TMI Blog2019 (4) TMI 1981X X X X Extracts X X X X X X X X Extracts X X X X ..... 2272/2015/A-3 dated 27.07.2015, which was obtained under Right to Information Act 2005, confirmed that the approval obtained by the assessee was valid for 3 years only, based on the file, District Fire Dept. License and Dist. Health Dept. approval has not been obtained and submitted and if NO action has been initiated to fulfil the terms and conditions of the approval, then the approval is considered to be lapsed. While conveying approval for conversion, the competent authority has imposed various conditions and one of the conditions at 7 is that This concern should be accorded final sanction only after obtaining necessary approvals from the other Central and State Government Departments under the applicable laws and regulations . Admittedly, the assessee has not obtained any approval as mandated in the preliminary approval. Encumbrance Certificate issued by the Registration Department for the period from 01.07.2007 to 01.03.2016, the status of the land remains as agricultural land and moreover, the assessee has declared agricultural income from their agricultural lands. The Assessing Officer accepted the agricultural income declared by the assessee during regular assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection Certificate from the Tahsildar, which was given only when agricultural activities were not conducted for three years through a letter, based on which the competent authority conveyed approval to use the land for nonagricultural purposes. It was the submission that the above four assessee s sold their land jointly in a single sale deed to a company by name Agility Logistics Private Limited for the purpose of construction of cargo cum truck terminal. By referring to para 4.14 of the sale deed, the ld. DR has submitted that after obtaining approval from the competent authority, the assessees sold their property for non-agricultural purposes clearly attracts capital gain tax and pleaded for reversal of the appellate order and restore that of the Assessing Officer. 3. On the other hand, by filing the extract from Adangal and Chitta Register as well as Encumbrance Certificate of Registration Department, the ld. Counsel for the assessee vehemently argued that the land sold by the assessee was agricultural land warranting any capital gain tax. It was the submission that obtaining preliminary approval for conversion of agricultural land into non-agricultural purposes cannot chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Sarifabibi Mohamed Ibrahim (supra), the ld. PCIT has made a mention that It is noted that out of the 13 factors identified in this judgement, majority support the assessee s case . In the assessment order the Assessing Officer has listed the questions and answer furnished by the assessee and the same are reproduced as under: i. Whether the land was classified in the revenue records as agricultural and whether it was subjected to payment or land revenue? The land revenue was paid ii. Whether the land was actually or ordinarily used for agricultural purpose at or about the relevant time? No. the land was not actually used for agricultural purpose at the time of sale. In fact the assessee has obtained statutory Approval to use the land for non-agricultural purposes, which would be normally issued only when the land was not used Cor agricultural purpose in the earlier three years. iii. Whether such user or the land was for a long period or whether it was of a temporary character or by way of a stop-gap arrangement? The user of land is not for a longer period. The assessee sold 20.46 acres out of which 11.90 acres was purchased vide a sale dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by plotting and providing roads and other facilities? The land is not developed by plotting and providing roads. It was never intended to be sold as plots but was to be used for construction of truck bay. x. Whether there were any previous sales of portions of the land for non-agricultural use? No. xi. Whether permission under Section 63 of the Bombay tenancy and agricultural lands act, 1948 was obtained because the sale or intended sale was in favour of a nonagriculturist? If so, whether the sale or intended sale to such non-agriculturist was for non-agricultural or agricultural use? The permission under relevant laws was obtained for utilization of land for non-agricultural use. The purchaser was a non-agriculturist and the intended use was for non-agricultural purpose. xii. Whether the land was sold on yardage or acreage basis? The land as per the sale deed was sold in acreage. But, the SRO has decided the registration charges on square-feet basis for the reason that the land in question was permitted for non-agricultural purpose and required statutory approvals were already taken. xiii. Whether an agriculturist would purchase the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality. The AO has to conduct enquiries to verify whether approvals from other Central/State Governments have been actually obtained as per condition No. 7 or not. The Assessing Officer could not produce any evidence that the assessee has obtained approvals from other State and Central Government Departments as per condition No. 7 and therefore, we find that the permission obtained by the assessee from the Deputy Director, Town Planning (Genl.), Chengalpet vide order No. Na. Ka. 3502/2008/Ch.M.6 dated 23.09.2008 has not attained its finality. Further, it is evident from the reply under RTI vide letter bearing No. N.K. No. 2272/2015/A-3 dated 27.07.2015 from the Information Officer, Dy. Block Development Officer, Sholavaram Panchayat Union, that the assessee has not obtained further approvals as mandated in the initial approval vide condition No.7. 5.4 The queries raised by the ld. PCIT in para 17.6 to 17.9 pertain to make enquires with local VAO/Panchayat as to whether the assessee raised any cultivation. The Assessing Officer concluded that the letters from neighbours, Panchayat President, etc. are self-serving nature. For the endorsement made in the sale deed, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural purpose. It was further stated that though the land was converted, agricultural activities were carried on up to the date of sale. Therefore, what was sold was agricultural land within the meaning of section 2(14) and there was no capital gains tax arising out of such sales within the meaning of the definition of the term capital asset . Since the assessee did not offer any capital gain and claimed that it was agricultural land though it was converted into non-agricultural residential purpose, the case was selected for scrutiny and notice u/s.143(2) was issued on 26.6.2006. 3. The Assessing Officer formed the opinion that the land sold was nonagricultural as evidenced by document impounded during the course of survey and also on the basis of the registered agreement deed dt.25.2.2004. The assessee sold the immovable property held by him as GPA holder to the extent of 9 acres to M/s. Tibetan Childrens' Village having its office at Dharmsala, Centt - 176216, Kangra District, Himachal Pradesh, for a consideration of ₹ 90 lakhs. The Assessing Officer noticed as per the GPA, the above land was already converted from agricultural land to non-agricultural residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-agricultural residential purpose and the GPA was only for specific and exclusive purpose of making arrangement to sell the sites as mentioned above. The Assessing Officer held that the character of the land has already been changed. He further noted as per the conversion orders issued by the Assistant Commissioner, Ramanagara Sub Division, the land so converted were required to be put to the use for the purpose intended (non-agricultural) within two years from the date of the conversion order, otherwise the order was to be treated as null and void automatically. Particularly clause (10) of the conversion order specified as under : 10. The conversion of land hitherto shall be utilized for the proposed purpose within two years otherwise the land conversion shall be considered as cancelled. Any lapse on the part of the applicant to fulfill the conditions was a punishable offence u/s.96 of the Karnataka Land Revenue Act, 1964, as per clause 11 of the conversion order. As per clause (12), the land revenue for the converted land would be levied from the date of the order. The Assessing Officer held after the lapse of two years the assessee has not approached the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural land to non-agricultural use. Answering to this question, he stated that there are about 12 conditions stipulated in the conversion order issued to the assessee. He was again asked if the land is not used for the specific non-agricultural residential purposes, what would be the repercussion. Answering to this, he stated that if the land is not used for the specific purpose for which it has been converted within the stipulated period of two years from the order, conversion order is deemed to be cancelled. 6. In the instant case, Assessing Officer noticed from the case records produced by the Assistant Commissioner, the original owners submitted layout plan as approved by the local Grama Panchayat authorities. Subsequent to receipt of the conversion order, the original owners gave an undertaking before the Assistant Commissioner that the land would be used for the purpose for which it was converted, i.e., non-agricultural residential purpose, that too within a period of two years. From the above facts, the Assessing Officer came to the conclusion that the land has lost its original agricultural nature and characteristics in April 1999 by virtue of the conversion order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs for office premises and construction of hotel building was going on and one building for college building was also under progress. This was found out by the ITI and report by his report dt.28.12.2007 which also established the status of the land at the relevant point of time. 9. Coming to the land surrounded by or adjacent to the land in dispute whether it is urban or rural, the Assessing Officer made the following observations. He found that the land stood adjacent to well-known high traffic density state highway running between Bangalore and Mysore at about 18 kms away from the corporation limits of Bangalore and is also located in the thickly populated industrial belt. It was a fast growing industrial area and hence, the assessee could fetch good price of ₹ 10 lakhs only because of this. The Assessing Officer further found from the enquiry conducted with the land revenue authorities that the jurisdiction for collection of land taxes in respect of agricultural land lies with the Revenue Officer headed by Tahsildar. In other words, collection of taxes from sites and lands converted for non-agricultural purpose lies with the Grama Panchayat. In the instant case taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bonafide agriculturist would purchase the same at such price for genuine agricultural operations, and (ii) whether the price is such at which no prudent owner would agree to sell it even if he worked out the price on the capitalization method, taking into account its optimum yield in most favourable circumstances. In short, the price which the land fetches is an important criteria. The other criteria, is whether the land has been assessed to land revenue or not; whether agricultural activities are carried on or not; whether the land is capable of agricultural operations or not; the intention of the owner for which he is retaining the land and such intention not being fluctuating or ambulatory; character of adjoining land; description of the land in the official records, etc. 12. The Commissioner of Income-tax (Appeals) held that RTC record alone is not the determinative factor of the nature of the land. In the instant case, the land revenue records show that the land was converted and also the tax records show that non-agricultural tax was paid on the land during the relevant period. The Commissioner of Income-tax (Appeals) further held the most of the facts found by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook. There is no sign of residential sites having been formed. The schedule to the sale deed reproduced at pages 4 to 6 of the assessment i.e., pages 1 to 43 of the department's paper book shows that the lands are sold in the measuring form of acres and guntas and not as residential sites. The report of ITI indicates that there is no sign of layout or residential sites having been formed. These factors indicate the lands were not put to use for the purpose for which it was converted. Thus, the lands to the extent of 12 acres and 38 guntas had lost their nonagricultural status as on 28.4.01 i.e., on the completion of two years from the date of conversion order. 15. Coming to the objection of the Departmental authorities that the lands were not used for agricultural activities, the assessee's representative submitted the facts in brief as follows. The lands were used for agricultural activities. This is evident by documents like RTC extracts produced before the Assessing Officer and the appellate authorities. This fact of producing RTC is evidenced by the observation of the Assessing Officer at page 18 para 7 and page 24, para 2 of the departmental paper book and also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x(A) on 21.7.2008 particularly at page 4, briefly which is as under. It was submitted that the LAO has concluded that the sites were formed for formation of layout. This conclusion is wrong for the reason if the sites had been formed by the original owners as held by the LAO at page 4 of the assessment order, the RTC records proves it wrong. Secondly, it was further submitted a very strong denial is also in the form of photographs taken by the ITI wherein one could see the construction of buildings by the Tibetan childrens' Village, but there is no evidence of any sites having been formed in the area. The photographs were taken as late as December, 2007, i.e., almost 3 and half years after the sale of land, and thirdly if the sites had been formed what could have been sold to the Tibetan Childrens' Village should have been in terms of these sites and not the land as a whole without any mention of the site plans. The schedule to the sale deed indicates that the land is sold as a consolidated survey number and only a reference to the conversion order has been made. The above facts clearly proves that the sites were never formed either by the original owners or by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land coming within the jurisdiction during the year. The entries in the RTC are made thereafter. The Commissioner of Income-tax(A) is wrong in confirming the finding of the Assessing Officer to the contrary. It is a government record and it cannot be simply brushed aside. It may be true in stating ...the entries in the RTC alone shall not be considered as conclusive evidence to prove the case of the assessee. In the instant case, the Assessing Officer has not rebutted that assessee carried out the cultivation activities. In the absence of any rebuttal, the recordings in the RTC and also the facts of cultivation, coupled with the lapse of two years brings back the character of agricultural land. He further objected to the Assessing Officer's finding that the assessee had not declared agricultural income for the purpose of income-tax. The assessee did not disclose any income because he was having no income from agricultural operations. The character of the adjoining land is not the sole criteria. The assessee fetched high price because of the location of the land. In view of the above, the high price fetched by the assessee cannot be a point against the assessee and it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t undertaken as claimed by the revenue authorities. 18. Inviting our attention to the report of the Income-tax Inspector, Ward- 3, Mandya, dt.27.12.2007, the representative submitted it is clear that even after conversion of the agricultural land into non- agricultural, assessee has not made any tax payment to Tahsildar or to the Grama Panchayat which is also clear from the letter hereinabove mentioned dt.1.3.2005. 19. Inviting our attention to the written submission at page 44, the learned representative submitted the conclusion of the Assessing Officer that the assessee had not carried out any agricultural activity is wrong. While answering to question no.8, the assessee stated that the assessee carried out agricultural activities. Since the assessee has not made any application, it shows that even after the conversion, the assessee had put the land for agricultural purpose and not for non- agricultural and residential purpose. In the hands of the assessee, the character remains as agricultural land. It is an admitted position that the assessee has not paid any conversion charges as the assessee was using the land for agricultural purpose. The conversion by making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited our attention to the decision of the Supreme Court in Commissioner of Income-tax v. Raja Benoy Kumar Sahas Roy (1957) 33 ITR 466. 23. He further submitted that in the case of Prasanna Gowda, one of the assessee's before us, the Commissioner of Income-tax(A) has decided the issue in assessee's favour on facts and particularly assessee's representative relied on the decision at page 5 para 4 of his order. In this case, according to the Commissioner of Income-tax(A), the Assessing Officer considered the land as capital asset because of the orders of conversion of land for non-agricultural purpose. However, the Commissioner of Income-tax(A) took note of clause (10) of the conversion order which shows that if the land remains unutilized for the purpose for which it was converted within two years from the date of the order, then the order becomes unoperational. He held the conversion order was not valid on the date of sale, except a portion of the land in the case of the assessee i.e., Prasanna Gowda in ITA.177/Bang/2009. Thus, he held that it is a strong presumption that the status of the land was an urban land. Therefore, in the case of Prasanna Gowda, the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Conversion of land from agricultural purposes to nonagricultural purposes, i.e., development of residential layout had taken place in the Financial Year 1995-96, i.e., 10 years before the date of transfer of the land; b) The assessee has acquired the land in the Financial Year 1995- 96 by way of execution of GPA by the original landlords in favour of the assessee for the purpose of sale of sites formed by the landlord. As such, the fact has been clearly highlighted in the registered GPA without any ambiguity; c) Subsequent to conversion of the land for non- agricultural purposes, the taxes were collected by the Grama Panchayat instead of Tahashildar, indicating that no agricultural activities were conducted subsequent to conversion of the land; d) At the time of transfer of the land, no standing crop or trace of agricultural activities were found as evidenced from the contents and description of the property recorded in the registered sale deed ; e) The property under reference is located in the thickly populated industrial belt/suburb of Bangalore which ITA.1464, 1465/B/08; 177, 178, 262 305/B/09 Page - 30 is about 18 kms away from the corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka, decided a similar issue vide ITA No.209/2003 dt.2.1.2008. The facts of the case are that the assessee is an agriculturist who purchased agricultural land of about 41 acres between 1977 and 1992 at Goolimangala village, Sarjapur Hobli, Anekal Taluk and the entire land purchased was agricultural land, which was not a converted land. The land so purchased is also in green belt area and even the assessee never applied for conversion of land use. During the previous year relevant to the Assessment Year 1998-99 the assessee sold about 35 acres of land and the remaining was still with the assessee. Some plantation was made and was converted into smaller size of plots and after incurring development expenses, sold the same to different parties. The Assessing Officer held that the transaction carried by the assessee indicate an intention to earn profit which is in the nature of trade. The view of the Assessing Officer was upheld by the Commissioner of Income-tax(A). In appeal before the ITAT, the assessee raised two grounds. i) That the surplus on sale of agricultural land would be subject to tax only under the head income from capital gains and not as income from business; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst such individual as per the provisions of the land revenue act clause 84 of 1996. 30. In reply to the above, assessee's representative briefly submitted as under. The assessee is an agriculturist. Inviting our attention to the decision of the Commissioner of Income-tax(A) in the case of Thimme Gowda (ITA.178/B/09), he submitted the undisputed facts are that the lands are situated beyond 8 kms from the corporation limits. The lands were converted to commercial/residential usage in 1999, but was never put to use for the converted purpose. The land was used for agricultural cultivation. He further submitted that for the land to be treated as agricultural land, carrying on of agricultural activities is of paramount importance. Phani extracts was produced before the Assessing Officer to prove the facts that the lands were under cultivation of the crop ragi. Evidence to the effect that the lands were used for agricultural purpose even on the date of sale, in the form of record of rights and Phani extracts (RTC) were issued by the Village Accountant in Form no.2 of the Karnataka Land Reforms Rules, 1966. This is a statutory record maintained by the government as required un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands which show that the taxes were levied as agricultural land and not as non-agricultural land. Evidence to this effect was also produced. 31. The learned representative for the assessee again brought our attention to the application made by the Tibetan Childrens' Village, dt.1.3.2005 in which it was stated that assessee had not made renewal application after the lapse of time and Tibetan Childrens' Village. It was they who not only paid the penalty but also got the land converted by making renewal application. If the land had been used for intended purpose, there was no need of renewal application and payment of penalty. 32. Inviting our attention to page 5 of the paper book dt.27.1.09, the assessee's representative submitted the report of the Horticultural, Agricultural and Sericultural Departments of the Government of Karnataka is found in the assessment record of Thimme Gowda for earlier years which bears the evidence for existence of grown crops like coconut, sapota and mango which are permanently yielding year after year. The income has been increasing as against reduced expenditure towards maintenance year after year. The income was divided between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause, he may be notice served upon the land owner and any other person entitled to be or in possession of the land require such persons to cultivate the land within one year from the date of service of such notice. Reading of the section makes it clear that if the Assistant Commissioner having jurisdiction over the area is satisfied that the land within his jurisdictional domain remained uncultivated for a period of not less than two consecutive years without sufficient cause, he may issue a notice to the land owner or to any other person entitled to be in possession of the land requiring them to cultivate the land within one year from the date of service of the notice. The case of the Department is that no such notice was issued by the competent authority. Therefore, the land was utilized for non-agricultural purpose as intended. We are unable to agree with the above contention. Perhaps this would indicate the other way. If the land has not been used within two years of issue of conversion order, notice should have been issued to utilize the land for agricultural purpose within one year. Since the notice has not been issued, the claim of the assessee that the assessee was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has not been lost. It is true the assessee had no case that the entire land was used for agricultural activities. But the RTC certificates produced by the assessee also indicates that the lands were used for agricultural activities. However, we find that there is a specific finding by the Commissioner of Income-tax(A) in the case of Prasanna Gowda in ITA No.177/Bang/09 that 10 acres and 10 guntas of land sold on 2.6.06 converted on 2.4.06 was capital asset and he further directed to compute long -term capital gains on this sale. In the absence of any evidence to the contrary, we confirm the order of the Commissioner of Income-tax(A) in ITA.177/Bang/2009 to this extent on facts. 34. Coming to the decision relied by the DR reported in Merchant (ZM) v. Commissioner of Income-tax - 177 ITR 512(Bom), wherein there was a specific finding by the Tribunal that there was no agricultural activity undertaken by the assessee. In this case, the said City Survey Officer said that the land bearing survey No.1393, 1394 and 1395 was agricultural land. The land fell within the town planning scheme and was also within the municipal limits of Surat city. There was a specific finding by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity, is to be accepted. 36. Coming to the decision relied by the learned DR in the case of Commissioner of Income-tax v. Shiv Chand Satnam Paul - 231 ITR 663 (P H), this was a case wherein the Tribunal held that the land was located within the municipal limits and does not fall within the ambit of capital asset. The Hon'ble High Court held that the Tribunal become coming to such a conclusion should have satisfied itself regarding the remaining two ingredients mentioned in Section 2(14)(iii)(a) regarding population not less than 10,000 according to the last preceding census and the land was situated in any area within such distance, not being more than eight kilometres from the local limits. Therefore, this decision relied by the DR is not applicable to the instant case. 37. Coming to the decision reported in CWT v. Officer-in-charge (Court of Wards), Paigah, the issue involved was as to what could mean or what could be treated as agricultural land within the meaning of section 2(e)(i) of the Wealth-tax Act, 1957. The Hon'ble High Court held, the land could be treated as agricultural land for the following reasons : (i) the area was 108 acres abutting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned that the department had estimated the agricultural income at ₹ 53 lakhs for 2004-05 and estimated the agricultural income of the group at ₹ 56 lakhs. Therefore, it is difficult to come to the conclusion that in the hands of the assessee, the character of the land had changed. Merely because the original owners had made application to change the character of the land from agricultural to nonagricultural and certificate was issued to that effect. Even for the revenue, there is no case that the land has been used for the intended purpose. 38. In the decision of Gujarat High Court relied upon by the DR, in the case of Gordhanbhai Kahandas Dalwadi v. Commissioner of Incometax (1981) 127 ITR 664, the Hon'ble High Court held that the potential non-agricultural use does not alter the character of the land. This was a case wherein the land was purchased in 1954 and subsequently sold in 1969. The entries in the revenue records showed that the land was agricultural continued to be so. The land revenue paid was for agricultural use, but permission for non-agricultural use was obtained but not before the date of the sale. In these circumstances, the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the land, which is evidenced by the letter dt.1.3.2005 which was written to the Secretary, Manchanayakanahally Gram Panchayat by the Tibetan Childrens' Village. In the case decided by the Hon'ble High Court, it was held that the correct test to be applied was whether on the date of sale of the land whether the land was agricultural or non-agricultural and not the intended purpose and how the purchaser was going to use the land. 39. Now, we proceed to deal with the various appeals separately, as under. ITA.1464/Bang/2008 - By the assessee, Shri. M. N. Manjunath - Assessment Year.2005-06 : 40. In the first effective ground, the assessee's grievance is that the revenue authorities were not justified in bringing to tax the income on sale of land as non-agricultural. We have elaborately dealt with this issue and given our findings in the paragraphs 33 to 38 above and we have concluded that the land was agricultural on the date of sale and hence, this ground by the assessee is allowed. 41. Coming to the second effective ground, the assessee's representative submitted he is under instruction not to press this ground. Hence, this ground i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46. Coming to the third ground which is against charging of interest u/s.234B, we hold that the Assessing Officer may give consequential relief after giving effect to our order. 47. In the result, appeal by the assessee is allowed. ITA.262/Bang/2009 - By the assessee, Shri. T. Suresh Gowda - Assessment Year.2005-06 : 48. In this appeal by the assessee, the only effective ground is against charging long term capital gains on the sale of agricultural land. This ground by the assessee has been dealt with by us in the superceding common paragraphs and we have given our findings in paras 33 to 38 and also in the connected appeals of Prasanna Gowda and Manjunath. 49. In the result, appeal by the assessee on this ground is allowed. ITA.177/Bang/2009 - By the Revenue in the case of Shri. T. Prasanna Gowda - Assessment Year.2005-06 : 50. Ground no.1 is general in nature and does not call for any specific dealing as such. 51. Coming to ground nos.2 to 12 which is confined to one issue wherein the revenue is challenging the finding of the Commissioner of Incometax( A) that a small portion of the land extending to 10 acres and 10 guntas that was sold on 2.4.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly because in the document, the nature of the land has been recorded as non-agricultural under the Karnataka Land Reforms Rules, 1966. While coming to the above conclusion we also held that this is a document maintained by the Government officials and treating the same as not valid in the absence of strict evidence to the contrary cannot be upheld. 55. On similar set of facts in the connected other cases, we have held that the land sold by the assessee is to be treated as agricultural land and the reasons given is applicable in the instant case of the assessee as the facts are identical. Appeal by the revenue on this ground fails. It is not contended specifically as to what were the fresh evidences filed. According to the assessee, the issue was already discussed and the evidences were before the Assessing Officer. On the Commissioner of Income-tax(A) calling for further evidence, the assessee filed letters written by the Tibetan Childrens' Village which in fact was not additional evidence but in support of the evidences which were already before the Assessing Officer. Hence this additional ground by the revenue is to be dismissed. 56. Apart from the above additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA.262/Bang/2009 are allowed. Revenues' appeals in ITA.177 178/Bang/2009 and ITA.305/Bang/2009 are dismissed. 7. In the case of ITO v. Smt. K. Leelavathy Shri T. Raghavendra Gowda in I.T.A. No. 997 998/Bang/2010 dated 28.02.2011, the ld. CIT(A) has found that the said land was initially converted from agricultural land to non-agricultural/residential purpose by the original owners of the land but the land o converted was required to be put to use for non-agricultural purpose within two years from the date of conversion order. But it was not so put to use and therefore, the order was to be treated as null and void automatically. He further observed that in similar case of T. Suresh Gowda, the ITAT has held that it is an agricultural land and only certain portion of the sale consideration is exigible to capital gains tax. Following the said order of the ITAT, the ld. CIT(A) has allowed the assessee s appeal. Against the order of the ld. CIT(A), the Revenue preferred further appeal before the Tribunal. By following the above decision in the case of T. Suresh Gowda (supra), the Bangalore Benches of the Tribunal dismissed the appeals of the Revenue. Against the above ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see during regular assessment under section 143(3) of the Act, but, in the assessment under section 143(3) r.w.s. 263 of the Act, the Assessing Officer treated the same as income from other sources merely on the ground that the assessee has not produced any bills or vouchers either for sale of produce or for purchase of seeds etc. Even now also, it is not possible to obtain any pakka bill or vouchers for the sale of agricultural produce or purchase of seeds from surrounding farmers/villagers. 10. The ld. DR could controvert the above decisions of the Tribunal as well as Hon ble High Courts. However, the ld. DR filed reply to the test to determine whether the land is agricultural or not. We have perused and find that the ld. DR admitted that out of the entire land of 46.88 acres sold, the land had banana trees and coconut trees and moreover payment of land revenue has been made. However, the ld. DR stated that no agricultural operations like tilling and ploughing of the land are carried out by the assessee. We are unable to understand as to what for the tilling and ploughing are required when plantation crops are very much available in the said land. Admittedly, the land is not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning necessary approvals from the other Central and State Government departments under the applicable laws and regulations , which means, the approval accorded vide letter dated 23.09.2008 is only a preliminary approval and moreover, the assessee has not obtained any other approval from the Central and State Government Departments, which is a mandatory requirement, as has been confirmed by the Dy. Block Development Officer, Sholavaram Panchayat Union vide his letter dated 27.07.2015. Reply to point 6, the ld. DR stated that it was not used for agricultural purposes nor there was also no alternate use made of the said land. As on the date of photos taken on 30.12.2013 and filed in the form of paper book, we could see that there are huge coconut trees on the land and thus, the reply is not correct. In reply to point 7, the ld. DR went in wrong to state that only because banana trees and coconut trees lying in the land does not mean that agricultural activities were being done on the said lands, because, admittedly, both the crops are plantation crops, which need proper care otherwise, crop will die. We find that most of the replies stated by the ld. DR are incorrect or not supported ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
