TMI Blog2018 (4) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant : Mr. Ashish Sharma JUDGMENT In both appeals common questions of law and facts are involved, hence, they are decided by this common judgment. By way of these appeals, the appellants have challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee and appeal of Surendra Singh has partly allowed confirming the order of AO as well as CIT(A). Counsel for the appellant has framed following questions of law:- In DBITA No. 98/2018 i) Whether in the facts and circumstances of the case the learned ITAT was justified in rejecting the claim of the assessee under Section 54B claimed on account of capital gain on transfer of land used for agricultural purposes amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 105 ITR 133 (SC) wherein it has been held as under:- For the reasons already given, we do not think that the term agricultural land had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land was allowed to lie fallow and thereafter agricultural operations were resumed on the land, and in the light of those facts, this court held that the land was agricultural land. In that case, the land was used for brick-making for nearly two decades before it was returned to agricultural operations in 1952. In the instant case, we have non-agricultural use for brick-making for a period of two years and thereafter the land was allowed to lie fallow and agricultural operations were started and bajri was grown in this land in the revenue year 1964-65. We may point out that under the Bombay Tenancy and Agricultural Lands Act, 1948, land has been defined in s. 2, sub-s. (8), to mean, inter alia, land which is used for agricultural purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correct tests which are required by law to be applied for determining as to of what date the character of the land is to be found and, secondly, in the right of what tests the question has to be decided, have not been applied by the Tribunal, we are applying the correct tests to the facts found and, in our opinion, applying the principles laid down by this court in CWT v. Narandas Motilal MANU/GJ/0021/1970 : [1971]80ITR39(Guj) , Manilal Somnath's case MANU/GJ/0009/1976 : [1977]106ITR917(Guj) , Smt. Chandravati Atmaram Patel v. CIT MANU/GJ/0021/1977 : [1978]114ITR302(Guj) and Chhotalal Prabhudas v. CIT MANU/GJ/0006/1978 : [1979]116ITR631(Guj) , read in the light of the observations of the Supreme Court in Begumpet Palace's case M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes. With reference to query made in this regard, vide note sheet dated 10/01/2014, the A.R. vide his written replies filed on 28/01/2014 has submitted that:- 1. A photo copy of Girdawari of just preceding year of sale of land is enclosed which indicating what type of crops were sawed and produce. This aspect were examined by the A.O in the A.Y. 2010-11 and considered the same as well as found in ourder. 2. The agricultural land sold out during the year under consideration were given on contract Batai to agriculturist and taken one time paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two year from the date of transfer. The land measuring 0.01 Hec. Pertaining to Khasra No. 886 pertainsn to the land covered for the any means of irrigation. The remaining land of Khasra No. 890 measuring 0.62 Hec. Has remained vacant (i.e. being not used for agricultural purposes) within the period of two years from the date of transfer of plots out of it. Accordingly, out of the total land involved in three Khasra s of measuring (0.62+0.01+1.10) =1.73 hec, the land measuring 0.62 haec which comes to 0.62/1.73 hec=35.84% of total lands involved in three khasra s., is not eligible for deduction u/s 54B (1) of the IT Act, 1961. thus out of the claim of total deduction u/s 54B of ₹ 28,92,480/- the deduction to the extent of Rs. (25 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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