TMI Blog2001 (5) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... aper book filed on behalf of the assessee. I have also gone through the case law cited by Shri G.N. Gadgil on behalf of the assessee. 3. The real facts of the dispute under consideration are very simple. The assessee owned agricultural land at Sancoale, Goa. She sold an elevated agricultural land to M/s. Zuari Agro Chemicals Ltd. it appears that the assessee is still the owner of low level agricultural land. By virtue of owning a low-level agricultural I and a pond is located in her land. The said pond gets filled with the water in the monsoon from year to year. However, it was informed at the time of argument that water never dries up in the said pond located in the agricultural land of the assessee. 4. M/s. Zuari Agro Chemicals Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral operations shall not stiffer in any way for want of water. You will also strictly ensure that no nuisance shall be caused or committed on the land by your agents or servants and that they shall not interfere with the fruit or yield on that land. 3. To compensate the loss caused owing to less use of water by me, for the reason for having allowed you to take the water for your use, it is agreed that you will pay me a lump sum amount which in no case be less than Rs. 2,85,000 (Rupees Two Lakhs Eighty Five Thousand Only) payable in mutually agreed instalments. 4. This agreement shall be for one year effective 1st January, 1984 to 31st December, 1984, subject to the water in the pond getting dried up owing to the summer earlier. 5. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there should be transfer in respect of sale or gift in the sale deed or gift deed. But water in the pond cannot be registered under a sale deed or gift deed. The only common factor is that consideration has to be received for transfer of immovable property and consideration has been received for allowing to fetch the water from the pond located in the agricultural lands of the assessee to M/s. ZACL. 7. Another argument advanced on behalf of the assessee was that if the water in the pond is treated as immovable agricultural property, then the property is of capital nature. Therefore, any receipt on account of allowing to fetch water from the pond also becomes a capital receipt and not taxable. To treat the consideration a capital recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of water by Spencers from the assessee's domestic well. At the same time there was no thought in any one's mind about the payment for the water. There was no proposal, consideration and acceptance in the case of M. Ramalakshmi Reddy at p. 416. That is not so in the instant appeal. In the case of Bombay Burmah Trading Corpn acquisition of forest-lands by the Government of Burma was involved. The acquisition of forest land was a source of the profit making apparatus of the assessee. That was a capital asset, which was acquired. That was treated as stock in trade and no capital receipts arose. The assessee in the present case treated the water in the pond as stock in trade. Hence, the judgment of the Supreme Court is distinguishable on facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was intent upon building a family residence and running her family in it and who had no thought of running business of any sort of her own. The receipt was a casual and non-recurring receipt and, hence, not taxable. in the instant appeal the receipt is recurring against the sale of water from the pond. Moreover, there was no intention on the part of the assessee to run any business, In the instant appeal the appellant had an intention to allow the water to be fetched continuously from the pond located in her agricultural land against a consideration and therefore, the judgment of Madras High Court is not applicable to the facts of the case. 12. The learned DR Shri R.K. Gupta relied on the judgment of Supreme Court in the case of V. Venug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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