSE. THE ADMITTED POSITION IS THAT THE ASSESSEE DOES NOT HAVE TAXABLE INCOME IN THE PAST AND THERE WAS NO OCCASION FOR HER TO FI LE HER RETURN OF INCOME IN WHICH SHE CAN DECLARE HER AGRICULTURAL INCOME. 23. IN THE LIGHT OF THE AFORESAID FACTUAL AND LEGAL POSITION, I AGREE WITH THE LEARNED J.M. IN HIS CONCLUSION THAT THE ASSESSE E WAS ENTITLED TO EXEMPTION UNDER S. 10(37) OF THE ACT. IN VIEW OF THIS DECISION ALSO, WHEN THE KHASRA GIRD AWARI ITSELF SHOWS EXISTENCE OF 50 AMLA TREES AND ASSESSEE HAS PROVED THAT AGRIC ULTURE ACTIVITY WAS CARRIED OUT ON LAND ACQUIRED UNDER THE LAND ACQUISITION ACT AND THE CROP WAS CONSUMED FOR OWN USE, NON DECLARATION OF AGRICULTUR AL INCOME IN THE RETURN OF INCOME IS OF NO CONSEQUENCE FOR ALLOWING THE EXEMPT ION U/S 10(37). 19. IT WAS FURTHER SUBMITTED THAT SECTION 10(37) R EQUIRES THAT THE AGRICULTURAL LAND SHOULD BE USED FOR AGRICULTURE PURPOSE IN THE IMMEDIATELY PRECEDING TWO YEARS FROM THE DATE OF TRANSFER. THE SECTION NOWHER E REQUIRES THAT IT SHOULD BE CONTINUOUSLY USED FOR TWO YEARS. EVEN IF IT IS USED FOR SOME PERIOD IN THE ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 15 IMMEDIATELY PRECEDING TWO YEARS, CONDITION OF SECTI ON WOULD BE SATISFIED. FOR THIS PURPOSE RELIANCE IS PLACED ON THE FOLLOWING CA SES:- RAMESH NARHARI JAKHADI VS. ITO 41 ITD 368 (PUNE) THE SECTION CONTEMPLATES USER OF THE AGRICULTURAL L AND IN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER AND THER EFORE THE REFERENCE IS TO THE YEARS AND NOT DURING THE WHOLE PERIOD OF TWO YE ARS AS VIEWED BY THE AUTHORITIES. THEREFORE FOR THE PURPOSE OF EXEMPTION U/S 54B IT WAS NOT NECESSARY THAT THE LAND SHOULD HAVE BEEN USED FOR A GRICULTURAL PURPOSE FOR FULL TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFE R. IT WAS SUFFICIENT IF IT WAS SO USED IN THE WHOLE OF THE PRECEDING YEAR AND FOR SOME DAYS IN THE EARLIER YEAR TO PRECEDING YEAR. MAZID KHAN NISAR KHAN V. ITO 59 ITR 68 (TRIB) (PUNE ) IT WAS HELD THAT IN THIS CASE THE ITAT RELIED ON TH E DECISION OF RAMESH NARHARI AND HELD THAT EVEN IF THE ASSESSEE CULTIVATED ONLY KHARIF CROP IN IMMEDIATELY PRECEDING TWO YEARS FROM THE DATE OF SALE OF THE LA ND CONDITION SET OUT IN SECTION 54B FOR CLAIMING BENEFIT OF EXEMPTION WAS C OMPLIED WITH. IT WAS FURTHER HELD THAT IT WAS NOT NECESSARY THAT THE LAND SHOULD HAVE BEEN USED FOR AGRICULTURAL PURPOSE FOR FULL TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. IT WAS SUFFICIENT IF IT WAS SO USED IN TH E WHOLE OF THE PRECEDING YEAR AND FOR SOME DAYS IN THE EARLIER YEAR TO PRECEDING YEAR. THOUGH THE ABOVE DECISIONS ARE WITH REFERENCE TO SE CTION 54B BUT THE RATIO LAID DOWN IN THESE DECISION ARE SQUARELY APPLICABLE TO T HE FACTS OF THE PRESENT CASE. IN VIEW OF ABOVE, ASSESSEE HAS FULFILLED ALL THE CO NDITION LAID DOWN IN SECTION 10(37) OF THE ACT AND THEREFORE THE LONG TERM CAPIT AL GAIN ON COMPULSORY ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 16 ACQUISITION OF THE LAND IS EXEMPT FROM TAX. THEREFO RE, ADDITION MADE BY THE AO AND CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELET ED. 20. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED T HE MATTER AND SUBMITTED THAT THE MATTER HAS BEEN EXTENSIVELY EXAM INED BY THE ASSESSING OFFICER AND BASIS THE REPORT OF SUB-TEHSILDAR BAGRU AND KHASRA GIRDAVARI, THE LAND WAS NOT USED FOR AGRICULTURAL PURPOSES DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ACTION OF THE AO IN D ENYING THE CLAIM OF EXEMPTION U/S 10(37) OF THE ACT AND WHICH HAS BEEN RIGHTLY CO NFIRMED BY THE LD CIT(A) AND THE SAME SHOULD BE UPHELD. 21. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. TO OUR MIND, AMONG ALL THE DOCUMENTS, KH ASRA GIRDAWARI STAND OUT AS A CRITICAL PIECE OF DOCUMENT, BEING PART OF THE GOVERNMENT LAND AND REVENUE RECORDS, WHICH CAN HELP DETERMINE WHETHER THE LAND WAS BEING USED FOR AGRICULTURAL PURPOSES PRECEDING THE DATE OF TRANSFE R OR NOT. IN THE INSTANT CASE, UNDISPUTEDLY, KHASRA GIRDAWARI FOR VIKRAM SAMVAT 20 64 (YEAR 2007) AVAILABLE ON RECORD STATES CLEARLY THAT NO AGRICULTURAL ACTIV ITIES WERE CARRIED OUT ON THE IMPUGNED LAND AND THE LAND WAS LYING VACANT FOR 4 Y EARS. THE SUB-TEHSILDAR, BAGRU HAS APPEARED BEFORE THE ASSESSING OFFICER, FU RNISHED COPIES OF KHASRA GIRDAWARI AND ALSO SUBMITTED A WRITTEN CONFIRMATION IN THIS REGARD TO THE ASSESSING OFFICER. REGARDING CROSS-EXAMINATION OF SUB-TEHSILDAR, BAGRU, WE FIND THAT NO SUCH REQUEST WAS MADE DURING THE COURS E OF ASSESSMENT PROCEEDINGS AND IN ANY CASE, WHAT SUB-TEHSILDAR, BA GRU HAS STATED IN HIS SUBMISSIONS BEFORE THE ASSESSING OFFICER IS ONLY RE CONFIRMATION OF THE CONTENTS OF THE KHASRA GIRDAWARI WHICH ARE NOT DISPUTED BY T HE ASSESSEE AND THEREFORE, WE FIND THAT THERE IS NO PREJUDICE WHICH IS CAUSED TO THE ASSESSEE. IN VIEW OF CLEAR NARRATION IN KHASRA GIRDAWARI FOR VIKRAM SAMV AT 2064 (YEAR 2007) ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 17 AVAILABLE ON RECORD THAT THE LAND WAS LYING VACANT FOR 4 YEARS, WE ARE THEREFORE OF THE VIEW THAT THE AFFIDAVITS OF THE ASSESSEE AND THAT OF THE CARE TAKER LAXMAN SINGH AS WELL AS OF RAMESHWAR CHAUDHARY THAT AGRICULTURAL OPERATION WERE CARRIED OUT IN THE LAND PRIOR TO THE DATE OF T RANSFER DOESNT INSPIRE ANY CONFIDENCE AND ARE CLEARLY SELF-SERVING DOCUMENT AN D DOESNT SUPPORT THE CASE OF THE ASSESSEE. 22. REGARDING CULTIVATION OF 50 AMLA TREES ON THE S AID LAND AS REFLECTED IN KHASRA GIRDAWARI FOR VIKRAM SAMVAT 2065 AND BASIS T HE SAME, THE CONTENTION OF THE LD AR THAT GROWING OF TREES IS A USE OF LAND FOR AGRICULTURAL PURPOSES AND RELIANCE ON DECISION OF THE COORDINATE BENCH IN CAS E OF G.S LEKHA (SUPRA). WE FIND THAT KHASRA GIRDAWARI FOR VIKRAM SAMVAT 2065 S HOWS THE NAME OF JDA AND NOT THAT OF THE ASSESSEE WHICH DEMONSTRATES CLEARLY THAT THE LAND STOOD TRANSFERRED IN NAME OF JDA. FURTHER, IF WE LOOK AT KHASRA GIRDAWARI FOR VIKRAM SAMVAT 2064, WE FIND THAT THERE IS NO MENTION OF AM LA TREES. THEREFORE, THE AFFIDAVITS OF THE ASSESSEE AND THAT OF THE CARE TAK ER LAXMAN SINGH AS WELL AS OF RAMESHWAR CHAUDHARY DOESNT INSPIRE ANY CONFIDENCE AND ARE CLEARLY SELF- SERVING DOCUMENT IN VIEW OF CLEAR NARRATION IN KHAS RA GIRDAWARIES WHICH SHOWS THERE WERE NO AMLA TREES PRIOR TO YEAR 2008. FURTH ER, REGARDING RELIANCE ON THE COORDINATE BENCH DECISION IN CASE OF G.S LEKHA (SUPRA), WE FIND THAT UNLIKE IN THE SAID CASE WHERE A SUM OF RS 9,060 WAS DETERM INED AS VALUE OF TREES STANDING ON THE LAND, THERE IS NOTHING ON RECORD TO SUGGEST THAT THERE IS ANY COMPENSATION WHICH HAS BEEN DETERMINED AND AWARDED BY THE JDA FOR SUCH AMLA TREES AS PART OF OVERALL LAND COMPENSATION. S ECONDLY, IN THAT CASE, THE AGRICULTURAL OFFICER HAS CERTIFIED THE LAND TO BE A GRICULTURAL LAND UNLIKE IN THE PRESENT CASE, WHERE THE LAND RECORDS SHOW NO AGRICU LTURAL OPERATIONS WERE CARRIED ON THE SAID LAND PRIOR TO THE DATE OF TRANS FER. THEREFORE, THE SAID DECISION DOESNT SUPPORT THE CASE OF THE ASSESSEE. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 18 23. FURTHER, WE FIND THAT GIVEN THE SIZE OF PLOT OF LAND MEASURING 0.26 HECTARES AND 1.01 HECTARES RESPECTIVELY WHICH HAS B EEN ACQUIRED BY JDA ALONG WITH BUILDING CONSTRUCTED THEREON, EVEN ASSUMING TH AT THERE ARE AMLA TREES PRIOR TO DATE OF TRANSFER, MERE PRESENCE OF 50 AMLA TREES ON A PART OF LAND WOULD NOT MAKE THE WHOLE OF THE LAND AS BEING USED FOR AGRICULTURAL PURPOSES AS THE LANGUAGE USED IN SECTION 10(37) IS AS UNDER: SUCH LAND, DURING THE PERIOD OF TWO YEARS IMMEDIATE LY PRECEDING THE DATE OF TRANSFER, WAS BEING USED FOR AGRICULTURAL PURPOSES BY SUCH HINDU UNDIVIDED FAMILY OR INDIVIDUAL OR A PARENT OF HIS. 24. THIS BEING AN ESSENTIAL AND FUNDAMENTAL CONDITI ON FOR AVAILING EXEMPTION U/S 10(37) HAS TO BE CONSTRUED STRICTLY AND IN THAT SENSE, THE PHRASE SUCH LAND MEANS THE WHOLE OF THE LAND BEING USED FOR AG RICULTURAL PURPOSES. THE SAME CANNOT BE READ AND UNDERSTOOD AS SUCH LAND OR A PART THEREOF WHERE EVEN A PART OF LAND IS USED FOR AGRICULTURAL PURPOS ES, IT MAY STILL QUALIFY FOR EXEMPTION. HAD THAT BEEN THE INTENTION OF THE LEGI SLATURE, THE SAME WOULD HAVE BEEN PROVIDED APPROPRIATELY. THEREFORE, ON ACC OUNT OF THE SAID REASONING AS WELL, THE CONTENTION OF THE LD AR CANNOT BE ACCE PTED. 25. IN LIGHT OF THE AFORESAID DISCUSSIONS AND IN TH E ENTIRETY OF FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO ACCEDE TO THE CONTE NTIONS SO ADVANCED BY THE LD AR THAT THE ASSESSEE QUALIFIES FOR EXEMPTION UND ER SECTION 10(37) OF THE ACT. THE GROUND OF APPEAL IS THUS DISMISSED. ITA NO. 698/JP/2019 SH. LILO R AMCHANDANI, JAIPUR VS. DCIT, JAIPUR 19 IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 /11/2019. SD/- SD/- ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED:- 04/11/2019 * GANESH KR. COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SH. LILO RAMCHANDANI, JAIPUR 2. THE RESPONDENT- DCIT, CIRCLE-04, JAIPUR 3. CIT 4. CIT(A) 5. DR, ITAT, JAIPUR. 6. GUARD FILE {ITA NO. 698/JP/2019} BY ORDER, ASST. REGISTRAR