Dy. CIT Circle-3,, Pune v. Sh. Rajiv Shivajirao Ghule, Pune

ITA 1219/PUN/2010 | 2007-2008
Pronouncement Date: 10-04-2014 | Result: Partly Allowed

Appeal Details

RSA Number 121924514 RSA 2010
Assessee PAN ABFPG7104F
Bench Pune
Appeal Number ITA 1219/PUN/2010
Duration Of Justice 3 year(s) 7 month(s)
Appellant Dy. CIT Circle-3,, Pune
Respondent Sh. Rajiv Shivajirao Ghule, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 10-04-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 10-04-2014
Date Of Final Hearing 01-01-2014
Next Hearing Date 01-01-2014
Assessment Year 2007-2008
Appeal Filed On 09-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 1153/PN/2010 (ASSESSMENT YEAR : 2007-08) SHRI RAJIV SHIVAJIRAO GHULE KRISHNA DEEP AT POST : MANJARI TAL :HAVELI PUNE-412307 PAN NO. ABFPG7104F .. APPELLANT VS. ACIT CIRCLE-3 PUNE .. RESPONDENT ITA NO. 1219/PN/2010 (ASSESSMENT YEAR : 2007-08) DY. COMMISSIONER OF INCOME TAX CIRCLE-3 PUNE .. APPELLANT VS. SHRI RAJIV SHIVAJIRAO GHULE 1206-41A 3 RD FLOOR VYAS VERTEX J.M. ROAD SHIVAJINAGAR PUNE-411005 PAN NO. ABFPG7104F .. RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI P.L. PATHADE DATE OF HEARING : 02-04-2014 DATE OF PRONOUNCEMENT : 10-04-2014 ORDER PER R.K. PANDA AM : THESE ARE CROSS APPEALS. THE FIRST ONE IS FILED BY THE ASSESSEE AND THE SECOND ONE FILED BY THE REVENUE AND ARE DIR ECTED AGAINST THE ORDER DATED 17-06-2010 OF THE CIT(A)-II PUNE RELAT ING TO ASSESSMENT YEAR 2007-08. 2 2. GROUND OF APPEAL NO. 1 BY THE ASSESSEE AND GROUN DS OF APPEAL NO. 1 TO 5 BY THE REVENUE RELATE TO THE ORDER OF TH E LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER TO ADOPT THE FAIR M ARKET VALUE OF THE LAND AT RS.6/- PER SQ. FT. AS ON 01-04-1981 AS AGAI NST RS.13.50 PER SQ. FT. CLAIMED BY THE ASSESSEE AND RS.1/- DETERMINED B Y THE ASSESSING OFFICER. 2.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND T RADING IN PETROLEUM PRODUCTS. HE FILED HIS RETURN OF INCOME ON 25-10-2 007 DECLARING TOTAL INCOME OF RS.54 88 815/-. FROM THE DETAILS FILED B Y THE ASSESSEE THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SOLD AGRICULTURAL LAND SITUATED AT S.NO. 127 ON 06-04-2006 FOR A CONSIDERA TION OF RS.3 23 70 000/-. FOR THE PURPOSE OF COST OF ACQUI SITION THE ASSESSEE HAS TAKEN THE VALUE OF LAND ON 01-04-1981 AT RS.22 62 000/- ON THE BASIS OF A VALUATION REPORT. FROM THE DETAILS FURN ISHED BY THE ASSESSEE THE ASSESSING OFFICER OBSERVED THAT THE VALUER HAS ADOPTED COMPARING SALE INSTANCE METHOD TO ARRIVE AT THE S AID VALUE. HOWEVER THE ASSESSING OFFICER WAS NOT SATISFIED WI TH SUCH VALUATION. AFTER OBTAINING DETAILS FROM THE TOWN PLANNING & VA LUATION DEPARTMENT THE ASSESSING OFFICER CONCLUDED THAT THE VALUATION FOR 1981 HAS TO BE TAKEN AT 40% OF THE VALUE OF 1989 SI NCE THE SAID AUTHORITY HAS BEEN ISSUING READY RECKONER SINCE 1 989 FOR THE PURPOSE OF STAMP DUTY VALUATION. FROM THE RECORDS GIVEN BY THE TOWN PLANNING AUTHORITY THE ASSESSING OFFICER NOTED THAT IN MANJARI BHUDRUK TALUKA HAVELI PUNE THE RATE OF AGRICULTU RAL LAND IN 1989 IS RS.2 00 000/- PER HECTARE. SO AS ON 01-04-1989 TH E RATE OF 3 AGRICULTURAL LAND IS 40% OF RS.80 000/- PER HECTARE . THE ASSESSING OFFICER ACCORDINGLY DETERMINED THE VALUE OF THE P ROPERTY AS ON 01- 04-1981 AT RS.1 28 800/- BEING THE VALUE OF 1.61 HE CTARES. 2.2 IN APPEAL THE LD. CIT(A) BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE DIRECTED THE ASSESSING OFFICER TO DETE RMINE THE VALUE AT RS.6/- PER SQ. FT. AS AGAINST RS.13.50 PER SQ.FT. ADOPTED BY THE ASSESSEE AND ABOUT RS.1/- PER SQ.FT. DETERMINED BY THE ASSES SING OFFICER. 2.3 AGGRIEVED WITH SUCH PART RELIEF GIVEN BY THE CI T(A) THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFOR E US. 3. THE LD. COUNSEL FOR THE ASSESSEE FILED CERTAIN A DDITIONAL EVIDENCES. REFERRING TO THE SAME HE SUBMITTED THAT IN THE CASE OF BROTHER OF THE ASSESSEE I.E. SHRI SUNIL ASHOK GHULE THE DEPARTMENT HAS ACCEPTED THE VALUE OF THE LAND AS ON 01-04-1981 AT RS.13.50/- PER SQ. FT. ON THE BASIS OF THE SAME VALUER. HOWEVER SINCE THE ASSESSEE HAD STRAINED RELATIONSHIP WITH HIS BROTHER THE ASSE SSMENT ORDER IN HIS CASE COULD NOT BE OBTAINED BEFORE THE COMPLETION OF APPEAL BEFORE THE CIT(A). SINCE THIS ADDITIONAL EVIDENCE SUPPORTS TH E CASE OF THE ASSESSEE THEREFORE THE SAME SHOULD BE ACCEPTED. REFERRING TO THE VALUATION REPORT IN THE CASE OF SHRI SATISH DATTATR AYA MAGAR HE SUBMITTED THAT THE VALUE OF LAND AS ON 01-04-1981 H AS BEEN DETERMINED AT RS.18.46/- PER SQ. FT. FOR THE LAND S ITUATED NEAR MAGARPATTA. HE SUBMITTED THAT SINCE THE LAND OF TH E ASSESSEE IS SITUATED JUST 2 KMS. AWAY FROM MAGARPATTA THEREFOR E THE RATE OF 13.50 PER SQ. FT. IS REASONABLE AND THE SAME SHOULD HAVE BEEN ACCEPTED. HE FURTHER SUBMITTED THAT SINCE THESE AR E ALL ADDITIONAL EVIDENCES THEREFORE THE SAME SHOULD BE ACCEPTED A ND THE MATTER MAY 4 BE RESTORED TO THE FILE OF THE CIT(A) WITH THE DIRE CTION TO RE-ADJUDICATE THE ISSUE. 3.1 THE LD. DR WHILE SUPPORTING THE ORDER OF THE AS SESSING OFFICER SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THE ADDITION AL EVIDENCES FILED BY THE ASSESSEE IN THE SHAPE OF COPY OF THE ASSESSM ENT ORDER IN THE CASE OF HIS BROTHER SHOWING THE VALUATION OF THE LA ND AS ON 01-04-1981 AT RS.13.50/- PER SQ. FT. WHICH HAS BEEN ACCEPTED B Y THE DEPARTMENT AND THE COPY OF THE VALUATION REPORT IN THE CASE OF SHRI SATISH DATTATRAYA MAGAR DETERMINING THE VALUE OF LAND AT R S.18.46/- PER SQ. FT. AS ON 01-04-1981 NEAR MAGARPATTA ARE ACCEPTED. SINCE THESE EVIDENCES GO TO THE ROOT OF THE MATTER AND WERE NOT AVAILABLE BEFORE THE CIT(A) THEREFORE WE IN THE INTEREST OF JUSTI CE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE ISSUE AFRESH. NEEDLESS TO SAY THE LD.CIT(A) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. GROUND OF APPEAL NO. 1 BY THE ASSESSEE AND GROUNDS OF APPEAL NOS. 1 TO 5 BY THE REVENUE ARE AC CORDINGLY ALLOWED FOR THE STATISTICAL PURPOSES. 5. GROUND OF APPEAL NOS. 2 AND 2.1 BY THE ASSESSEE READS AS UNDER: 2. THE LEARNED CIT(A) ERRED IN REJECTING THE CLAIM OF THE ASSESSEE OF REDUCTION IN THE TOTAL SALE CONSIDERATION ON THE GROUND THAT THE SAID CLAIM WAS NOT MADE BY THE ASSESSEE I N THE RETURN OF INCOME AND HENCE THE SAID ISSUE COULD NOT B E ENTERTAINED IN THE APPELLATE PROCEEDINGS. 5 2.1. THE ASSESSEE SUBMITS THAT THE CAPITAL GAINS SHOULD HAV E BEEN COMPUTED BY ADOPTING THE TOTAL CONSIDERATION AT RS.2 91 12 500/- AS AGAINST RS.3 23 70 000/- AS TAXED BY THE LEARNED A.O. IN THE ASST. ORDER. 5.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE WHILE COMPUTING ITS CAPITAL GAIN HAS SHOWN THE SALE OF LAND AT RS.3 23 70 000/-. HOWEVER BEFORE THE CIT(A) THE ASSESSEE SUBMITTED T HAT THE CONSIDERATION ON SALE OF LAND AT S. NO. 127/1 MANJ ARI BUDRUK PUNE HAS NOT BEEN SHOWN CORRECTLY AS THE ASSESSEE HAS TR ANSFERRED THE DEVELOPMENT RIGHTS ONLY IN RESPECT OF 1 HECTARE AND 40.30 R AND THE DEAL RELATING TO THE REMAINING LAND BEING 15.70 R W AS CANCELLED. IT WAS ACCORDINGLY REQUESTED THAT THE CAPITAL GAINS SH OULD BE TAXED ONLY ON THAT PORTION OF THE LAND WHICH IS RS.2 91 12 500 /- AFTER EXCLUDING THE CANCELLED PORTION. 5.2 HOWEVER THE CIT(A) DID NOT ACCEPT THE ABOVE CO NTENTION OF THE ASSESSEE. HE OBSERVED THAT THE ASSESSEE HIMSELF HA S SHOWN TO HAVE RECEIVED CONSIDERATION FOR TRANSFER OF LAND AT RS.3 23 70 000/- IN THE RETURN OF INCOME. NOW THE ASSESSEE WANTS TO REVISE THE SAME TO RS.2 91 12 500/- ON THE BASIS OF CANCELLATION DEED DATED 15-12-2009 THE ORIGINAL DEVELOPMENT AGREEMENT BEING DATED 07-0 4-2006. THIS CLAIM WAS NEITHER MADE IN THE RETURN OF INCOME NOR MADE DURING THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER WHICH CONTINUED TILL THE DATE AFTER EXECUTION OF THIS SO CALLED CAN CELLATION DEED. RELYING ON THE DECISION OF THE HON'BLE SUPREME COUR T IN THE CASE OF GOETZ INDIA LTD. REPORTED IN 284 ITR 323 HE REJECT ED THE CLAIM OF THE ASSESSEE WHICH HAS BEEN MADE FOR THE FIRST TIME DUR ING THE APPELLATE PROCEEDINGS. ACCORDINGLY HE ALSO REJECTED THE REQ UEST FOR ADMISSION 6 OF CERTAIN ADDITIONAL EVIDENCES ON THIS ISSUE ON TH E GROUND THAT THE SAME CANNOT BE ENTERTAINED SINCE THE FACTS RELATING TO THIS CLAIM WERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER DURING T HE ASSESSMENT PROCEEDINGS AND THE ASSESSEE DOES NOT FULFIL THE CO NDITIONS PRESCRIBED IN RULE 46A(1) FOR ADMISSION OF THE SAME. HE ACCOR DINGLY DISMISSED THE GROUNDS RAISED BEFORE HIM FOR WHICH THE ASSESSE E IS IN APPEAL BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E DECISION OF HONBLE BOMBAY HIGH COURT (AURANGABAD BENCH) IN THE CASE OF ANANT CHUNILAL KATE REPORTED IN 267 ITR 482 SUBMITT ED THAT UNDER SIMILAR CIRCUMSTANCES WHERE THE ASSESSEE HAD RETURN ED THE SALE PROCEEDS OF 17 PLOTS TO OWNER OF THE LAND ON THE BA SIS OF A COMPROMISE DECREE DATED 19-01-1989 THE HONBLE HIGH COURT HELD THAT THE SAID AMOUNT CANNOT BE ADDED IN THE DISCLOSED INCOME WHIC H WAS INITIALLY SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME FOR T HE A.Y. 1981-82. REFERRING TO THE DECISION OF THE MUMBAI BENCH OF TH E TRIBUNAL IN THE CASE OF SUSHILA SHANTILAL JHAVERI VS. UNION OF INDI A AND ANOTHER REPORTED IN 286 ITR 428 HE SUBMITTED THAT THE HON'B LE HIGH COURT IN THE SAID DECISION HAS HELD THAT SUBSEQUENT EVENTS O R DEVELOPMENTS OCCURRED PENDENT LITE CAN BE CONSIDERED IF THEY HAV E THE EFFECT OF OVERSHADOWING THE ORIGINAL CASE FOUND BY THE COURT BELOW. HE SUBMITTED THAT SINCE THE ASSESSEE IN THE INSTANT CA SE HAS TO CANCEL THE TRANSACTION OF A PORTION OF THE LAND DUE TO DEFAULT ON THE PART OF THE PURCHASER AND DID NOT SALE THE SAID PORTION OF THE LAND AND RETAINED THE SAME FOR HIMSELF THEREFORE IN VIEW OF THE ABOVE T WO DECISIONS THE ASSESSEE IS NOT LIABLE TO FULL CAPITAL GAIN TAX. 7 6.1 REFERRING TO THE DECISION OF THE MUMBAI BENCH O F THE TRIBUNAL IN THE CASE OF KALPTARU CONSTRUCTION OVERSEAS (P) L TD. VS. DCIT REPORTED IN 13 SOT 194 HE SUBMITTED THAT THE TRIBU NAL IN THE SAID DECISION HAS HELD THAT SUBSEQUENT EVENT CONTINGENT UPON WHICH THE SALE CONSIDERATION OF CAPITAL ASSET WAS VARIABLE AN D WHICH IN FACT VARIED THE SALE CONSIDERATION HAS TO BE CONSIDERED FOR COMPUTING CAPITAL GAINS. FOR THIS PURPOSE HE DREW THE ATTENT ION OF THE BENCH TO THE FOLLOWING HEAD NOTE : CAPITAL GAINS-COMPUTATION-CONSIDERATION OF SUBSEQUENT EVENTS- ASSESSEE AGREEING TO SELL ITS SUBSIDIARY BY SELLING ITS ENTI RE EQUITY SHARES THEREIN TO ONE T BY AGREEMENT DATED. 10 TH JULY 1998 ON THE CONDITION THAT THE LIABILITIES PERTAINING TO THE PER IOD PRIOR TO 30 TH JUNE 1998 AND THE CURRENT ASSETS AS APPEARING IN THE BOOKS OF ACCOUNTS WERE ALL REALISABLE AT THE AMOUNTS STATED THEREIN AT A SSESSEES RISK SUBJECT TO THE CEILING OF RS.1.25 CRORES ASSESSEE THEREF ORE SHOWED THE CONSIDERATION OF RS.1.25 CRORES IN THE RETURN-AMOUNT O F CONSIDERATION FINALLY SETTLED AT RS.1 CRORE DUE TO VARIOUS UNREALISED /UNREALISABLE CURRENT ASSETS AND THEN PROVIDED LIABILITIES-SUCH A SUB SEQUENT EVENT WOULD RELATE BACK TO THE ASSESSMENT YEAR UNDER CONSIDERA TION-MATTER REMANDED FOR FRESH CONSIDERATION. 6.2 REFERRING TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF B.G. SHIRKE CONSTRUCTION TECHNOLOGY PRIVATE LIMITED VS. ACIT VIDE ITA NOS. 727 TO 730/PN/2012 ORDER DATED 3 1-10-2013 FOR THE A.YS. 2003-04 2006-07 TO 2008-09 HE DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING OBSERVATION OF THE TRIBUNAL : 21. IN ANY CASE THE JUDGMENT OF THE HON'BLE SUPREM E COURT IN THE CASE OF GOETZ (INDIA) LTD. (SUPRA) DOES NOT IMPINGE ON THE POWERS OF APPELLATE AUTHORITIES TO ENTERTAIN A FRESH CLAIM WHIC H WAS HITHERTO NOT PREFERRED BY THE ASSESSEE IN THE RETURN OF INCOME AS E XPLAINED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF JAI PARABOLI C SPRINGS LTD. (SUPRA). ACCORDINGLY THERE WAS NO IMPEDIMENT FOR TH E CIT(A) TO HAVE ENTERTAINED THE IMPUGNED CLAIM ESPECIALLY WHEN THE R EQUIRED FACTS TO ADJUDICATE THE CONTROVERSY WERE ALREADY ON RECORD. HE ACCORDINGLY SUBMITTED THAT THIS MATTER MAY BE RE STORED TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO ADJUDICATE THE GROUND AFRESH. 8 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THE ONLY DI SPUTE IN THE INSTANT CASE IS THE COMPUTATION OF CAPITAL GAIN ON THE BASI S OF THE SALE CONSIDERATION SHOWN AT RS.3 23 70 000/- IN THE RETU RN OF INCOME FILED BY THE ASSESSEE HIMSELF OR TO SUBSTITUTE THE SAME A T RS.2 91 12 500/- IN VIEW OF THE CANCELLATION DEED DATED 15-12-2009. UN DISPUTEDLY THIS CLAIM WAS NOT MADE BEFORE THE ASSESSING OFFICER EIT HER BY FILING OF A REVISED RETURN OR THROUGH ANY OTHER SUBMISSION. WE FIND THE LD. CIT(A) DID NOT ENTERTAIN THE CLAIM MADE BEFORE HIM AND REJECTED THE ADDITIONAL EVIDENCE FILED BEFORE HIM ON THE GROUND THAT THE ASSESSEE HAS MADE THIS CLAIM FOR THE FIRST TIME DURING APPEL LATE PROCEEDINGS AND THEREFORE IN VIEW OF THE DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF GOETZ INDIA LTD. (SUPRA) THE CLAIM OF THE ASSESS EE CANNOT BE ENTERTAINED. 8.1 WE FIND THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF SUSHILA SHANTILAL JHAVERI (SUPRA) HAS HELD AS UNDER: HAVING HEARD MR. JHAVERI LEARNED COUNSEL FOR THE P ETITIONER; HAVING SEEN THE IMPACT OF THE SUBSEQUENT EVENTS ON THE OPERATI NG PART OF THE IMPUGNED ORDER THE SUBMISSION MADE BY MR. JHAVERI NEE DS ACCEPTANCE. THE APEX COURT IN THE CASE OF GAYA PRASAD AIR 2001 SC 803 RULED THAT SUBSEQUENT EVENTS OR DEVELOPMENTS OCCURR ED PENDENTE LITE CAN BE CONSIDERED; IF IT HAS THE EFFECT OF OVERSH ADOWING THE ORIGINAL CASE FOUND BY THE COURT BELOW. IN THE CASE OF HASMAT RAI VS. RAGHUNATH PRASAD AIR 1981 SC 1711 THE APEX COURT HE LD THAT THE MAGNITUDE OF SUBSEQUENT EVENTS OR THE DIMENSION THEREOF SHOULD BE SUCH THAT IT SHOULD HAVE THE EFFECT OF COMPLETELY CHA NGING THE COLOUR OF THE ORIGINAL FINDINGS. IN OUR CONSIDERED VIEW THE SUB SEQUENT EVENTS BROUGHT ON RECORD HAVE COMPLETELY CHANGED THE COLOU R OF THE ORIGINAL FINDINGS EXTRACTED IN PARA. 2 SUPRA. IN THE PECULIAR FACTS AND 9 CIRCUMSTANCES OF THIS CASE WE FEEL THAT IT WOULD BE NE CESSARY TO DIRECT THE COMMISSIONER OF INCOME-TAX TO RECONSIDER THE APPLI CATION FILED AND THE SUBMISSIONS MADE BY THE PETITIONER ON ITS OWN ME RITS IN THE LIGHT OF THE SUBSEQUENT EVENTS SINCE THEY HAVE DISLODGED THE VALIDITY OF THE ADVERSE FINDINGS SUFFERED BY THE PETITIONER. IN THE ABOVE VIEW OF THE MATTER THE IMPUGNED ORDER DATED OCTOBER 15 1992 IS SET ASIDE. THE APPLICATION UNDER SECTION 273A OF THE ACT IS RESTORED TO THE FILE OF THE COMMISSIONER OF INCOME-TAX CITY VII MUMBAI. THE PROCEEDINGS ARE REMITTED BACK TO HIM FOR CONSIDERATION AFRESH FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE KEE PING ALL RIVAL CONTENTIONS OPEN. THE COMMISSIONER OF INCOME-TAX HAVING JURISDICTION TO DEAL WITH THE MATTER IS DIRECTED TO DECIDE THE APPLICATION AS EXPED ITIOUSLY AS POSSIBLE IN ANY EVENT WITHIN 6 MONTHS FROM THE DATE O F RECEIPT OF THE COPY OF THIS ORDER. IN THE RESULT THE PETITION IS ALLOWED. RULE IS MADE A BSOLUTE IN TERMS OF THE ABOVE ORDER WITH NO ORDER AS TO COSTS. 8.2 WE FIND THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF ANANT CHUNILAL KATE (SUPRA) HAS HELD AS UNDER : WE CAREFULLY PERUSED THE JUDGMENT OF THE TRIBUNAL. THE TRIBUNAL DID NOT AT ALL TREAT THE COMPROMISE DECREE AS A LAWFUL DE CREE. THE TRIBUNAL WAS UNDER IMPRESSION THAT THE RIGHTS AND LIABILITIES OF THE PARTIES WERE NOT DETERMINED AFTER APPLYING THE MIND TO THE CONTE NTS OF THE CONTRACT AND AFTER APPRECIATION OF EVIDENCE. THE TRIBUNAL HA S MADE A DISTINCTION BETWEEN THE DECREE PASSED AFTER CONSIDERING VARIOUS CONTENTIONS RAISED AND CASE LAW REFERRED TO BY THE PA RTIES AND A DECREE PASSED IN ACCORDANCE WITH THE COMPROMISE REACHE D BY THE PARTIES OUTSIDE THE COURT. THE TRIBUNAL'S DECISION IN T HIS BEHALF IS CONTRARY TO THE WELL-SETTLED LEGAL POSITION. A DECRE E IN TERMS OF SETTLEMENT ARRIVED AT BY THE PARTIES BEFORE THE COURT HAS THE SAME BINDING FORCE AS ANY OTHER DECREE. IN THE CASE OF KU MAR SUDHENDU NARAIN DEB V. MRS. RENUKA BISWAS [1992] 1 SCC 206 TH E APEX COURT HAS HELD THAT THE DECREE IN TERMS OF SETTLEMENT ARRIVE D AT BY THE PARTIES BEFORE THE COURT HAS THE SAME BINDING FORCE A S ANY OTHER DECREE. THE SETTLEMENT WAS NOT ARRIVED AT OUTSIDE THE COURT. IN THE INSTANT CASE THE MATTER WAS COMPROMISED IN THE HIGH COURT AND ON THE BASIS OF THE TERMS OF COMPROMISE THE COMPROMISE DECREE WAS PASSED. UNDER THE CIRCUMSTANCE THE COMPROMISE DECREE I N FIRST APPEAL WHICH WAS PENDING BEFORE THE HIGH COURT IS A LEGAL DECREE FOR ALL PURPOSES. UNDER THE CIRCUMSTANCES THE CONCLUSIONS DR AWN BY THE TRIBUNAL WITH REGARD TO THE NATURE OF COMPROMISE DEC REE ARE LIABLE TO BE SET ASIDE. ACCORDINGLY WE ANSWER QUESTION NO. 1 IN THE AFFIRMATIVE. SECTION 54 OF THE TRANSFER OF PROPERTY ACT SPEAKS ABOU T THE SALE OF IMMOVABLE PROPERTY. ADMITTEDLY PARDESHI THE OWNER OF THE LAND DID NOT EXECUTE A SALE DEED IN FAVOUR OF THE APPELLANT. IN THE ABSENCE OF A SALE DEED THE APPELLANT DOES NOT BECOME THE LAWFUL O WNER OF THE IMMOVABLE PROPERTY AGREED TO BE SOLD IN HIS FAVOUR. IN THE ABSENCE OF A SALE DEED OF THE LAND THE APPELLANT HAS NO LEGAL R IGHT TO SELL THE PLOTS. UNDER THE CIRCUMSTANCES IT CANNOT BE SAID THAT THE AP PELLANT HAD A RIGHT TO RECEIVE THE PAYMENT. BY WAY OF COMPROMISE D ECREE THE APPELLANT WAS TO RETURN THE AMOUNT OF RS. 1 25 418 TO PARDESHI AND 10 WAS TO RECEIVE BACK HIS EARNEST MONEY OF RS. 50 000. T HE POSITION THEREFORE BOILS DOWN TO THIS THAT THE APPELLANT RETU RNED THE SALE PROCEEDS OF 17 PLOTS I.E. RS. 1 25 418 TO PARDESHI A ND THEREFORE THE SAID AMOUNT CANNOT BE ADDED IN THE DISCLOSED INCOME WHICH WAS INITIALLY SHOWN BY THE APPELLANT IN THE RETURN OF IN COME FOR THE YEAR 1981-82. IN THE CASE OF CIT V. HINDUSTAN HOUSING AND LAND DEVEL OPMENT TRUST LTD. [1986] 161 ITR 524 THE SUPREME COURT HAS HELD THAT THERE IS A CLEAR DISTINCTION BETWEEN THE RIGHT TO RECEIVE PAYME NT AS IN DISPUTE AND RIGHT TO RECEIVE PAYMENT AS ADMITTED. IN THE INST ANT CASE THE RIGHT TO RECEIVE PAYMENT WAS IN DISPUTE AND IN VIEW OF THE COMPROMISE DECREE IN FIRST APPEAL WHICH WAS PENDING BEFORE THE HIGH COURT AT BOMBAY THE APPELLANT WAS REQUIRED TO RETURN THE WHO LE OF THE SALE PROCEEDS OF RS. 1 25 418 TO THE LAND OWNER PARDESHI. WE THEREFORE ANSWER QUESTION NO. 2 IN FAVOUR OF THE APPELLANT AND AGAINST THE REVENUE. UNDER THE CIRCUMSTANCE THE JUDGMENT PASSED B Y THE TRIBUNAL IS LIABLE TO BE QUASHED AND SET ASIDE. IN THE RESULT THE TAX APPEAL FILED BY THE ASSESSEE IS AL LOWED. THE ORDER PASSED BY THE TRIBUNAL IS QUASHED AND SET ASIDE. THE ADDI TION OF RS. 98 818 MADE IN THE INCOME OF THE APPELLANT FOR THE ASSESSMENT YEAR 1981-82 BY THE RESPONDENT IS SET ASIDE FROM THE RETURN. NO ORDER AS TO COSTS. 8.3 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF B.G. SHIRKE CONSTRUCTION TECHNOLOGY PRIVATE LIMITED (SUP RA) HAS HELD AS UNDER : 21. IN ANY CASE THE JUDGMENT OF THE HON'BLE SUPREM E COURT IN THE CASE OF GOETZ (INDIA) LTD. (SUPRA) DOES NOT IMPINGE ON THE POWERS OF APPELLATE AUTHORITIES TO ENTERTAIN A FRESH CLAIM WHIC H WAS HITHERTO NOT PREFERRED BY THE ASSESSEE IN THE RETURN OF INCOME AS EXPLAINED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF JAI PARABOLI C SPRINGS LTD. (SUPRA). ACCORDINGLY THERE WAS NO IMPEDIMENT FOR TH E CIT(A) TO HAVE ENTERTAINED THE IMPUGNED CLAIM ESPECIALLY WHEN THE R EQUIRED FACTS TO ADJUDICATE THE CONTROVERSY WERE ALREADY ON RECORD. 8.4 IN VIEW OF THE ABOVE DECISIONS CITED (SUPRA) W E DEEM IT FIT AND PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH REGARDING THE CORRECT VALUE OF SALE CONSIDERATION I.E. RS.3 23 70 000/- OR RS.2 91 12 500/-. THE LD. CIT(A) SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. GROUND NOS. 2 AND 2.1 OF THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 11 9. GROUND OF APPEAL NO. 3 OF THE ASSESSEE READS AS UNDER: 3. THE LEARNED CIT(A) ERRED IN NOT ADMITTING THE A DDITIONAL EVIDENCE REGARDING EXEMPTION U/S. 54B OF RS.67 00 676 /- ON THE GROUND THAT THE SAID CLAIM WAS NOT MADE BY THE ASSESSEE IN THE RETURN OF INCOME. 9.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSES SEE IN ITS ADDITIONAL GROUND OF APPEAL BEFORE CIT(A) CONTENDED THAT THE EXEMPTION U/S 54B MAY BE ADDITIONALLY ALLOWED IN RESPECT OF PURCH ASE OF TWO MORE LANDS AT RS. 67 00 676/- WHICH WAS NOT CLAIMED BEF ORE THE A.O. THE LD.CIT(A) NOTICED THAT THE TOTAL AMOUNT OF INVESTME NT IN LAND FOR THE PURPOSES OF CARRYING OUT OF AGRICULTURAL OPERATIONS WAS RS.1 86 56 890/- WHICH WAS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME AND HAS ALSO BEEN ALLOWED. HOWEVER NOW THE ASSESSEE THROUGH THIS ADDITIONAL GROUND IS CONTENDING THAT T WO MORE AGRICULTURAL LANDS WERE PURCHASED FOR AN EXTRA AMOU NT. HE REFERRED TO THE WRITTEN SUBMISSION DATED 15.03.2010 BY THE ASSE SSEE WHICH READS AS UNDER : 'IN THIS CASE THE ASSESSEE HAS RAISED AN ADDITIONAL GROU ND OF APPEAL RELATING TO CLAIM OF EXEMPTION U/S 54B ON ACCOUNT OF PURCHASE OF FOLLOWING TWO AGRICULTURAL LANDS : S. NO. PARTICULARS DATE OF PURCHASE AMOUNT (RS.) 1 S. NO. 43/2/2 VILLAGE MANJARI PUNE 06.08.2007 19 40 400/- 2 S. NO. 43/2/2 & 43/3 VILLAGE MANJARI PUNE 06.08.2007 47 60 276/- THE ASSESSEE SUBMITS THAT THE ABOVE AGRICULTURAL LANDS WE RE PURCHASED BY THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBE D U/S 54B. HOWEVER IN THE RETURN OF INCOME THE EXEMPTION U/S 54B WAS NOT CLAIMED SINCE IT HAD CLAIMED THE EXEMPTION IN RESPECT OF THE LAND PURCHASED AT S.NO. 43/1B. HOWEVER IN THE ASST. ORDER THE LEARNED A.O. HAS NOT ACCEPTED THE CLAIM OF THE ASSESSEE REGARDIN G THE EXEMPTION U/S 54B IN RESPECT OF THE LAND AT S.NO. 43/ 1B AND HE HAS ALSO MADE ADDITION IN RESPECT OF THE COST OF ACQUISITIO N AS ON 01.04.1981. AS CLARIFIED ABOVE THE LEARNED A.O. DID NOT ASK THE ASSESSEE FOR JUSTIFICATION OF THE 01.04.1981 COST AND THE REFORE THE ASSESSEE WAS UNDER A BONA FIDE BELIEF THAT THE CLAIM OF THE FMV AT 12 RS.13.50/- WAS ACCEPTED BY THE A.O. IN VIEW OF THE AB OVE FACTS THE ASSESSEE DID NOT POINT OUT TO THE A.O. THAT HE HAD ALSO PURCHASED ADDITIONAL TWO AGRICULTURAL LANDS AND HENCE THE ASSESSE E HAS RAISED THE ADDITIONAL GROUND OF APPEAL FOR ALLOWING EXEMPT ION U/S 54B IN RESPECT OF THE ABOVE REFERRED LANDS. THE COPIES OF THE PURCHASE DEEDS ARE ENCLOSED HEREWITH AND THE SAID LANDS ARE AGRICULTU RAL LANDS AND BEING USED BY THE ASSESSEE ONLY FOR AGRICULTURAL PURPOSE S. THE COPY OF THE 7/12 EXTRACTS OF THE SAID LANDS ARE ENCLOSED HEREWI TH. THE ASSESSEE REQUESTS FOR ADMISSION OF ADDITIONAL GROUND OF AP PEAL AS WELL AS THE ADDITIONAL EVIDENCE SINCE THERE IS REASONA BLE CAUSE ON THE PART OF THE ASSESSEE IN NOT SUBMITTING IT AT THE ASST. LEV EL. IN THIS CONTEXT THE ASSESSEE PLACES RELIANCE ON THE DECISIONS RE FERRED IN PARA 5.3 OF THE SUBMISSIONS. THE ASSESSEE REITERATES THAT THE SAID LANDS PURCHASED ARE A GRICULTURAL LANDS AND EVEN AS ON DATE AGRICULTURAL OPERATIONS ARE BEING CARRIED OUT ON THE SAID LANDS. WE ALSO REQUEST YOUR HONOUR THAT YOU MAY DEPUTE ANY OF YOUR INSPECTORS FOR VISITING THE SITE. A S THE LANDS ARE AGRICULTURAL LANDS AND ARE BEING USED FOR AGRICULTURA L PURPOSES THE EXEMPTION U/S 54B MAY KINDLY BE ALLOWED. 7.1 FOR THIS PURPOSE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE HAS ALSO BEEN MADE VIDE LETTER DATED 15.03.2010 BEIN G THE PURCHASE DEED OF THESE TWO LANDS AND 7/12 EXTRACTS SHOWING THAT THESE PARTICULAR TWO PIECES OF LANDS WERE USED FOR AGRICULT URAL PURPOSES. 9.2 HOWEVER THE LD.CIT(A) WAS NOT SATISFIED WITH T HE ARGUMENTS ADVANCED BY THE ASSESSEE AND REJECTED THE SAME BY O BSERVING AS UNDER : 7.2 THE CLAIM OF THE ASSESSEE IS CONSIDERED CAREFULLY B UT NOT FOUND TO BE ACCEPTABLE. THIS IS AGAIN A SIMILAR ISSUE A S DECIDED BY GROUND NO. 4 RELATED TO THE CANCELLATION DEED BY V IRTUE OF WHICH THE ASSESSEE SOUGHT TO REDUCE THE CONSIDERATION FOR SALE OF LA ND WHICH HE HAD HIMSELF SHOWN IN THE RETURN OF INCOME. AGAIN HER E ALSO HE IS MAKING A CLAIM TO ENHANCE THE CLAIM U/S 54B BY AN AM OUNT OF RS.67 00 676/- WHICH IS OVER AND ABOVE THE AMOUNT OF RS.1 86 56 890/- WHICH HE HAD CLAIMED IN THE RETURN OF INCOME. CONSIDERING THE DISCUSSION MADE IN RESPECT OF GROUND NO . 4 AT PARA 5 TO 5.4 ABOVE BASED ON THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF GOETZ INDIA LTD. A CLAIM WHICH HAS NOT BEEN MADE IN THE RETURN OF INCOME OR BY WAY OF FILING REVISED RETURN CANNOT BE CONSIDERED AT THIS STAGE. IN FACT IT IS A CLAIM WHICH WAS NOT EVEN M ADE BEFORE THE A.O. AS WELL. RELYING ON THE SAME REASONING AND BASIS AS DISCUSSED IN RESPECT OF GROUND NO. 4 THE CONTENTION OF THE ASSESSEE IS NOT FOUND TO BE ACCEPTABLE AND THE ADDITIONAL EVIDENCE FURNISHED FOR THIS PURPOSE IS ALSO NOT ALLOWED TO BE ADMITTED AS NONE OF THE CON DITIONS GIVEN IN RULE 46A OF THE I.T. RULES HAVE BEEN FOUND TO BE FUL FILLED. THE ADDITIONAL GROUND OF APPEAL IS THEREFORE LIABLE TO BE DISMISSED. 9.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 13 10. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAV E ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND TH E LD. CIT(A) BASED ON THE DECISION OF THE HON'BLE APEX COURT IN THE CA SE OF GOETZ INDIA LTD. (SUPRA) HELD THAT A CLAIM WHICH HAS NOT BEEN MADE IN THE RETURN OF INCOME OR BY WAY OF FILING REVISED RETURN CANNOT BE CONSIDERED BY HIM. WE HAVE ALREADY DECIDED AN IDENTICAL ISSUE IN THE ASSESSEES GROUNDS OF APPEAL NOS. 2 AND 2.1. IN THE SAID GROU NDS WE HAVE RESTORED THE ISSUE TO THE FILE OF THE LD. CIT(A) WI TH A DIRECTION TO ENTERTAIN THE GROUND RAISED BY THE ASSESSEE BEFORE HIM. FOLLOWING THE SAME REASONING WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO ADJUDICATE THE GROUND RAISED BY TH E ASSESSEE BEFORE HIM. NEEDLESS TO SAY THE LD. CIT(A) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THIS GROUND OF APPEAL BY T HE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 11. GROUND NO. 4 BEING GENERAL IN NATURE IS DISMISS ED. 12. THE REMAINING GROUNDS BY THE REVENUE READ AS UN DER: 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GROSSLY ERR ED IN FAILING TO APPRECIATE THAT DEDUCTION U/S. 54B IS TO BE GIVEN ONLY ON PURCHASE OF LAND FOR BEING USED FOR AGRICULTURAL PURPOSE WHERE AS IN THE PRESENT CASE THE ASSESSEES ACTIVITIES CONSIST OF REAL ESTATE AGENT AND PETROLEUM PRODUCT DEALERSHIP WHICH WOULD CLEARLY IN DICATE THAT THE ASSESSEES PURPOSE IN PURCHASING THE LAND WAS NOT TO CARRY AGRICULTURAL ACTIVITY. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) GROSSLY ERR ED IN FAILING TO APPRECIATE THAT THE INTENTION OF THE LEGISLATURE IN PROVIDING DEDUCTION U/S. 54B IS TO ALLOW THE SAID DEDUCTION TO A N AGRICULTURIST WHO SELLS HIS LAND AND BUYS ANOTHER PIECE OF LAND; AND NOT TO A PERSON WHO DEALS IN REAL ESTATE AND WHO BUYS LAND LET IT B E AN AGRICULTURAL LAND AT ONE POINT TO TIME TO SELL AT A LATER POINT OF TIME TO EARN PROFIT. 14 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FAILED TO TAKE NOTE OF THE FACT THAT THE SELLER OF THE IMPUGNED LAND HAD SH OWN CAPITAL GAIN ON TRANSFER OF THE SAID LAND BY CONSIDERING IT AS AN URBAN PROPERTY WHICH WOULD CLEARLY INDICATE THAT THE LAND WAS NOT MEANT T O BE USED FOR AGRICULTURAL PURPOSE. 12.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE CLAIMED EXEMPTION U/S. 54B(1) TO THE TUNE OF RS.1 86 56 890 /- BEING RE- INVESTMENT IN AGRICULTURAL LAND WHICH FALLS WITHIN 8 KMS FROM THE MUNICIPAL LIMITS. THE ASSESSING OFFICER OBSERVED T HAT THE PURCHASED LAND DOES NOT FALL WITHIN THE AMBIT OF AGRICULTURAL LAND. HE REJECTED THE CLAIM OF THE ASSESSEE THAT HE HAS PURCHASED AGR ICULTURAL LAND AND WAS PERFORMING AGRICULTURAL ACTIVITY ON THE SAID LA ND AND THE CONDITIONS U/S. 54B ARE SATISFIED. REJECTING THE V ARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE THE ASSESSING OFFICER DISALLO WED THE CLAIM OF DEDUCTION U/S. 54B. 12.2 IN APPEAL THE LD. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY OBSERVING AS UNDER: 4.3. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLAN T AND MATERIAL AVAILABLE ON RECORD. THE PROVISIONS OF SECTIO N 54B MAKE IT CLEAR THAT WHEN THE CAPITAL GAINS IS ARISING FROM THE SALE OF LAND WHICH WAS BEING USED FOR AGRICULTURAL PURPOSES UPTO TWO YEARS BEFORE THE DATE OF SALE AND IF THE APPELLANT HAS WITHIN A PERI OD OF TWO YEARS FROM THAT DATE PURCHASED ANY OTHER LAND FOR BEING USED FOR AGRICULTURAL PURPOSES THEN THE EXEMPTION U/S 54B IS TO BE GRANTED A S PER THIS SECTION. THEREFORE IT IS PROVIDED THAT THE LAND TO BE PURCHASED WAS FOR BEING USED FOR AGRICULTURAL PURPOSES. IT HAS BEEN CLARI FIED BY THE APPELLANT BEFORE THE A.O. AS WELL AS DURING THE APPEL LATE PROCEEDINGS THAT THIS LAND WAS ACTUALLY BEING USED FOR AGRICULTUR AL PURPOSES EVEN AFTERWARDS AND TILL DATE FOR WHICH THE RELEVANT 7/ 12 EXTRACTS WERE ALSO FILED DURING THE ASSESSMENT PROCEEDINGS. SECONDLY T HE A.O. HAS RELIED UPON SECTION 2(14) WHICH PROVIDES FOR THE DEF INITION OF CAPITAL ASSET AND SECTION 2(14)(III) SPECIFIES AS TO WHAT DOES NO T CONSTITUTE A CAPITAL ASSET. THIS DEFINITION MAKES IT CLEAR THAT THE AGRICULTURAL LAND IN INDIA IS TO BE CONSIDERED AS CAPITAL ASSET ONLY IF IT IS LOCATED WITHIN THE DISTANCE OF 8 KMS FROM THE LIMITS OF THE MUNICIPALITY OR CANTONMENT BOARD. THEREFORE THE A.O. HAS OBVIOUSLY MIXED UP TH IS DEFINITION OF CAPITAL ASSET U/S. 2(14) AS AGAINST THE PROVISIONS OF SEC TION 54B WHICH ONLY PROVIDES THAT THE LAND SHOULD BE PURCHASED FOR C ARRYING OUT AGRICULTURAL OPERATIONS. THE DOCUMENTS FURNISHED BEFOR E THE A.O. 15 BEING PURCHASE DEED OF THE LAND AS WELL AS THE 7/12 EX TRACTS SHOWED THAT THE LAND PURCHASED WAS ACTUALLY BEING UTILISED FO R AGRICULTURAL PURPOSES DURING THE YEAR UNDER CONSIDERATION AND EVEN AFTERWARDS. THIS MAKES IT ABUNDANTLY CLEAR THAT THE CONDITIONS GIV EN IN SECTION 54B ARE SATISFIED. THE DISALLOWANCE OF CLAIM U/S. 54B IS THEREFORE NOT FOUND TO BE TENABLE IN LAW AND THE SAME IS DIRECTED T O BE ALLOWED. THE GROUNDS OF APPEAL NOS. 3 TO 3C ARE ACCORDINGLY ALLOW ED. 12.3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE RE VENUE IS IN APPEAL BEFORE US. 13. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THE LD . DR COULD NOT CONTROVERT THE FINDING GIVEN BY THE LD. CIT(A) THAT THE ASSESSEE HAD SUBMITTED BEFORE THE ASSESSING OFFICER AS WELL AS B EFORE HIM THAT THIS LAND WAS ACTUALLY USED FOR AGRICULTURAL PURPOSE EVE N AFTERWARDS AND TILL DATE AND THAT THE 7/12 EXTRACTS WERE ALSO FILE D DURING THE ASSESSMENT PROCEEDINGS. THE LD. DR ALSO COULD NOT CONTROVERT THE FINDING GIVEN BY THE CIT(A) THAT THE ASSESSEE FULFI LS THE CONDITIONS GIVEN IN SEC. 54B. IN ABSENCE OF ANY CONTRARY MATE RIAL BROUGHT TO OUR NOTICE BY THE LD. DR AGAINST THE ORDER OF THE CIT(A ) WE FIND NO INFIRMITY IN THE SAME WHICH IN OUR OPINION IS A REA SONED ONE. ACCORDINGLY THE ORDER OF LD.CIT(A) IS UPHELD ON TH IS ISSUE AND THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 14. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE AS WELL AS REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES . PRONOUNCED IN THE OPEN COURT ON 10-04-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 10 TH APRIL 2014 RK/SATISH 16 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II PUNE 4. THE CIT-II PUNE 5. D.R. A BENCH PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE