TMI Blog1987 (7) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, 1972. Clause 17 of the agreement for sale contained the appellant's declaration that the said land was assessed to land revenue as agricultural land. On December 3, 1972, the said land was conveyed to the ultimate purchaser thereof.. For the purposes of his income-tax assessment, the appellant offered the capital gain made on the sale of the said land for taxation. On September 22, 1979, the order of assessment was passed and capital gains tax was levied the capital gain made as aforesaid. Thereafter, the Commissioner of Income-tax, on appeal, ordered a recomputation and it was made. At about this time, this court held in Manubhai A. Sheth v. N.D. Nirgudkar, ITO [1981] 128 ITR 87 (Bom), that capital gains tax could not be levied on a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that under the provisions of section 154 only a mistake apparent from the record could be rectified and this meant a glaring mistake which would shock the judicial conscience. That which required further evidence or fresh application of mind could not be rectified under section 154. A perusal of the, record revealed that the-appellant had never claimed the said land to be agricultural land. In fact, the appellant had himself worked out, for the purpose of capital gains tax, what had to be assessed. Therefore, the issue as to whether the said land was agricultural or not required the appreciation of fresh evidence. Hence, there was no mistake apparent from the record which had crept into the assessment. The Income-tax Officer als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been granted because the record revealed that the said land was at the relevant time agricultural land. The record consisted of the valuation report which had been tendered by the appellant, his wealth-tax assessment orders for several years and the agreement for sale. The valuation report, though it is as of January 1, 1954, described, according to Mr. Dwarkadas, the said land as agricultural land at the time of its conveyance. Mr. Dwarkadas referred to the wealth-tax assessment orders of the appellant which, according to him, showed that the said land was agricultural land. In this behalf, Mr. Dwarkadas also relied upon clause 17 of the agreement for sale, which we have adverted to. Mr. Dwarkadas, while we were at this point of dictati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed to examine the material on the record. The valuation report on record, it was argued, showed the said land to be agricultural land at the date of its conveyance. That is far from clear from a perusal of the valuation report which is made as of January 1, 1964. There is, undoubtedly, the declaration of the appellant made in the agreement for sale that on that date, the said land was agricultural land. But it must be remembered that the agreement for sale was entered into about 2 1/2 years earlier to the relevant date which is the date of the conveyance. As against this, there is the order of the Commissioner of Income-tax (Appeals) which for the wealth-tax assessment of the appellant for the relevant assessment year denies relief on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is, therefore, gross delay. Further, it was carried in appeal and the appellate order is not impugned in the petition. After the judgment was dictated but before it was signed, an application, Supported by an affidavit, was made by Mr. Dwarkadas asking that we should take into consideration an order passed in May, 1985, by the Income-tax Appellant Tribunal in relation to the assessments of the assessee to wealth-tax for the assessment years 1972-73 to 1975-76. This order is said to reverse the finding of the Commissioner (Appeals) for the year relevant to this appeal that the said land was not agricultural land. A reference to the dates shows that this order could not have been on the record of the Income-tax Officer at the time he c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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