TMI Blog2013 (12) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn, has arisen from an order dated 22.12.2010 passed by the Assessing Officer, u/s 143(3) of the Income-tax Act, 1961 (in short the Act ), pertaining to the assessment year 2008-09. 2. Although, the Revenue has raised multiple Grounds of Appeal but the solitary issue raised is with regard to the action of the CIT(A) in holding that the land in question sold by the assessee was not a capital asset within the meaning of section 2(14)(iii)(b) of the Act and thus the surplus on sale of such land was not liable to be taxed as capital gains . 3. In brief, the facts are that assessee is an individual, who had purchased agricultural land located at Urawade Tal. Mulshi, admeasuring 3 Hector 19 Aar having Gat No. 794 for a sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an agricultural zone; (b) Land Revenue records showing that the land was agricultural land; (c) copies of 7/12 extract for the period 2001-02 to 2009-10 showing cultivation of land and taking of crops; and, (d) land revenue payment receipts from the date of purchase of land in 1993 till the date of sale. It was also pointed out before the Assessing Officer that assessee had never sought permission from the date of purchase till the sale for conversion of the land to any non-agricultural use. The Assessing Officer, however, disagreed with the aforesaid point of the assessee. The Assessing Officer was of the view that the 7/12 extract indicated that only grass was grown between the period 2001-02 to 2009-10 and therefore according to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nverted into nonagricultural land till it was sold out; and, (viii) that on the date of purchase as well as on the date of sale, the land was an agricultural land. 6. Apart therefrom, assessee relied on the judgment of the Hon ble Bombay High Court in the case Smt. Debbie Alemao, Joaquim Alemao (2011) 331 ITR 59 (Bom) for the proposition that so long as the land was shown in the State revenue records as agricultural land and no permission was ever obtained for non-agricultural use by the assessee, it has to be treated as an agricultural land. Assessee also relied on the judgment of the Hon ble Supreme Court in the case of Sarifabibi Mohd Ibrahim and others vs. CIT, 204 ITR 631 (SC) and demonstrated that if the thirteen tests laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd considered by the CIT(A) in coming to conclude that land in question was not a capital asset within the meaning of section 2(14)(iii) of the Act. 10. We have carefully considered the rival submissions. The crux of the controversy before us relates to considering whether the land in question falls within the definition of a capital asset u/s 2(14) of the Act. The claim of the assessee is that the land in question is an agricultural land located at distance which is beyond 8 kilometers from the local limits of any municipality and population of the village in which such land is situated is less than ten thousand and therefore, it qualifies to be an agricultural land which is excludible from the expression capital asset as per clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the land was shown in the Land revenue records as used for agricultural purposes and no permission was obtained for non-agricultural use by the assessee. The Hon ble High Court considered the plea of the Revenue that the land was not actually used for agricultural purpose as no agricultural income was declared and rejected it in view of the Land revenue records and the land was held to be agricultural land. Similarly, the Delhi Bench of the Tribunal in the case of Lavleen Singhai vs. DCIT (2007) 111 TTJ 326 (Del) observed that where a land is recognized as agricultural land in Land revenue records at the time of purchase by the assessee and nothing has been done by the assessee for putting it to non-agricultural use, the same could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not denied that no agricultural operations were ever carried out on the said land, it was only been objected on the ground that during the last 2 years no agricultural crops were grown and when the cattle feed i.e. grass was started to have been grown. Therefore, the land which is agricultural for the past 11 years could not become non-agricultural only because no agricultural operations were carried out during the last two years. 13. In our considered opinion, no error has been made by the CIT(A) in holding that on account of the objection of the Assessing Officer the land in question could not become non-agricultural land. Another aspect which is of relevance in the present situation is that assessee pointed out that the land in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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