TMI Blog2016 (8) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... Builders and Developers for ₹ 15 lacs and 14 plots to Shri Sahebrao Wadekar for ₹ 15 lacs and the sale proceeds totalling ₹ 30 lacs were directly paid to the assessee by these two purchase parties. Further more the assessee has also made application for conversion of the said land for non agricultural land for residential purpose. Thus the assessee was aware of the purpose for which the entire transaction was being entered at the threshold. There is no evidence of any cultivation activity on the said land. The assessee has not disclosed any agricultural activity/income/expenditure on the said land. Rather the facts of the case clearly indicate that the assessee was in the process of converting the land into non agricultural land and he eventually sold for non agricultural activities. Hence agree with the conclusion of the learned CIT(Appeals) that the facts of the case that no agricultural operation being carried out in the said property, the efforts to convert the said land into non agricultural land, taking advance from the eventual purchaser even before the said property had been purchased and being aware all along that the said land will be used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot honoured. The details of payment received was given as under : Sr.No. Date Received i) 10-03-2008 ₹ 5 lacs ii) 30-09-2008 ₹ 20 lacs ₹ 20 lacs. ₹ 15 lacs. 3. It was further submitted that the post dated cheques were not honoured by the buyer and the transaction was not completed by them and substantial consideration of the property was not received and therefore the possession of the property was also not handed over. The AO made further enquiries by way of recording the statement of Shri Rajendr Ramdas Dhore (the purchaser of the property) wherein the above fact of payment of ₹ 5 lakhs and the dishonouring of the post dated cheques was confirmed by him. It was further stated by him that he had received possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submissions and held as under : 5. I have carefully considered the facts of the case and the submissions of the appellant. In order to determine the real nature of transaction of purchase and sale, various factors are to be taken into consideration viz. the intention of the assessee at the time of purchase, treatment of the land in question, holding period, actual use of land, location of land, surrounding circumstances near future use of land etc. Thus the question that a particular land is acquired and retained as an agricultural land has to be decided on the basis of totality of the relevant facts and circumstances and not by applying any single factor or test. 5.1 In the case at hand, the intention of the appellant can be most clearly made out by the fact that even before the said property was purchased by the appellant on 25-03-2008 for a consideration of ₹ 31,50,000/-, he had received the advance payment of ₹ 5 lacs on 10-03- 2008 against the sale consideration of ₹ 60 lacs for the said property. This fact emerges from the sale deed itself. Thus the fact that the appellant had entered into the transaction of sale even before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders clearly reflects the commercial and profit element in the purchase and sale of the said property. The Hon'ble Supreme Court in case of Gemini Pictures Circuit Private Ltd. (220 ITR 43) has observed and held in paragraph 5 are as under: ... 5 A recent decision of this court in Sarifabibi Mohmed Ibrahim v. CfT [1993J 204 fTR 631, rendered by a Bench comprising one of us (B. P. Jeevon Reddy J.) is relied upon by learned counsel for the Revenue. The Bench observed: Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The court has to answer the question on a consideration of all of them a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts. Several judgments of this court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has never left anyone with any doubt regarding his intention. It was always the business motive that drove the appellant and there never was any intention of holding the said land as an investment. In view of the above facts and circumstances of the case, I hereby hold that the nature of transaction of purchase and sale of the said property was an adventure in the nature of trade and has to be taxed accordingly. 7. Against the above order, the assessee is in appeal before the ITAT. 8. I have heard both the counsel and perused the records. Learned counsel of the assessee submitted that the assessee has sold the agricultural land. That the said land was beyond 8 kms. of the jurisdiction of Nagpur Municipal Corporation. That 7/12 extracts clearly indicate that the said land was agricultural land. He submitted that though permission for conversion into non agricultural land was moved that was done on the behest of the ultimate purchaser. Learned counsel of the assessee further placed reliance upon the following : 1. Decision of Bombay High Court in Smt. Maltibai R. Kadu. 2. Decision of ITAT Nagpur Bench in ITA Nos. 112, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 lacs and the sale proceeds totalling ₹ 30 lacs were directly paid to the assessee by these two purchase parties. Further more the assessee has also made application for conversion of the said land for non agricultural land for residential purpose. Thus the assessee was aware of the purpose for which the entire transaction was being entered at the threshold. 12. Further there is no evidence of any cultivation activity on the said land. The assessee has not disclosed any agricultural activity/income/expenditure on the said land. Rather the facts of the case clearly indicate that the assessee was in the process of converting the land into non agricultural land and he eventually sold for non agricultural activities. 13 As held by Hon ble Apex Court in the case of Sarifabibi Mohmed Ibrahim vs. CIT 204 ITR 631; Whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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