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TMI Blog2018 (8) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... he profit of Rs. 68,18,800/- earned by the assessee on the sale of agriculture land as exempt under Section 2(14) of he Income Tax Act by holding that the proceeds from sale of land is to be treated as income from capital gain, the Revenue has preferred the present Tax Appeal with the following proposed questions of law:- "Whether the Appellate Tribunal has substantially erred in law in holding that the proceeds from sale of land is to be treated as income from capital gain?" 2. Facts leading to the present appeal in nutshell are as under:- 2.1 The assessee filed her return of income for Assessment Year 2009-10 showing total income at Rs. 1,53,440/-; that during the course of assessment proceeings, the Assessing Officer notice that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer to treat the profit of Rs. 68,18,800/- earned by the assessee on the sale of agriculture land as exempt under Section 2(14) of he Income Tax Act. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order dated 06.12.2017 passed by the learned Income Tax Appellate Tribunal, Rajkot Bench, Rajkot in ITA No.259/Rjt/2014 for Assessment Year 2009- 10, the Revenue has preferred the present Tax Appeal with the following proposed questions of law:- "Whether the Appellate Tribunal has substantially erred in law in holding that the proceeds from sale of land is to be treated as income from capital gain?" 3. Mrs.Mauna Bhatt, learned Counsel has appeared on behalf of the appellate-Revenue. 4. It is vehemently submitted by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee from sale of the lands is to be assessed as business income and not as capital gain, which is exempt from tax under Section 2(14) of the Income Tax Act read with Section 45 of the Act. 4.4 Making the above submissions and relying upon the decisions of the Hon'ble Supreme Court in the cases of G.Venkataswami Naidu & Co. Vs. Commissioner of Incometax, reported in (1959) 35 ITR 594(SC) and Commissioner of Wealth-Tax, AP Vs. Officer-In-Charge (Court of Wards), Paigah, reported in 1976 (105) ITR 133 and decision of Division Bench of this Court in the case of Commissioner of Income Tax Vs. Minal Rameshchandra, reported in 1987 (167) ITR, 507, it is requested to admit /allow the present appeal. 5. Heard Mrs.Bhatt, learned Counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also required to be noted that the assessee is an agriculturist and also belongs to family of agriculturists. Therefore, as the assessee sold the agriculture lands and therefore, claimed exemption under Section 2(14) of the Act on the profit earned on sale of agriculture lands, Section 2(14) of the Income Tax is required to be referred to and reproduced hereunder:- "2(14) "capital asset" means xxxxxxxx but does not include xxxxxxx (iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n carried out by the assessee was not "adventure in the nature of trade" and therefore, profit earned was not required to be taxed as business income. The aforesaid is the finding recorded by the learned Tribunal on appreciation of evidence. 9. As observed hereinabove, the land was sold as an agricultural land and in fact, what was sold was agriculture land. What was the intention of the purchaser cannot be the determinative factor to treat the profit earned by the assessee on sale of agriculture land as business income. Similarly, merely because for whatever reason, the assessee has earned sufficient huge amount of profit also cannot be a ground to treat the profit earned by the assessee on sale of agriculture land as business income. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not be applicable to the facts of the case on hand. 13. The decision of the Division Bench of this Court in the case of Minal Rameshchandra (supra) shall also not be applicable to the facts of the case on hand. In the case before the Division Bench, the Division Bench, on facts, held that the assessee was businessman and dealing in land business and he along his mother and brother purchased the land with a view to earn profit and therefore, it was having a characteristics of "adventure". Therefore, on facts, the said decision shall not be applicable to the facts of the case on hand. 14. In view of the above and for the reasons stated hereinabove, we are of the opinion that in the facts and circumstances of the case, the learned Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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