JUDGMENT

K.S. Jhaver, J. —In all these appeals common question of law and facts are involved hence they are decided by this common judgment.

2. By way of appeal No. 20/2016, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal of the assessee. In appeal No. 118/2017, the tribunal has partly allowed the appeal filed by the assessee and in appeal No. 136/2017, the tribunal has partly allowed the appeal of the assessee.

3. This court while admitting the appeals framed following substantial questions of law:-

Appeal No. 20/2016 admitted on 25.03.2017

"Whether the Income Tax Appellate Tribunal, Jaipur was justified in law in upholding the order passed by the respondent under Section 263, when the original assessment order was passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961, after due verification of all the documents on record which is merely change of opinion and nothing else? "

Appeal No. 118/2016 admitted on 17.05.2017

"Whether the Ld. ITAT was justified in disallowing the exemption under Section 54B of the act without appreciating that the funds utilized for the investment for purchase of the property eligible under Section 54B belonged to the Appellant only and merely the registered document was executed in the name of the wife and further, the wife had no separate source of income? "

Appeal No. 136/2017 admitted on 19.5.2017

"Whether the Ld. ITAT was justified in disallowing the exemption under Section 54B of the act without appreciating that the funds utilized for the investment for purchase of the property eligible under Section 54B belonged to the Appellant only and merely the registered document was executed in the name of the wife and further, the wife had no separate source of income? "

4. The facts of the case are that the assessee filed its return of income on 24.08.2009 declaring total income of Rs. 2,18,610/- which includes income from long term capital gain on sale of agricultural land at Rs. 31,500/-. The assessment was completed under section 143(3) dated 05.10.2011 at total income of Rs. 3,87,830/- by assessing the income from long term capital gain at Rs. 2,00,219/-. For enhancing the income under the head long term capital gain, the AO observed that (i) sales consideration of the land as per the provision of section 50C is Rs. 55,13,599/- as against Rs. 55.00 lacs claimed by the assessee (ii) the assessee has claimed brokerage expenses of Rs. 1 lacs but has failed to prove the source of it (iii) the assessee has claimed deduction under section 54B at Rs. 43,50,000/- which includes Rs. 11 lacs incurred on construction of boring & pipe, rooms, boundary walls and stamp duty but has proved the source of Rs. 10,44,880/- only. The AO finally assessed total income at Rs. 3,87,330/- which includes salary income of Rs. 2,12,340, capital gain of Rs. 2,00,219/- and income from other sources at Rs. 47,817/-. The ld. CIT-II, Jaipur had examined the assessment and found that the order of the AO dated 5-10-2011 is erroneous and prejudicial to the interest of Revenue.

5. Counsel for the appellant has taken us to the provisions of Section 54B & 54F which reads as under:-

"54B. (1) Subject to the provisions of sub-section (2), where the capital gain arises from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee being an individual or his parent, or a Hindu undivided family for agricultural purposes (hereinafter referred to as the original asset), and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,-

(i) if the amount of the capit