TMI Blog2013 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... at which is situated more than 8 kms away from the limits of Alandur Municipality. We have found that the land has been agricultural land for the past many years and has been classified as such in the records of the revenue Department. The assessee has paid kist of Rs. 400/- each in respect of land on 30.1.2007 regarding fasli years 1413, 1414, 1415 and 1416. It was brought on record that this land was being cultivated by one local person, namely Shri Murugan, but for assessment years 2005-06 and 2006-07, agricultural operations were carried out by him, he could not get food returns and that is why he did not admit any agricultural income in the returns filed. The report of the Tahsildar refers to noncultivation of the land because an agricultural operation in a large scale was not carried out on this land. - Decided against the revenue. - I.T.A No.1581/Mds/2010 - - - Dated:- 20-1-2011 - Dr. O. K. Narayanan And Shri Hari Om Maratha,JJ. For the Appellant : Shri K. E. B Rengarajan, Jr. Standing Counsel For the Respondent : Dr. Anita Sumanth ORDER Per Hari Om Maratha, Judicial Member:- This appeal of the Revenue, for assessment year 2007-08, is directed agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l land, have been examined. As per section 45 of the l T.Act, any profits or gains arising from the transfer of a capital asset effected in the previous year shall be deemed to be the income of the previous year in which the transfer took place and the income is assessable under the head Capital Gains. Section 2(14) of the Income tax Act, 1961 defines "capital asset" as under:- "capital asset" means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession; (ii) personal effects, that is to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, (iii) agricultural land in India, not being land situate (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnished any evidence to prove that the land sold was agricultural land, and the Tahzildar had certified that the land in question were remaining vacant during the above period, assessee was asked by the Assessing Officer to furnish his explanation. 4. Before the ld. CIT(A), the assessee s AR filed certain fresh documents and the detailed written submissions. After considering the rival stand, the ld. CIT(A) has finally held that the land sold by the assessee is agricultural land and not a capital asset . So, he has ordered to delete the impugned addition. The only issue involved is regarding the character of the piece of land sold by the assessee. The assessee treats it as an agricultural land as against held by the Assessing Officer as a capital asset . At the very outset, we may mention that though the definition of agricultural land has not been given in the Act, but the definition of capital asset given in section 2(14) expressly and explicitly excludes an agricultural land in India . In such case, there is no requirement that the land should be under cultivation at the time of the sale. Few tests as laid down by the Hon'ble Courts to determine whether the land i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to fresh evidence and written submission was sent vide her letter dated 06.04.2010, which reads as under: "The point raised by the assessee that the lands sold by him are situated beyond 8 km from the outer limit of a notified municipality, and that therefore the gains on sale of the lands are not to be treated as capital gains in terms of section 45 of the Income- tax Act 1961. In support of this claim/ the assessee has filed a certificate from the Village Administrative Officer of Ayyappanthangal village within whose jurisdiction the impugned lands situate. Enquiries have been made with the Village Administrative Officer and a statement has been recorded from him. It is confirmed by the Village Administrative Officer that the lands in question are beyond 8 km from the outer limits of St. Thomas I Mount Cantonment Board, and more than 10 km from the outer limit of Alandur Municipality. To a question as to know he had issued a certificate about the locations of the land and the distance between the said land and the nearest notified municipality, he has deposed that he had physically measured the distance from the point at which the outer limit of the St. Thomas Mount Cant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that as per revenue records, the land has been recorded as agricultural land. It is found to be a fact that the assessee has been showing agricultural income from this very land and the same has been accepted by the Revenue as such year after year. The land was purchased by the assessee and at that time it was low lying as some mud was taken from it for making bricks etc. But admittedly after purchase, no such activity was carried out on this land. Even if we accept the contention of the Revenue that no agricultural production was done by the assessee on this land, this mere fact will not take out the land out of the nomenclature of agricultural land . The assessee grows coconut on this land and the same are sold in the market and these receipts are treated as agricultural receipts by the Revenue. The assessee has also paid agricultural land tax and copies of the same were made available to the authorities. The land in question is situated in the revenue estate of a Village named Iyyappanthangal Panchayat which is situated more than 8 kms away from the limits of Alandur Municipality. We have found that the land has been agricultural land for the past many years and has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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