Hari Om Maratha, Judicial Member - This appeal of the assessee for A.Y. 2009-10 is directed against the order of ld. CIT(A), Bikaner, dated 30/01/2013.

2. Briefly stated, the facts of the case are that the assessee, as individual, filed his Return of Income (Return of Income [ROI]) for A.Y. 2008-09 on 10/12/2009 declaring total income of Rs. 1,09,590/- from trading in the retail items. He has declared profit under section 44AF. During the year, the assessee sold a piece of agricultural land for a consideration of Rs. 65,29,000/- on 31/03/2009 to M/s.Khakhi Baba Colonizers & Developers Pvt. Ltd., Nokha. The assessee has claimed deduction u/s 54B of the Act in respect of sale proceeds. The assessee has claimed that he has purchased another agricultural land in the name of his wife Smt. Pushpa Devi for a consideration of Rs. 40 lakhs on 27/06/2008 and has paid a stamp duty of Rs. 2,85,250/- thereon. He has stated that the agricultural land which he sold was purchased in the year 1996 for Rs. 94,500/- and incurred a sum of Rs. 6 lakh on its development and fencing before sale. After seeking and considering the explanation as to why the benefit of Section 54B should be extended to the assessee the A.O. has finally computed the L.T.C. Gains at Rs. 61,52,150/- by adopting the indexed cost of the agricultural land sold at Rs. 3,92,850/-. He has, thus, added a sum of Rs. 61,52,150/- to assessee's declared income as LTCG. Before the Appellate Tribunal, as two additional legal grounds have been raised as under :—

"That Authorities below erred in law and in facts while treated that agricultural land sold by the appellant as capital assets within the meaning of definition u/s 2(14) of the I.T. Act particularly when said agriculture land is situated outside the municipality limit of Nokha and also not covered within 8 KM from the notified area (Bikaner), in the facts and circumstances of the case."

3. We have admitted the above ground which goes to the very root of this case and it was not resisted from other side. This ground shall be read as ground Nos. 2 and 3 of this appeal. The above grounds are purely legal grounds for which no further investigation of fact is required. After hearing both sides we have found it for a fact from the records including the assessment order, that the assessee chose to declare his income from trading business u/s 44AF, at Rs. 1,09,590/-and that the assessee had himself filed a computation of capital gains and has treated it as non taxable after squaring up its effect by claiming deduction u/s 54B as another piece of land is stated to have been purchased out of the sale proceeds in the name of his wife. The A.O. did not find him eligible u/s 54B only because the land was purchased in his wife's name, and therefore, he has made this addition.

4. Before us, seemingly, on the advice of his authorised representative, the assessee became more intelligent and has taken the above stated additional grounds which may absolves him from any tax liability qua the sale proceeds in question. During the course of assessment proceedings the assessee's Authorised Representative filed a written submission on 01/09/2011 stating as under :—

"The assessee has sold agriculture land during the year of Rs. 65,29,000/- and which was purchased by the assessee in the year 1996 of Rs. 94,500/- being cost of land and sum of Rs. 6,00,000/-was incurred on account of development and fencing charge before sale of land and copy of details of expenditure incurred by the assessee being a agriculture land beyond the Municipal Limit as per certificate enclosed, hence said land exempt from tax u/s 2(10) of the I.T. Act, 1961."

In this regard the A.O. also gathered information u/s 133(6) of the Act from the Tehsildar Nokha vide letter dated 28/09/2011. The Tehsildar, Nokha vide letter dated 17/10/2011 informed that distance of such land is 250 Meters away from the territorial jurisdiction of the Municipality, Nokha. The additional ground is rested