TMI Blog1969 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Assistant Commissioner for wealth-tax and he dismissed the appeal and confirmed the order of the Wealth-tax Officer. The assessee, thereafter, preferred an appeal before the Appellate Tribunal, and there also it was contended that the land in question was agricultural land, used for agricultural purposes and as such not liable to assessment. The Appellate Tribunal also dismissed the appeal and thereafter an application was filed before the Appellate Tribunal for referring the case to the High Court and this was also rejected. The assessee then moved the High Court and a Division Bench of this court on August 30, 1966, directed the Tribunal to state the case for the opinion of the court under sub-section (3) of section 27 of the Wealth-tax Act. The question which was formulated by the court is as follows: "Whether, on the facts and circumstances of the case the Tribunal was justified in holding that the disputed land was not agricultural land on the relevant date for the purpose of the Wealth-tax Act?" Before I take up the discussion of the facts and the questions of law which are involved in answering this question, I may first of all refer to the relevant provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n also. In the present case, admittedly, a piece of land measuring 1 bigha 9 kathas 17 dhurs belonged to the assessee and this land was recorded as mango orchard in the survey khatian of the Patna City Municipality which was finally published in 1933. According to the assessee it was recorded as mango orchard in the municipal survey and that such an entry has got a presumption of correctness and that thereafter rent was also fixed for this land under the Land Reforms Act for which receipts were granted by the Government. This position was also not disputed that this land is situated at Bhattacharjee Road which is in the heart of the town of Patna and the situation of this land is such that it is within a residential area and has got building on all sides. It was also admitted that this land was sold in July, 1962, for a consideration of Rs. 1,50,000. It also appears that in the previous assessments no tax was levied in respect of this land and for the first time tax was being levied for this land also in the year 1962-63, and it was also urged on behalf of the petitioner that for the previous years, since no assessment was made in respect of this land, so it can be taken that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibition Road, Patna, hereby certify that we have purchased a piece of land, Plot No. 794, Holding No. 196, Circle No, 9, Ward No. 2 and Sheet No. 31. When the negotiation for the bargain was going on, the land in question was full of banana trees, palm trees, and other vegetable trees with a pucca well. The sal trees and plants of vegetables have been cut by us for clearing the land for our purpose. For Road Transport Corporation, Sd. B.S. Jain, Branch Manager." One significant feature about this certificate is that there is no date. Shri Jain in his certificate has referred to the time when the negotiation for bargain was going on, and as the sale took place in July, 1962, so the negotiation must have been going on from sometime before July, 1962. He has stated that at the time of the negotiation the land was full of banana trees, palm trees and other vegetable trees. It has been urged on behalf of the opposite party that the existence of the banana trees and palm trees would not show that the land was agricultural land and was being used for agricultural purposes because there was nothing to show that there was any actual cultivation going on and, as far as the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that Act. Reliance has also been placed on behalf of the petitioner on the decision in the case of Paramananda Das v. Sankar Rath, where it was held that the expression "agricultural lands" must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. This was a case with reference to the Orissa Tenancy Act. These decisions show that a mango orchard can also be regarded as an agricultural land, but in the present case, as I have pointed above, there was no evidence whatsoever to show that there was any mango orchard in the sense that mango trees were actually in existence at the time of the valuation date. I may also refer here in this connection to a decision of the Privy Council in the case of Raja Mustafa Ali Khan v. Commissioner of Income-tax. That was a case under the Income-tax Act and the question was whether the income from the sale of forest trees was agricultural income and as such liable to exemption under the Income-tax Act. It was held in that case that, though it must always be difficult to draw a line, yet, unless there is some measure of cultivation of the land, some e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular land is agricultural land or not will be dependent on the intention of the owner. It is quite obvious that the owner may use a vacant piece of land either for cultivation or as a building site, but naturally the character of the land cannot be solely dependent on his intention to use the land as such. The question whether the land is agricultural land or not cannot depend on the fluctuating or ambulatory intention of the owner of the land. The criterion must be something more definite and more objective, something related to the nature or character of the land and not varying with the intention of the owner as to the use to which he wants to put the land at a particular point of time. The intention of the owner, however, is not altogether irrelevant, but it is a factor which would bear on the nature or character of the land dependent on other factors. In the Gujrat case referred to above, the plots in dispute about which it was said that these were agricultural lands, were situated in a wholly residential area with numerous residential buildings surrounding them and, furthermore, these were situated in an area in respect of which a town planning scheme was in force for some ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of the land. I may also refer here in this connection to the decision of the Andhra Pradesh High Court in the case of Smt. Manyam Meenakshanima v. Commissioner Wealth-tax which was also a case under the Wealth-tax Act ; it was held that, if a land is ordinarily used for agriculture, or for purposes subservient to or allied to agriculture, it would be agricultural land and, if it is not so used, it would not be agricultural land and the question how a land is ordinarily used would be one of fact depending on the evidence in each case. It may also be mentioned here that the learned counsel for the petitioner has submitted that, since the petitioner-assessee was not claiming evemptian under the provisions of the Wealth-tax Act but was claiming immunity from the applicability of the Act to this land, the onus was on the department and for this reliance has been placed on the case of V. Venugopala Varma Rajah v. Controller of Estate Duty. It was a case under the Estate Duty Act ; it was held there that if what the assessee claims is an exemption from tax liability, the burden of proving that he is entitled to the exemption is on the assessee and that, if what the assessee claims is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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