TMI Blog2013 (1) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 65,213/-. The notice u/s. 143(2) was issued to the assessee and also certain information called by issuing notice u/s.142(1) of the IT Act. During the year under consideration, the assessee sold the following properties: Sr. No. Details of sale deed Sale price and date of sale Purchase price dated of purchase 1 Document no. 4878/2008, Village Soyla, SurveyNo. 313 ₹ 70,25,760/- Dated: 16.07.2008 ₹ 1,33,000/- Date: 29.03.2008 2 Document no. 4879/2008, Village Soyla, Survey No. 326 ₹ 3,68,50,800/- Dated: 25.06.2008 ₹ 4,50,000/- Date: 27.12.2006 The ld. A.O. had considered Section 2(14)(iii)(b) of the Income Tax Act,1961, which is reproduced as under: (b) In any area within such distance, not being more than eight kilometers, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanization of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates by the Talati Cum Mantri and other details collected by his office provided to the assessee for rebut the same. On 23.12.2011, ld. A.R. of the appellant attended and filed details of Form-6 indicating dates of conversion of land into non-agricultural land. These details were not found relevant as the lands are situated within two kms of Municipal limits of Sanand and these lands are capital assets within the meaning of Section 2(14)(iii)(b) of the IT Act. The distance ascertained on the basis of certificate and statement given by the Talati cum Mantri who is the authority keeping land records of village. The reply of the appellant dated 23.12.2011 was related to the boundary of Sanand Town to the boundary of Soyala village. The statement was against the fact that no revenue village situated between Sanand and Soyala. Thus, he observed that no gap of three kms between boundaries of two villages. As per the A.O., the fact has confirmed by Talati cum Mantri on oath that there is no other revenue village situated between Sanand and Soyala. 2.1 He further observed without prejudice to the above that land was not in used for agricultural purpose and also he considered the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these lands was tor a short period and it was a temporary character of by way of stop - gap arrangement. Whether the land, though entered in revenue record, had never been actually used for agricultural, whether the owner meant or intended to use it for agricultural purposes As explained in Serial no. 1, 2 and 3 the land was never used by the assessee for agricultural purpose. The intention of the assessee was only to earned profit on sale of land as the assessee earned huge profit of ₹ 4,32,93,560/- within a short period and purchase price of both land was ₹ 5,83,000/-. Hence, the motive of owner was to earn profit and not agricultural purpose. The A.O. further issued show cause notice dated 13.12,2011, which was replied by the appellant, which had not been found convincing to the A.O. on the basis of following reasons: A. The nature and character of land was non agricultural in view of decision of the Hon ble High Court in CIT V/s. Siddharth J. Desai (139 ITR 628). B. The land was falling within two kilometers of municipal limits of Sanand. As per provisions of sections 2(14)(iii)(b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that land sold on above survey nos. were more than two km away from the Municipal limit of Sanand. Accordingly, he held that these lands are not covered under Section 2(14)(iii)(b) of the Act. 4. Now, the Revenue is before us. Ld. CIT D.R. vehemently relied on paper book filed vide letter dated 31.12.2012. He contended that both the Survey nos. of land is within one kilometer from the Municipal limit of Sanand. The ld. CIT(A) has visited the land above Survey nos. on 27.07.2012 and no opportunity was given by the CIT(A) to the A.O. after visit. He has drawn our attention on page nos. 76, 78, 79 71 of the paper book and contended that the appellant had shown approach road from Sanand Municipal limit to Survey no. 313 (pink ink) and Survey no. 326 (blue ink), whereas as per A.O., this distance from Fangdi Road is less which is as per state line or corw s flight as per page nos. 78 79 of the paper book. He further argued that as per Talati cum Mantri report dated 13.06.2012 (page no. 71 of paper book) distance was measured by him from land mark Bhagirat Lake City which is exactly situated at the end of Municipal limit of the Sanand and falls within the revenue area of vill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. Shhidhartha J. Desai (139 ITR 628) was relevant to housing society which was sold after obtaining permission u/s.63 of the Tenancy Act, which was not situated within the Municipal limit and the land held to be agricultural land, hence, not liable to capital gain. This decision was given against the Revenue. The character of the land is to be seen on the date of sale. Whether the land is an agricultural land or not, is essential question of fact. Several tests have been evolved in the decision of Hon ble Supreme Court and High Court, but all of them are more than in the nature of guidelines. The question has to be answered in each case, having regard to the facts and circumstances of the case. There may be factors both for and against the particular point of view. The Court has to answer the question on consideration of all of them by a process of evaluation. The inference has been drawn on cumulative consideration of all the relevant facts as held in case of Sarifabibi Mohmed Ibrahim vs. CIT (supra). Further, in case of CIT vs. Madhabhai H. Patel 208 ITR 638 (Guj), It is held that if the land is recorded as agricultural land in the Revenue record and if till the date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Laukik Developers v. Dy. CIT [2007] 105 ITD 657 wherein the aforesaid principle has been accepted. Ld. Counsel also filed certified copy of map bearing Survey no. 1767 and Survey no. 1482 of Sanand Municipality are the road side touch survey numbers ending with municipal limit of Sanand Municipality. He claimed that the Survey no. 1767 falls on the left side and Survey no. 1482 of the right side of the approach road to village Soyla. Counting the distance from the said road, the revenue Survey nos. 326 313 of Soyla village are situated at a distance of 3.2 km. Thus, the lands under consideration are outside the definition of capital asset by virtue of government notification. 5. We have heard the rival contentions and perused the material before us. It is found that the appellant had disclosed agricultural income from that land and also 7/12 record shows the nature of land in land revenue record as agriculture. The ld. CIT(A) had inspected the impugned survey nos. personally and found that the distance of both the lands from the Sanand Municipal limit is more than two kilometers. It means it is outside the purview of the Municipal limit. The method to be adop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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