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TMI Blog2014 (10) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals) - I, Kochi arising out of the assessment orders passed for the assessment years 2008-2009 and 2009-10. 2. The appellants were joint owners of a plot of land having an extent of 222.93 cents in R.S.No.45/3 of Kottakkal Amsom Desom and they sold it to Sri.Abdu Haji, who constructed on it a commercial complex by name "Smart Trade City". Subsequently, on 9/7/2008, the Department carried out search and seizure operations in the case of M/s.Smart Trade City, during the course of which, sale agreement dated 13/1/2006 entered into between the appellants and Sri.Abdu Haji for the sale of the property mentioned above was seized. The agreement revealed that the property was agreed to be sold at a sale consideration of Rs. 3,27,500/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.17 cents was sold to Sri.Abdu Haji, Sri.Abdul Khader and Sri.Ummer Haji vide sale deed No.1933/2008 dated 12/5/2008 for a total consideration of Rs. 8,95,000/-. On the finding that these properties were located adjacent to 222.93 cents mentioned above, in the case of these properties also, the assessing officer adopted Rs. 3,27,500/- per cent as the sale consideration and on that basis, the long term capital gain was computed in the assessment year 2009-10. Here also, the contention that the properties were agricultural land was rejected and capital gain was allocated in the hands of the assessees in proportion to the shares held by them. 5. All the assessees challenged the assessment orders by filing appeals before the Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22.93 cents mentioned above. This was accepted by the appellate authority but however the appellate authority confirmed the action of the assessing officer in adopting Rs. 3,27,500/- per cent as the sale consideration in respect of 32.19 cents of land. Before the First Appellate Authority the assessees also disputed the adoption of Rs. 100/- per cent as the market value as on 01/4/1981. However, the First Appellate Authority found that this determination was on the basis of the information collected about the comparative sale from the Sub Registrar's Office and also for the reason that the assesses did not furnish any other evidence to contradict the value determined, the First Appellate Authority upheld the rate of Rs. 100/- per cent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination as to whether the impugned land was agricultural or not and is correct in law?" 4. "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in inferring that the use of a portion of the land (50 cents out of 222.93 cents) temporarily for a non- agricultural purpose alters the character of the entire land from agricultural to non-agricultural to render it liable for capital gains tax on its sale?" 9. Before this Court, the only contention urged was that the finding that the land was not an agricultural land is incorrect and against the evidence on record. Answer to this question would determine whether the computation of long term capital gain and the consequent assessment of tax was legal or not. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down by the Gujarat High Court in Rasiklal Chimanlal Nagri v. CWT (56 ITR 608). Accordingly, the situation of the land and its surroundings, physical characteristics of the land, the intention of the owner as gathered from the relevant circumstances, environment and situation of land, the previous, present and future use to which the land is put and the intention of the assessees at the time of sale were also appreciated by the lower authorities. Proceeding further, the question was again examined in the light of the judgment of the Apex Court in CWT v. Officer-in-Charge (Court of Wards) (105 ITR 133) and considering the condition of the land and the intention of the owners and such other tests also, the lower authorities have concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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