TMI Blog2019 (8) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... lf it is clear that the lands in question were agricultural land. On the contrary, though the Revenue is taking the transaction as business income they have not brought in any evidence on record neither they have conducted any specific enquiry to show that it is business transaction. - Decided against revenue. - ITA No.1707/PUN/2013, CO. No. 82/PUN/2014 (Arising out of ITA No.1707/PUN/2013) - - - Dated:- 8-8-2019 - Shri R.S. Syal, VP And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri Sunil Ganoo For the Revenue : Shri Vishwas Munde ORDER PER PARTHA SARATHI CHAUDHURY, JM : This appeal preferred by the Revenue and cross-objection by assessee emanates from the order of the Ld. CIT(Appeal)-II, Pune dated 28.03.2013 for the assessment year 2009-10 as per the grounds of appeal on record. 2. The brief facts in this case are that the assessee is an individual and carries business of retailer in readymade garments under the name and style of Ambar Collection. The assessee has earned income from the business, commission agency, other sources and capital gain. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer has only looked into the quantum of agricultural income mentioned in the return of income by the assessee as decisive factor on the issue instead of conducting any specific enquiry regarding nature and character of the land and also whether agricultural activities were conducted or not as in conformity with Section 54B of the Act. In absence of this exercise, the Assessing Officer did not accept the submissions of the assessee only on the premise that meager agricultural income was shown. The Ld. CIT(Appeals) was, therefore, of the opinion that in absence of any specific enquiry and definite reasons, the Assessing Officer though on one hand accepting the land to be an agricultural land as per 7/12 extract should have conducted an independent enquiry to find out whether agricultural activities were carried out or not before refusing to grant deduction u/s.54B of the Act. 4. The records further demonstrates that the 7/12 extract as produced by the assessee clearly recorded the crops grown in Kharif season such as paddy and fodder grass and some fruit plantation since long which clearly indicated that the land in question was an agricultural land and as rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee holding that the land in question is not a capital asset and therefore there arises no tax incident. 6. At the time of hearing, the Ld. DR has placed strong reliance on the findings of the Assessing Officer. The Ld. DR placed reliance on the decision of the Co-ordinate Bench of the Tribunal in ITA No.699/PN/2013, ITA No.700/PN/2013 and ITA No.701/PN/2013 for assessment year 2009-10. In these cases, the Tribunal had referred to the decision of the Hon‟ble Bombay High Court in the case of CIT Vs. V.A. Trivedi (1988) 172 ITR 95 ( Bom.) wherein it was held that to ascertain the true character and nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time, prior to the relevant date and further whether on the relevant date the land was intended to be put to use for agricultural purposes for a reasonable span of time in the future. The Hon‟ble Bombay High Court in the case of Gopal C. Sharma Vs. CIT, 209 ITR 946 (Bom.) has held that merely because the land was shown as agricultural in the revenue records was held to be not the conclusive test to determine that the land as agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain criteria have been placed in this statue to qualify the land as agricultural land. The facts on records demonstrate that both the parties have accepted the land to be an agricultural land. The 7/12 extracts clearly demonstrates the fact that the land to be an agricultural land. The Assessing Officer though agreed the land to be an agricultural land but denied benefit of deduction u/s.54B of the Act to the assessee on the ground that the land was not used by the assessee for agricultural purposes for the preceding two years from the date of transfer of such land. The Assessing Officer has not conducted any specific enquiry to negate the assertions made by the assessee that the land was used for agricultural purposes. As per the 7/12 extracts, kharif season crops were grown on that land. That matter in similar facts and circumstances had come up for adjudication before us in ITA No.1471/PUN/2013 for assessment year 2009-10 decided on 31.07.2019 where the Co-ordinate Bench of the Tribunal, Pune has held and observed as under: 7. We have perused the case records and heard the rival contentions. We have also considered the judicial pronouncemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the purchaser i.e. TATA International DLT P. Ltd. This permission was granted by Deputy Director, Town Planning, Junnar, Khed, Pune on 02.06.2010. 9. In the case of Commissioner of Income Tax Vs. Dhable, Bobde, Parose, Kale, Lute Chowdhari, (1992) 202 ITR 98 (Bom.), the Hon ble Bombay High Court has observed that the case of the Revenue mainly appears that the intention of the assessee is to do business. However, no materials was brought in on record by the Revenue in support of this stand except the allegation that some of the members of the assessee AOP, had also entered into similar deals in their individual capacity and that the land in question was sold by the assessee within three months from the date of purchase. The Hon ble Jurisdictional High Court further held that the onus of proving that the land formed part of the business assets of the assessee is on the Department and in the absence of any evidence to that effect the presumption will be that the land was held as a capital asset by the assessee and the income from transfer thereof was not income from business. In view of the matter and judicial pronouncements as referred h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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