assessee has preferred this appeal against order dt. 5th May, 1984 of Shri P. N. Pathak, AAC of IT. A-Range, Indore, who dismissed appeal against order dt. 19th March, 1984 of Shri S. S. Puri, ITO, Dewas. relevant facts, in brief, are that assessee is individual. previous year relevant for asst. yr. 1981-82 is ending Diwali 1980 (7th Nov., 1980). assessee is not maintaining books of accounts. source of income is from self-occupied property, long term capital gains and commission. assessee filed return of income. During course of assessment proceedings ITO found that assessee has sold agricultural land measuring 3.03 acres in are to his brother-in-law which he held as non-genuine transaction for reasons mentioned in his order. ITO has further observed in his order that purchasers are banamidars. Therefore, he made protective assessment in case. In appeal AAC upheld action of ITO, reliance was placed on decision in case of Jagannath Hamnumanbux vs. CIT (1957) 31 ITR 603 (Cal) and in case of Lalji Haridas vs. ITO (1961) 43 ITR 387 (Cal). assessee being further aggrieved has preferred this appeal. Shri M. C. Mehta, ld. counsel for assessee, contends that AAC erred in holding that protective assessment order passed by ITO is proper in view of facts that land is agricultural land which was sold by assessee vide registered sale deed and sale consideration received thereof. Moreover, onus is on Revenue to prove sale as benami; which Revenue has failed to prove that capital gains as declared by petitioner, if at all to be assessed in his hands, there are to be on substantive basis in view of fact that ITO has nowhere made substantive assessment so far: that AAC has erred in not allowing exemption under s. 54B as claimed: that in view of decision of Hon ble Bombay High Court in case of Manubhai A. Sheth & Ors. vs. N. D. Nirgudkar, 2nd & Ors. (1981) 22 CTR (Bom) 41: (1981) 128 ITR 87 (Bom), sale of agricultural land is not subject matter of capital gains tax. Reliance is also placed on decision of case of Hirji Bhawanji Vidisha vs. ITO ITA No. 1185/Ind/83; dt 28th June, 1985. Reliance is also placed on paper book containing pp. 1 to 10. ld. counsel has stated at bar that ground Nos. 3 and 4 are not pressed. On other hand, Shri J. K. Goyal, ld. Departmental Representative , contends that impugned order is justified and, therefore, calls for no interference. Reliance is placed on orders of authorities below. I have heard rival contentions and have gone through record before me. It is settled law that it is for alleger to prove that sale is benami. In this case onus is on Department to prove that sale of agricultural land by assessee to his brother-in-laws is benami which Department has failed to prove. order of ITO shows that he has taken sale of agricultural land as benami on ground of suspicion and doubts. Therefore, ITO has failed to prove that purchasers are benamidars of seller (assessee). Furthermore, ITO had made assessment in case of assessee on protective basis, but on questioning by Bench, Departmental Representative has not shown or proved that main assessment has been made so far by ITO anywhere which further proves that action of ITO is unjustified for making protective assessment on ground that sale of agricultural land in dispute is benami. There is material on record that sale is made by assessee of agricultural land to his brother-in-laws for consideration under registered sale deed. Therefore, payment of consideration by purchaser to seller is also proved, being receipt of sale consideration certified by Sub-Registrar. In view of above discussion and reasons, I hold that Department has not proved sale of agricultural land by assessee to his brother-in-laws as benami, rather documentary evidence is there that sale is genuine as is evident from paper book from pp. 9 to 10 which is registered sale deed of sale of agricultural land in dispute, moreover Department has not collected any material to prove that sale consideration has actually come from assessee. In case Manubhai A. Sheth & Others vs. N. D. Nirgudkar, Second ITO (supra) there Lordships of Bombay High Court held that sale of agricultural land is not subject matter of capital gains tax. Tribunal, Indore Bench, following it has also taken view in case of Heerji Bhawanji Vidisha vs. ITO (ITA. No. 1185/Ind/83(, that sale of agricultural land is not subject matter of capital gains tax. Therefore, following these decisions with respect, I hold that sale of agricultural land in dispute is not subject matter of capital gains tax. In view of aforesaid findings, ground No. 1 is allowed holding further that ground No. 2 is infructuous in view of above finding, Ground Nos. 1 & 2 of appeal are hereinafter reproduced: "(1) petitioner submits that ld. AAC erred in holding that protective assessment order passed by ld. ITO is proper. It is submitted that capital gains having arisen to him due to sale of land to his brother-in-law which is duly registered and sale consideration having been received, capital gain as declared requires to be assessed in his hands. That question regarding capital gains on sale of these lands by purchaser in smaller plots was not point as issue is this assessment year. It is, therefore, prayed that capital gains as declared by petitioner require to be assessed in his hands no substantive basis. petitioner submits that ld. AAC erred in not allowing exemption under s. 54-B as claimed. It is submitted that petitioner has already satisfied conditions for exemption under s. 54-B by purchase of agricultural lands in excess of amount of sale consideration sold during year, within period allowed. It is, herefore, prayed that exemption under s. 54-B be allowed to him." As assessee s counsel has not pressed ground Nos. 3 and 4 of memorandum of appeal, therefore, they are rejected being not pressed. In result, appeal is allowed partly. *** RAJENDRA PRASAD BADRILAL KESERA v. INCOME TAX OFFICER