TMI Blog2016 (12) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... the hill development plan has not been executed by the Government so far. The ld CIT(A) has also noticed that the impugned land is located 45 Kms away from the town. Thus, we notice that the AO has drawn adverse inferences on the basis of his own reading of records and we notice that the Ld CIT(A) has addressed all of them by drawing support from various case law as well as the documents produced by the assessee. Hence we do not find any reason to interfere with the order passed by Ld CIT(A) on this issue. - Decided against revenue - ITA No.911/Mum/2015, - - - Dated:- 22-12-2016 - S/Sh.B.R. Baskaran,Accountant Member Amit Shukla,Judicial Member Assessee by :Shri B.V. Jhaveri-AR Revenue by :Shri M.C. Omi Ningshen-DR ORDER B.R. Baskaran, AM: The appeal filed by the revenue is directed against the order dated 21.11.2014 passed by Ld CIT(A)-33, Mumbai for assessment year 2011-12. Though the revenue has raised many grounds, all of them are directed against a single issue, viz., whether the Ld CIT(A) was justified in accepting the contention of the assessee that the land sold by him was a agricultural land. 2. The facts relating to the issue are dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted relief to the assessee. 6. On the contrary, the Ld A.R submitted that the AO has misdirected himself in assuming that the grass grown in the field was a wild grass. He submitted that the assessee has filed an affidavit dated 21.3.2014, wherein he has stated that his father used to grow Vegetables and Nachni on a portion of land. He has further stated that his father used to carry out farming activity. He submitted that the impugned lands were used to carry out agricultural activities including growing of grass. He submitted that the assessee has kept the character of land as agricultural land only till the date of sale. The intention of the purchaser of land to convert the same for non-agricultural purpose, if any, would not alter the character of land in the hands of the assessee. He submitted that the impugned land is located about 50 Kms away from Lavasa town. He submitted that the surrounding area has not been developed as Hill Station so far, though the Government s proposal came long time back. He submitted that the Ld CIT(A) has rightly appreciated all these factors and accordingly rendered his decision. Accordingly he submitted that the order passed by Ld CIT(A) sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, which is left barren but which is capable of being cultivated can also be 'agricultural land' unless the said land is actually put to some other non-agricultural purpose, like construction of buildings or an aerodrome runway etc., thereon, which alters the physical character of the land rendering it unfit for immediate cultivation ..... land is assessed to land revenue as agricultural land under the state revenue law, it is strong piece of evidence of its character as agricultural land. 24. Therefore even if the land is barren but capable of being cultivated, the same would be categorized as agricultural land as decided in the judicial pronouncement cited above. Revenue records of the village Admal also shows the land as agricultural land. Therefore, the contention of the Assessing Officer that land is not agricultural because grass is grown over the land has no relevance and it cannot be accepted as the criteria or treating the land as non-agricultural. 25. Second ground on which the AO has treated the land sold by the appellant as non-agricultural land is that the assessee has also not been showing any agricultural income or loss from these plots of land. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in generation of surplus that cannot be a ground to say that the land was not used for the agricultural purpose. It is not disputed that the land was shown in the revenue record to be used for agricultural purpose and no permission was ever obtained for non-agricultural use by the respondents. Section 30 of the Goa, Daman and Diu Land Revenue Code, 1968 provides that no land used for agriculture shall be used for any non-agricultural purpose and no land assessed for one nonagricultural purpose shall be used for any other non-agricultural purpose except with the permission of the Collector. Section 32 of the Goa, Daman and Diu Land Revenue Code prescribes the procedure for conversion of use of land from one purpose to another including conversion from agricultural purpose to non-agricultural purpose. The permission, for non-agricultural use was obtained for the first time by the Varca Holiday Beach, Resort Private Limited the purchaser after it purchased the land. Thus, the finding recorded by the two authorities below that the land was used for the purpose of agricultural is based on appreciation of evidence and by application of correct principles of law. The Tribunal has relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bom.) wherein the Hon'ble High Court has elaborately explained the treatment of a land as agriculture land in following words It is well established that in a given case agricultural land may or may not yield agricultural income. If there is land which was once cultivated or put to agricultural use but is now fallow or barren, it would not merely by reason of such fact cease to be agricultural land: Conversely what is patently non-agricultural land may in extraordinary circumstances be used for a purpose to which agricultural land is usually put and may therefore yield agricultural income. However, merely by reason of the yield, it cannot be designated as agricultural land. Again, where the land is being assessed as agricultural land, then, normally, although it is not being put to actual agricultural use, it may be presumed that it continues to be agricultural land; unless it can be shown that it has been in fact put to some non-agricultural use, or there is some relevant circumstances to indicate that it cannot be properly regarded as agricultural land. It is also well settled that entries in revenue records are good prima facie evidence with regard to the character of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states all the areas of land sold by the appellant are agricultural land till recent past. The buyer has not got changed the land use from agricultural to non agricultural in respect of this land. The land was purchased and sold as an agricultural land, which is clearly mentioned in the purchase and sale deeds in respect of this land, which are placed on record and entered in the revenue records as agricultural land. 35.1 In the case of HINDUSTAN INDUSTRIAL RESOURCES LTD. vs. ASSISTANT COMMISSIONER OF INCOME TAX, :(2011) 335 ITR 77, it was held by the Hon'ble High Court of Delhi that In view of the findings of the Tribunal that the land in question was agricultural land at the time of purchase by assesseees also at the time of acquisition, the land was clearly agricultural land irrespective of the fact that the assessee intended to use the land for industrial purposes and did not carry out any agricultural operations and therefore, no capital gains could be charged on acquisition thereof under Land Acquisition Act, 1894. 35.2 The facts of the case law of Gemini Pictures Circuit P.Ltd 220 ITR 43(SC) relied upon by the Assessing Officer, cannot be applied to the insta ..... 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