Jaswinder Singh, Yamunanagar V. ITO, W-5, Yamunanagar

ITA 833/CHANDI/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2149 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-10-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Fair market value; Capital Gains
• Section: 54B; 54F; 13; 22; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 833/CHD/2019 / ASSESSMENT YEAR : 2008-09 SHRI JASWINDER SINGH, C/O RAJIV GOEL AND ASSOCIATES, 179, BANK ROAD, AMBALA CANTT. VS. ! THE ITO, WARD-5, YAMUNA NAGAR ' # ./ PAN NO.BWBPS0473B '$/ APPELLANT &' '$ / RESPONDENT HEARING THROUGH VIDEO CONFERENCING ()*+ /ASSESSEE BY : SH. ROHIT GOEL, CA *+ / REVENUE BY : SMT. MEENAKSHI VOHRA, ADDL. CIT , -*) .# /DATE OF HEARING : 22.10. 2020 /0 *) .# / DATE OF PRONOUNCEMENT : 22.10.2020 / ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 22.3.2019 OF THE COMMISSIONER OF INCOM E TAX(APPEALS)-4, LUDHIANA [HEREINAFTER REFERRED TO AS CIT(A)]. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED FOLLOWIN G GROUNDS OF APPEAL:- 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN CONFIRMING AN ADDITION OF RS. 1,30,33,870/- MADE BY AO AS LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURE LAND BY HOLDING THE TRA NSFER OF LAND IN THE YEAR UNDER CONSIDERATION DESPITE THE FACT THAT ONLY 10% OF THE ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 2 SALE CONSIDERATION WAS RECEIVED DURING THE YEAR AND BALANCE 90% CONSIDERATION WAS RECEIVED ON 30.06.2008 I.E. AY 20 09-10. 2. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC TS IN CONFIRMING THE ACTIONS OF THE AO OF NOT ALLOWING TH E BENEFIT OF INVESTMENTS IN NEW AGRICULTURE LAND AMOUNTING RS. 1 ,16,49,865/- U/S 54B INVESTED SUBSEQUENT TO THE RECEIPT OF MONEY AGAINST SALE OF AGRICULTURE LAND. 3. THAT LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC TS IN CONFIRMING THE ACTIONS OF THE AO OF ADOPTING INDEXE D COST OF LAND ACQUISITION OF THE LAND AS OF 1-4-1981 AT RS. 2,63, 415/-. 4. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS BY CONFIRMING THE ACTIONS OF THE AO IN REOPENING THE A SSESSMENT U/S 148. 5. THAT APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR TO SUBSTITUTE THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIM E OF HEARING OF CASE. 3. GROUND NO.4 : AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT HE DOES NOT PRESS GROUND NO.4 OF THE APPEAL, GROUND NO.4 OF THE APPEAL IS, THEREFORE, DISMISSED AS NOT PRESSED. 4. GROUND NOS. 1 TO 3 : BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSING OFFICER OBSERVED THAT AS PER INFORMATION AVAILABLE WITH HIS OFFICE, THE ASSESSEE HAD SOLD LAND MEASURING 54 KAN AL 13 MARLA TO M/S SWARG SUKH BUILDHOME PVT LTD FOR A TOTAL CONSIDERAT ION OF RS. 3,75,71,875/- ON 4.4.2007 AND LAND MEASURING 13 KAN AL 10 MARLA TO M/S AMIT JAIN BUILDERS PVT LTD FOR A TOTAL CONSIDERATI ON OF RS. 92,81,250/- ON 13.4.2007. THE ASSESSING OFFICER, HOWEVER, HELD THAT SINCE THE LAND ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 3 SOLD WAS SITUATED WITHIN THE M.C. LIMIT OF JAGADHAR I, THE ASSESSEE WAS LIABLE FOR CAPITAL GAIN TAX. HE, THEREFORE, REOPENE D THE ASSESSMENT OF THE ASSESSEE U/S 147 OF THE INCOME TAX ACT, 1961 (I N SHORT 'THE ACT') AND SHOW CAUSED THE ASSESSEE AS TO WHY THE CAPITAL GAIN S EARNED ON THE SALES OF THE PROPERTY BE NOT SUBJECTED TO CAPITAL G AINS TAX. IN REPLY, THE ASSESSEE CONTENDED THAT THE LAND SOLD WAS ANCESTRAL PROPERTY OF THE ASSESSEE AND, THEREFORE, THE SAID PROPERTY BELONGED TO 'HUF' OF THE ASSESSEE AND THAT THE NOTICE U/S 148 AND ASSESSMENT U/S 147 OF THE ACT SHOULD HAVE BEEN ISSUED / FRAMED IN THE NAME OF THE 'HUF'. THAT THE NOTICE AS WELL AS ASSESSMENT PROCEEDINGS IN THE NAM E OF THE ASSESSEE WERE BAD IN LAW. HOWEVER, THE SAID CONTENTION WAS REJECTED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREAFTE R, ASSESSED THE CAPITAL GAINS AT RS. 2,30,33,870/- 5. BEING AGGRIEVED BY THE SAID ORDER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE DID NOT PRESS THE ISSUE THAT THE LAND BELONGED TO THE 'HUF' , THEREFORE, THIS GROUND WAS DISMISSED BY THE CIT(A) AS NOT PRESSED . HOWEVER, ANOTHER PLEA WAS TAKEN THAT THE PROCEEDS OF THE SALE OF THE LAND WERE INVESTED IN THE PURCHASE OF ANOTHER AGRICULTURAL LAND, THEREFOR E, EXEMPTION FROM CAPITAL GAINS TAX WAS CLAIMED U/S 54B OF THE ACT. H OWEVER, THE SAID CLAIM OF THE ASSESSEE WAS REJECTED BY THE LD. CIT(A ) OBSERVING THAT THE IMMOVABLE PROPERTY WAS PURCHASED BY THE ASSESSEE B EYOND THE DUE DATE ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 4 OF FILING OF THE INCOME TAX RETURN. THE ASSESSEE HA D NOT FURNISHED ANY EVIDENCE WITH REGARD TO THE DEPOSIT OF SALE PROCEED S IN THE CAPITAL GAINS ACCOUNT SCHEME. EVEN THE ASSESSEE HAD NOT FILED INC OME TAX RETURN FOR THE ASSESSMENT YEAR 2008-09. IT WAS FURTHER OBSERVE D THAT THE SAID CLAIM OF DEDUCTION U/S 54B OF THE ACT WAS NOT MADE IN THE RETURN OF INCOME, THEREFORE, THE SAID CLAIM WAS NOT TENABLE IN APPELL ATE PROCEEDINGS. THE LD. CIT(A), THEREFORE, DISMISSED THE APPEAL OF THE ASSESSEE. 6. BEING AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A) , THE ASSESSEE HAS COME IN APPEAL BEFORE US. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. A UTHORIZED REPRESENTATIVES OF BOTH THE PARTIES AND ALSO HAVE G ONE THROUGH THE RECORD. AT THE OUTSET, THE LD. COUNSEL FOR THE ASS ESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL DATED 9.4.2018 IN THE CASE OF SHRI SHEO RAM, JAGADHARI VS ITO ITA NO. 364/CHD/2017, WHEREIN, IN IDENTICA L CIRCUMSTANCES, THE TRIBUNAL CONSIDERING THE DECISION OF THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF TEJINDER KUMAR AND ANOTHER V S STATE OF HARYANA AND OTHERS CWP NO. 1908 OF 2009 DECIDED ON 5.2.20 09 AND FURTHER CONSIDERING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RAJIV KUMAR VS ITO IN ITA NO. 17/CHD/201 6 ORDER DATED 29.6.2016 OBSERVED THAT IN IDENTICAL FACTS AND CIR CUMSTANCES IN THE CASE ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 5 OF OTHER PERSONS ALSO, THE SELLERS / FARMERS WHO HA D SOLD THE LAND TO THE PURCHASERS, AS NAMED ABOVE, HAD RECEIVED ONLY PART PAYMENT OF 10% OF THE ENTIRE CONSIDERATION IN THE FINANCIAL YEAR 200 7-08 AND THE REMAINING CONSIDERATION WAS WITHHELD BY THE BUILDER. THE SE LLERS SO DUPED BY THE BUILDER, HAD APPROACHED THE HON'BLE PUNJAB & HARYA NA HIGH COURT AND THE HON'BLE HIGH COURT VIDE ORDER DATED 5.2.2009 (S UPRA) HAD ORDERED AN INVESTIGATION INTO THE MATTER AND AFTER CONSIDERING THE REPORT OF THE INSPECTOR HAD DIRECTED THE BUILDER TO MAKE THE PAYM ENT OF THE BALANCE ARREARS TO THE SELLERS / FARMERS WHICH WAS PAID BY THE BUILDER IN THE SUBSEQUENT YEARS. THE TRIBUNAL CONSIDERING THE AFOR ESAID FACTS IN THE SAID CASE HAS RESTORED THE MATTER TO THE FILE OF TH E ASSESSING OFFICER FOR THE LIMITED PURPOSE OF ENABLING THE ASSESSEE TO EST ABLISH THE SIMILARITY OF THE FACTS OF THE CASE WITH THAT OF THE CASE OF S HRI RAJIV KUMAR (SUPRA) AND DIRECTED THE ASSESSING OFFICER TO VERIFY THE CL AIM OF THE ASSESSEE IN THIS REGARD AND THEREAFTER TO PASS AND ORDER IN ACC ORDANCE WITH LAW. THE ISSUE RELATING TO THE CLAIM OF DEDUCTION U/S 54B AN D 54F OF THE ACT WAS ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED UPON AFRESH AFTER DECIDING THE MAIN ISSUE OF THE YEAR OF TAXABILITY OF THE CAPITAL GAINS. 8. THE RELEVANT PART OF THE ORDER OF THE TRIBUNAL I N THE CASE OF SHEO RAM VS ITO (SUPRA) IS REPRODUCED AS UNDER;- ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 6 10. FURTHER, CHALLENGING THE ACTION OF THE CIT(APPEALS) IN CONFIRMING THE ADDITION OF RS.3,68, 96,060/- MADE BY THE ASSESSING OFFICER AS LONG TERM CAPITAL GAINS EARNED BY THE ASSESSEE DURING THE IMPUGNED YEAR ON ACCOUNT OF SALE OF LAND, IN GROUND NO.1, THE LD. CO UNSEL FOR ASSESSEE DURING THE COURSE OF HEARING BEFORE US STA TED THAT THE ISSUE WAS SQUARELY COVERED BY THE JUDGMENT OF T HE CHANDIGARH BENCH OF THE I.T.A.T. IN GROUP OF CASES WITH THE LEAD CASE BEING SHRI RAJIV KUMAR VS. ITO IN ITA NO.17/CHD/2016 DATED 29.6.2016 AND WHICH DECISION W AS SUBSEQUENTLY FOLLOWED IN THE CASE OF SH.PURSHOTTAM KUMAR, SMT.PAYAL KUMARI AND SH.PARVEEN KUMAR VS. ITO, WARD ,1,YAMUNANAGAR IN ITA NO 968 TO 971/CHD/2014 & 1185/CHD/2012 DATED 17-08-16.COPIES OF BOTH THE ORD ERS WERE PLACED BEFORE US. DRAWING OUR ATTENTION TO T HE ORDER PASSED IN THE CASE OF RAJIV KUMAR (SUPRA), LD.COUNS EL FOR THE ASSESSEE STATED THAT IN THE SAID CASE ALSO THE FACTS WERE IDENTICAL WITH THAT OF THE ASSESSEE WHEREIN THE LAN D WAS ACQUIRED BY BUILDERS MAKING ONLY PART PAYMENT OF AR OUND 10% OF THE ENTIRE CONSIDERATION AND PROMISING TO PA Y THE BALANCE VIDE UNDATED CHEQUE AND GETTING THE SALE DE ED REGISTERED IN THEIR FAVOUR. IT WAS POINTED OUT THA T IN THE SAID CASE IT WAS BROUGHT TO THE NOTICE OF THE BENCH THAT THE BUILDERS HAD TRIED TO DUPE INNOCENT AGRICULTURISTS IN THIS MANNER BY ACQUIRING THEIR LANDS BY MAKING MEAGER PA YMENT OF THE AGGREGATE SALE CONSIDERATION, PROMISING TO P AY THE BALANCE IN FUTURE, WHICH IN FACT WAS NEVER PAID TO THE AGRICULTURISTS. IT WAS POINTED OUT THAT THE AGRICU LTURISTS ON BEING SO DUPED HAD FILED CASE BEFORE THE HON'BLE PU NJAB & HARYANA HIGH COURT WHO HAD ORDERED AN INVESTIGATION IN THE MATTER AND AFTER CONSIDERING THE REPORT OF THE INVESTIGATOR HAD DIRECTED THE BUILDERS TO MAKE PAYM ENT OF THE BALANCE AMOUNT TO THE AGRICULTURISTS, WHICH WAS PAID AND THUS REALIZED BY THE ASSESSEE ONLY IN THE SUCCE EDING YEAR. IT WAS POINTED OUT TO THE BENCH IN THE SAID CASE THAT IN THE YEAR WHEN THE SALE DEED WAS REGISTERED THE INTENTION OF THE BUYERS WAS CLEARLY NOT TO MAKE PAYMENT OF TH E ENTIRE AGREED AMOUNT. IT WAS ALSO POINTED OUT THAT IT WAS AGREED TO HANDOVER THE POSSESSION ONLY WHEN THE COMPLETE P AYMENT WAS MADE TO THE SELLERS ON FAILURE OF WHICH THE SAL E DEED WOULD BE CANCELLED. THE LD. COUNSEL FOR ASSESSEE PO INTED OUT FROM THE ORDER THAT TAKING NOTE OF THESE AVERME NTS MADE BEFORE IT AND CONSIDERING THE EVIDENCES PLACED BEFO RE IT SUBSTANTIATING THE STATED FACTS, THE I.T.A.T. HELD THAT THE TRANSFER COULD NOT BE SAID TO HAVE TAKEN PLACE IN T HE IMPUGNED YEAR BUT ONLY WHEN THE FINAL PAYMENT WAS RECEIVED BY THE ASSESSEE. IT WAS POINTED OUT THAT THE I.T.A.T. ON THIS BASIS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER OF THE ENTIRE CAPITAL GAINS IN TH E YEAR OF REGISTRATION OF THE SALE DEED. THE LD. COUNSEL FOR ASSESSEE STATED THAT THE FACTS IN THE PRESENT CASE WERE IDEN TICAL TO THAT IN THE CASE OF RAJIV KUMAR & OTHERS (SUPRA), PURSHOTTAM KUMAR & TEJINDER KUMAR AND A CHART POIN TING OUT IDENTICAL FACTS WAS PLACED BEFORE US AS UNDER: ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 7 NO . PARTICULARS FACTS OF RAJIV KUMAR ITA NO. 17/CHD/2016 FACTS OF TAJINDER KUMAR ITA NO.19/CHD/ 2016 FACTS OF PURSHOTAM KUMAR ITA NO.968 & 969/CHD/20 14 FACTS OF SHEO RAM 1. DATE OF REGISTRATION OF SALE DEED 20-3-2007 20-3-2007 20-3-2007 20-3-2007 2. TOTAL VALUE OF SALE CONSIDERATION 5,50,00,000 5,44,15,625 2,95,28,125 3,75,97,656 3. DATE OF RECEIPT OF ADVANCE PAYMENT 25-3-2007 15-3-2007 20-3-2007 15-3-07 4. AMOUNT OF RECEIPT OF ADVANCE PAYMENT 50,00,000 4946875 2693375 32,67,969 6. DATE OF RECEIPT OF FINAL PAYMENT 16-6-2008 15-6-2008 16-6-2008 14-8-2008 7 AMOUNT OF FINAL PAYMENT 5,00,00,000 4,94,68,750 2,68,43,750 3,41,79,688 8 CLAUSE IN SALE DEED THAT IN CASE OF CHEQUE NOT ENCASHED SALE DEED WILL BE CANCELLED YES YES YES YES 9 WRIT PETITION FILED BEFORE PUNJAB & HARYANA HIGH COURT NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5-07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSION OF FARMERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID. YES NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5-07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSION OF FARMERS TO WHOM FULL SALE CONSIDERATION HAS NOT BEEN PAID. NO BUT PETITION FILED BY TAJINDER KUMAR IN CRIMINAL MISC. NO. 36372-M DECIDED ON 31-5-07 BY P&H HC MATTER WAS REFERRED TO SP YNR AND FURTHER IN CWP 1908 OF 2009 A SIT WAS FORMED UNDER ADGP CRIME BRANCH TO COVER ALL FARMERS WITH A DIRECTION TO THE COLLECTOR BY COURT TO PREVENT THIRD PARTY RIGHTS ON LAND OR DISPOSSESSIO N OF FARMERS TO WHOM FULL SALE CONSIDERATIO N HAS NOT BEEN PAID. 10 DATE OF MUTATION OF LAND IN FAVOUR OF 31-3-2007 31-3-2017 31-3-2017 31-3-2017 ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 8 BUYER 11 DATE OF HANDING OVER OF POSSESSION TO BUYER COMPANY AS EVIDENT FROM P&H HC ORDER IN CWP 1908 OF 2009 DATED 5-2-2009 16 - 6 - 2008 15 - 6 - 2008 16 - 6 - 2008 14 - 8 - 2008 11. THE LD. COUNSEL FOR ASSESSEE, THEREFORE, STATED THAT THE ISSUE WAS COVERED IN FAVOUR OF THE ASSESSEE IN VIEW OF THE AFORESAID JUDGMENT OF THE I.T.A.T IN THE CASE OF RA JIV KUMAR(SUPRA) & PURSHOTTAM KUMAR(SUPRA). 12. THE LD. DR PER CONTRA, HOWEVER, POINTED OUT THE FOLLOWING DISTINGUISHING FACTS IN THE PRESENT CASE WITH THAT IN THE CASE OF RAJIV KUMAR (SUPRA): 1) IN THE CASE OF RAJIV KUMAR (SUPRA), ON THE DAY THE SALE DEED WAS REGISTERED I.E. 20.3.2007, THE BU YERS HAD EXECUTED AN AFFIDAVIT WHICH WAS DULY ATTESTED B Y THE EXECUTIVE MAGISTRATE, JAGADHRI IN WHICH THE BUY ERS HAD SPECIFICALLY AFFIRMED THAT THE SALE DEED OF THE LAND HAD BEEN REGISTERED BUT THE SPOT POSSESSION WOULD B E GIVEN AT THE TIME WHEN THE COMPANY WOULD BE MAKING THE TOTAL PAYMENT OF THE POST DATED CHEQUE OF THE ASSESSEE. THAT IN THE CASE OF ASSESSEE THERE IS NO SUCH FACT ON RECORD BUT IN FACT AS PER THE FACTS BROUGHT OUT IN THE ASSESSMENT ORDER AND THE CIT(APPEALS)S ORDE R, THE POSSESSION OF THE LAND HAD ALSO BEEN HANDED OVE R TO THE BUYERS AS PER THE SALE DEED EXECUTED. 2) THAT NO EVIDENCE HAD BEEN BROUGHT ON RECORD BY THE ASSESSEE THAT THE ASSESSEES LAND WAS ALSO COVE RED IN THE CIVIL CASE WHICH WAS FILED BEFORE THE HONBL E HIGH COURT WHEREIN DIRECTION WAS GIVEN BY THE HONB LE HIGH COURT, AFTER CONSTITUTING AN SIT ON THE ISSUE, TO THE BUYERS TO MAKE PAYMENT OF THE BALANCE AMOUNT TO THE SELLERS OF THE LAND. 13. AT THIS JUNCTURE, THE LD. COUNSEL FOR ASSESSEE ADMITTED THAT FACTUAL FINDING WITH REGARD TO THE ASSESSEES L AND BEING INCLUDED AND COVERED IN THE DISPUTED LANDS BEFORE THE HIGH COURT, WERE NOT AVAILABLE ON RECORD BUT AT THE SAME TIME, CONTENDED THAT THE SAME COULD BE ESTABLISHED BY THE ASSESSEE BY PLACING RELEVANT MATERIAL AND EVIDENCE ON RECORD SUBJECT TO VERIFICATION BY THE DEPARTMENT OF THE SAME. THE LD. COUNSEL FOR ASSESSEE REQUESTED, THEREFORE, THAT THE ISSUE BE RESTORED TO THE ASSESSING OFFICER SO AS TO ENABLE T HE ASSESSEE TO ESTABLISH THE IDENTITY OF THE FACTS OF THE PRESE NT CASE WITH THAT IN THE CASE OF RAJIV KUMAR (SUPRA). AS FOR TH E AFFIDAVIT REGARDING POSTPONEMENT OF HANDING OVER OF POSSESSIO N OF ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 9 LAND BY THE SELLERS TO THE BUYERS ONLY ON RECEIPT O F COMPLETE CONSIDERATION, THE LD. COUNSEL FOR ASSESSEE STATED THAT NO SUCH AFFIDAVIT WAS FILED IN THE CASE OF PARSHOTAM K UMAR WHICH WAS ALSO AN IDENTICAL CASE DECIDED ON THE LIN ES OF RAJIV KUMAR(SUPRA) FOLLOWING THE SAID DECISION. 14. THE LD. DR DID NOT OBJECT TO THE REQUEST OF THE LD.COUNSEL FOR THE ASSESSEE. 15. CONSIDERING THE ABOVE, IN THE INTEREST OF JUSTI CE, WE RESTORE THE ISSUE BACK TO THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF ENABLING THE ASSESSEE TO ESTABLI SH THE IDENTITY OF THE FACTS OF THE PRESENT CASE WITH THAT IN THE CASE OF RAJIV KUMAR(SUPRA) AND PURSHOTAM KUMAR (SUPRA) A ND DIRECT THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE IN THIS REGARD AND THEREAFTER PASS AN ORDE R IN ACCORDANCE WITH LAW. THIS GROUND OF APPEAL IS, THE REFORE, ALLOWED FOR STATISTICAL PURPOSES. 16. IN VIEW OF THE RESTORATION OF GROUND OF CHARGIN G OF ENTIRE CAPITAL GAIN TO TAX IN THE IMPUGNED YEAR TO THE ASSESSING OFFICER, WE FIND THAT THE REMAINING GROUN DS I.E. GROUND NO.2 TO 4, WITH REGARD TO THE CLAIM OF EXEMP TION U/S 54B & 54F OF THE ACT, CONSIDERING FAIR MARKET VALUE OF PROPERTY AND RELATING TO GRANT OF BENEFIT OF COST O F IMPROVEMENT OF LAND, CANNOT BE ADJUDICATED AT THIS JUNCTURE. THESE ISSUES ARE, THEREFORE, ALSO RESTORED TO THE A SSESSING OFFICER TO BE ADJUDICATED UPON AFRESH AFTER DECIDIN G THE MAIN ISSUE IN THE PRESENT APPEAL AS PER OUR DIRECTI ONS WITH REGARD TO GROUND NO.1 RAISED BY THE ASSESSEE. THE GROUNDS OF APPEAL NOS.2 TO 4 ARE ALSO, THEREFORE, ALLOWED F OR STATISTICAL PURPOSES. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. 9. THE LD. DR HAS ALSO SUBMITTED THAT THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION OF T HE FACTS AND THAT IF FACTS OF THIS CASE ARE IDENTICAL TO THAT OF THE CASE OF S HRI RAJIV KUMA (SUPRA), THE MATTER BE DECIDED AS PER THE FINDINGS ARRIVED A T IN THE CASE OF SHRI RAJIV KUMAR (SUPRA). ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 10 10. CONSIDERING THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, THE ISSUE OF THE RELEVANT YEAR OF THE TAXABILITY AND THE CONSEQU ENT DEDUCTION CLAIMED U/S 54B / 54F IS RESTORED TO THE FILE OF THE ASSESS ING OFFICER WITH IDENTICAL DIRECTIONS AS GIVEN VIDE ORDER DATED 9.4. 2018 (SUPRA) AS REPRODUCED ABOVE. 11. SO FAR AS THE CONTENTION THAT THE LAND BELONGED TO THE 'HUF' AND NOT TO THE ASSESSEE, WE ARE NOT CONVINCED WITH THE SAID CONTENTION OF THE ASSESSEE. THE LAND WAS IN THE NAME ASSESSEE IN INDI VIDUAL CAPACITY AND THE SAME WAS SOLD TO THE BUILDER BY THE ASSESSEE IN HIS INDIVIDUAL CAPACITY AS THERE WAS NO MENTIONED THAT THE LAND WA S BEING SOLD BY THE ASSESSEE AS KARTA OF 'HUF'. FURTHER, THE PROCEEDS O F THE SALE WERE ALSO DEPOSITED/ RETAINED BY THE ASSESSEE IN HIS INDIVIDU AL CAPACITY AND FURTHER THE LAND SO PURCHASED OUT OF THE PROCEEDS OF THE SA LE WAS ALSO IN THE NAME OF THE ASSESSEE IN INDIVIDUAL CAPACITY. IN VIE W OF THIS, THE PLEA THAT THE INCOME / CAPITAL GAINS SHOULD HAVE BEEN ASSESSE D IN THE NAME OF THE 'HUF' SEEMS TO BE AN AFTERTHOUGHT. MOREOVER, THE IS SUE RELATING TO THE 'HUF' HAS NOT BEEN PRESSED BEFORE THE LD. CIT(A). T HIS ISSUE IS ACCORDINGLY DECIDED AGAINST THE ASSESSEE. IT IS FURTHER CLARIFIED THAT IF THE ASSESSEE HAS B EEN ABLE TO DEMONSTRATE THAT THE MAJOR PORTION OF THE PROCEEDS OF SALES, AS ALLEGED BY THE ASSESSEE, WAS IN THE SUBSEQUENT YEAR AND THE LAND WAS PURCHASED OUT OF THE SALE PROCEEDS OF THE ASSESSEE, THEN IN T HAT EVENT, THE CONDITION ITA NO. 833-C-2019- SH JASWINDER SINGH, AMBALA CANTT. 11 OF DEPOSITING THE AMOUNT OF SALE PROCEEDS IN CAPITA L GAIN ACCOUNT WOULD NOT BE APPLICABLE BEING IMPOSSIBLE IN THE GIVEN CIR CUMSTANCES AS THE ASSESSEE COULD NOT HAVE EXPECTED TO DEPOSIT OF S ALE PROCEEDS IN THE CAPITAL GAINS ACCOUNT WHICH, IN FACT, HAD NOT BEEN ACTUALLY RECEIVED BY THE ASSESSEE. UNDER THE CIRCUMSTANCES, IF THE ASSES SEE UPON RECEIPT OF THE MAJOR PART OF THE SALE PROCEEDS HAS INVESTED T HE SAME FOR THE PURCHASE OF AGRICULTURAL LAND, AS CONTENDED, THE AS SESSEE, IN OUR VIEW, WOULD BE ELIGIBLE FOR GRANT OF DEDUCTION U/S 54B OF THE ACT. WITH THE ABOVE OBSERVATIONS, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER, AS DIRECTED ABOVE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.10.2020. SD/- SD/- ( . . / N.K. SAINI) ( / SANJAY GARG) !'# /VICE PRESIDENT $% / JUDICIAL MEMBER DATED : 22 . 10.2020 .. 2*&)3454) / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. &' '$ / THE RESPONDENT 3. , 6) / CIT 4. , 6) ( )/ THE CIT(A) 5. 47 &)8 , . 8 , 9:;< / DR, ITAT, CHANDIGARH 6. ;= - / GUARD FILE 2 , / BY ORDER, > / ASSISTANT REGISTRAR