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TMI Blog2012 (10) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial questions of law:- "a) Whether on the facts and in law, the order of the Hon'ble ITAT is justified in holding the land situated in Village Karoran as agricultural land and the income on sale of said land consisting of carved out plots falling within the area covered by residential houses, roads, common pathways, parks, shops/booths, indicating organized land development activity, is Long Term Capital Gain and not income from business and profession? b) Whether on the facts and in law, the order of the Hon'ble ITAT is justified in holding that the land situated in Village Karoran, Nayagaon is agricultural land by ignoring the notification of the Governor to constitute a Nagar Panchayat Nayagaon on 12.9.2005 declaring the said land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sulted in a business activity or amounted to capital gain as claimed by the assessee. 4. There is no strait-jacket formula for concluding whether the transaction would fall within the domain of 'profits derived from an adventure in the nature of trade' or outside its ambit. The facts and circumstances of each case would be determinative of the character of the receipt. The primary consideration in such cases relates to examining the nature of the transaction. Where a person invests money in land with intention to hold the asset, enjoys its usufruct for some time and then sells it at enhanced price, it would be a case of capital accretion outside the scope of profits resulting from an adventure in the nature of trade. On the other hand, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the evidence perused by us, the nature of land being agricultural land stands established; a) as the said land was part of notified forest area where admittedly no other activities except agricultural, if allowed, could be carried out; b) Girdawari of the landholdings of the assessee proves the stand of the assessee that it was agricultural land and also the notification issued for the urban usage/non-agricultural activities certifies that prior to its notification the said land was used for agricultural purposes. The land being registered in Land Revenue Records as Agricultural land, then there is no basis for holding the said land and as not agricultural land. We find support from the ratio laid down by the Chandigarh Bench of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the department wanted to show that the entry was wrong, it should have given concrete facts in that direction. For example, it could have shown that the land lay within the municipal limits of the town of Ranchi or that the assessee had made his entire plot of land into parcels and was selling each one of them for the purpose of constructing a house thereof. The fact that the purchaser has purchased it for the purpose of constructing his house has no relevance because so far as the seller is concerned, he will be deemed to have parted with the agricultural land in the form of agricultural land, unless it is proved otherwise. The department has not brought up any such material on the record by which it could be said that the criteria ado ..... X X X X Extracts X X X X X X X X Extracts X X X X
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