TMI Blog2018 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ee that the entire extent of 301 cents does not belongto him. It is evident from the records produced by the assessee that the entiresale consideration was ₹ 15,30,00,000/- and the share of the assessee was ₹ 8,61,41,416/-. - Decided in favour of the Revenue - Tax Case Appeal No.504 of 2018 - - - Dated:- 11-10-2018 - Mr. Justice Huluvadi G. Ramesh And Mr. Justice K. Kalyanasundaram For the Appellant : Mr.T.R.Senthil Kumar Senior Standing Counsel For the Respondent : Mr.K.Doraisami, Senior Counsel For Mr.M.P.Senthilkumar JUDGMENT HULUVADI G. RAMESH, J. K.KALYANASUNDARAM, J. This Tax Case Appeal has been filed by the Revenue calling in questionthe correctness of the order passed by the Income Tax Appellate Tribunal,Madras 'B' Bench, Chennai, dated 05.12.2017 made in ITA No.1878/Mds/2016,by raising the following substantial questions of law:- (i) Whether the Appellate Tribunal is perverse by holdingthat the said land was an agricultural land under Section2(14)(iii) of the Income Tax Act? (ii) Whether mere payments of kisti will suffice toconsider a land as agricultural, when no income from agriculturewas offered in the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 7,76,788/, but sold theproperty by way of sale agreement to Vijay Shanthi Builders Ltd., fordevelopment of property as house sites and thereby he receivedRs.8,61,41,416/- towards sale consideration. Though the assessee hadproduced Chitta, Adangal and Kist for the year 2005, the assessee has notshown any agricultural income during the earlier years and also for theassessment year 2007-08 under the Income Tax Act or Wealth Tax Act. Moreover, the details of crops said to have been cultivated by the assessee hasnot been mentioned in the Adangal and the portion relating to the crops andextent have been left blank and therefore, those documents cannot be reliedupon to determine the character of the land. 5. It is the further submission of the learned Senior Standing Counselthat though the land in dispute has been assessed to the land revenue asagricultural land under the State Revenue Law is certainly a relevant fact, butit is not conclusive. It is further argued that the Hon'ble Supreme Court in thecase of Sarifabibi Mohmed Ibrahim Others Vs. Commissioner of IncomeTax reported in 1993 (204) ITR 0631 , has affirmed the decision of GujaratHigh Court in CIT Vs. Si ..... 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(a) in any area which is comprised within the jurisdictionof a municipality (whether known as a municipality, municipalcorporation, notified area committee, town area committee,town committee, or by any other name) or a cantonment boardand which has a population of not less than ten thousand; or (b) in any area within the distance, measures aerially,- (I) not being more than two kilometres, from the locallimits of any municipality or cantonment board referred to initem (a) and which has a population of more than ten thousandbut not exceeding one lakh; or (ii) not being more than six kilometres, from the locallimits of any municipality or cantonment board referred to initem (a) and which has a population of more than one lakh butnot exceeding ten lakh; or (iii) not being more than eight kilometres, from the locallimits of any municipality or cantonment board referred to initem (a) and which has a population of more than ten lakh 8. In the appeal, the issues that arise for consideration is whether theassessee had proved that the land sold was an agricultural land and it wouldnot attract payment of capital gain tax and whether this Court can interferewith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vendors hereby agreethat they will not revoke the Power of Attorney executed inrespect of the properties in any circumstances and that the sameis irrevocable since consideration as per the Agreement wouldhave already been received by the Vendors. In spite of theabove, in the event of that the vendors unilaterally orvoluntarily revoke the Power of Attorney then the Vendors shallbe liable to pay to the purchaser then prevailing market value ofthe schedule mentioned property together with compensationfor improvements effected together with interest at the rate of15% per annum on such amounts against surrender /reconveyanceof the schedule mentioned properties to the vendorswith all improvements. 10. As stated above that the Assessing Officer and the Commissioner ofIncome Tax had come to the conclusion the land in question was notagricultural land and rejected Chitta and Adangal produced by the assessee. Aperusal of the Chitta and Adangal annexed in the typed-set of paper furnishedby the respondent would reveal that for the Fasali No.1415 (Correspondingyear 2005) in the adangal, except mentioning the name of the asessee, surveynumber and extent, the other relevant columns i.e., c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the land and if it was obtained in thepast, what was the nature of the user of the said portion of theland on the material date? (6) Whether the land, on the relevant date, had ceased tobe put to agricultural use? If so, whether it was put to analternative use? Whether such cesser and/or alternative user wasof a permanent or temporary nature? (7) Whether the land, though entered in revenue records,had never been actually used for agriculture, that is, it hadnever been ploughed or tilled? Whether the owner meant orintended to use it for agricultural purposes? (8) Whether the land was situate in a developed area?Whether its physical characteristics, surrounding situation anduse of the lands in the adjoining area were such as wouldindicate that the land was agricultural? (9) Whether the land itself was developed by plotting andproviding roads and other facilities? (10) Whether there were any previous sales of portions ofthe land for non-agricultural use? (11) Whether permission under Section 63 of the BombayTenancy and Agricultural Lands Act, 1948, was obtained becausethe sale or intended sale was in favour of a non-agriculturist? Ifso, whether the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and by some possible futureowner or possessor, for an agricultural purpose. It is not themere potentiality, which will only affect its valuation as part of assets , but its actual condition and intended use which has tobe seen for purposes of exemption from wealth tax. On theobjects of the exemption seemed to be to encourage cultivationactual utilisation of land for agricultural purposes. If there isneither anything in its condition, nor anything in evidence toindicate the intention of its owners or possessors, so as toconnect it with an agricultural purpose, the land could not be agricultural land for the purses of earning an exemption underthe Act. Entries in revenue records are, however, good primafacie evidence. We do not think that all these considerationswere kept in view by the taxing authorities deciding the questionof fact which was really for the assessing authorities todetermine having regard to all the relevant evidence and lawlaid down by this Court. 14. In the decisions relied on by the learned Senior Counsel for therespondent, this Court, on facts, came to the conclusion that the assessee hadin fact established their case that they were carrying agriculture act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt also held that it is notthe number of times that a finding has been reiterated thatmatters. What really matters is whether the finding is amanifestly unreasonable and unjust one in the context of theevidence on record. This judgment squarely applies to the caseon hand. In the instant case, the High Court has rightly exercisedits right and discharged its duty to reverse the error andremoved the injustice done by the courts below. The High Courtis right in exercising its duty, rightly so in interfering withunreasonable and unjust findings by both the courts below. 23. On a careful perusal of the materials on record, it willbe clear that both the courts below did not appreciate theevidence on record both oral and documentary and, therefore,the findings arrived at by the High Court, in our opinion, do notcall for any interference under Article 136 of the Constitutionand the civil appeal deserves to be dismissed. (ii) Bharatha Matha v. R. Vijaya Renganathan [2010 (3) CTC 654] 11. In Rajappa Hanamantha Ranoji v. MahadevChannabasappa [(2000) 6 SCC 120] this Court held that it is notpermissible for the High Court to decide the second appeal by reappreciatingthe ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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