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2022 (7) TMI 887 - ITAT MUMBAILTCG on sale of agricultural land - Nature of land sold - agricultural land or capital asset u/s 2(14) - whether the land sold by the assessee was in the nature of the agricultural land exempted from the definition of the capital asset liable for long-term capital gain? - HELD THAT:- One of the conditions for excluding the land from the definition of the capital asset is that said land should be agriculture land in India not being land situated within prescribed limit from the municipal Corporation as per section 2(14)(iii) of the Act. During relevant time said distance was prescribed at 8kms from the outer limit of the municipal Corporation . The term “ agriculture” has not been defined in the Act and various courts from time to time has explained as what constitutes “agriculture”. The Hon’ble Supreme Court in the case of Smt. Sarifabibi Mohmed Ibrahim (1993 (9) TMI 10 - SUPREME COURT] has approved the decision of a division Bench of the Hon’ble Gujrat High Court in the case of CIT Vs Siddharth J Desai (1981 (9) TMI 48 - GUJARAT HIGH COURT] and has led down 13 test or factors which are required to be considered and upon consideration of which, the question whether the land is agricultural or not, has got to be decided or answered. We find that before the lower authorities, the assessee has not filed any evidence in support for justifying whether the land was situated beyond the 8 km from the outer limits of the municipal Corporation or satisfies the test laid down in the case of Sarifabibi (supra). As the question of distance of the land sold from the outer limit of the Municipal Corporation and other 13 test laid down in the case of the Sarifabibi (supra), which goes to the root of the question whether the land of the assessee is agricultural land, beyond the outer limit of the multiple Corporation, were not raised specifically by the lower authorities, therefore in the fact and circumstances of the case and in the interest of substantial justice, we feel it appropriate to restore this issue to the file of the Assessing Officer for deciding afresh - Appeal of the assessee is allowed for statistical purposes.
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