TMI Blog2021 (7) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land, then the parameters as stipulated under Section 2(14) has to be applied. In the instant case, we find that the Assessing Officer has not applied the parameters as stipulated under Section 2(14)(iii), inasmuch as either sub-clause (a) or sub-clause (b) would apply. Even while applying the said sub-clauses, there are certain criteria mentioned within the sub-clauses, which have been applied to the subject matter of transfer before demanding tax on capital gains on the transfer of land. Section 2(47) defines transfer in relation to a capital asset. Therefore, there has to be a transfer of a capital asset within the meaning of Section 2(47) of the Act, also before the said tax is attracted. Hence, if there is (i) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT APPEAL No.1078/2018 (T-IT) - - - Dated:- 15-7-2021 - HON BLE MRS. JUSTICE B.V. NAGARATHNA AND HON BLE MR. JUSTICE HANCHATE SANJEEVKUMAR Appellants (by Smt. Vanaja M.R. Advocate) Respondents (By Sri. Jeevan J. Neeralgi, Advocate) JUDGMENT NAGARATHNA J., Though this appeal is listed for preliminary hearing, with the consent of learned counsel for the appellants and learned standing counsel for the respondent-Revenue, it is heard finally. 2. The legality and correctness of the order dated 20.2.2018, passed by the learned Single Judge, in Writ Petition Nos.54836-387/2017, is called in question in this intra-court appeal. 3. By the impugned order, learned Single Judge in the first instance has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge was not right in making observations with regard to the fact that, the assessees choose to file a revision under Section 264 of the Act, instead of filing an appeal under Section 246A of the Act. 6. As already observed, it is the option of the assessee either to file an appeal or to file a revision. Therefore, all the observations made with regard to the assessees herein exercising their option to file a revision under Section 264 of the Act and not file an appeal under Section 246A of the Act, cannot be sustained. 7. Coming to the merits of the case, the grievance of the assessees was, the lands in question bearing Sy.No.119, Part, measuring 1 Acre 22 Guntas and Sy.No.213/1, Part, 3 Acres and 4 Guntas, situated at Vaja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, it is necessary to ascertain whether the subject matter of transfer, namely immovable property or land is agricultural land or not. If it is to be construed to be agricultural land, then the parameters as stipulated under Section 2(14) of the Act has to be applied. In the instant case, we find that the Assessing Officer has not applied the parameters as stipulated under Section 2(14)(iii), inasmuch as either sub-clause (a) or sub-clause (b) would apply. Even while applying the said sub-clauses, there are certain criteria mentioned within the sub-clauses, which have been applied to the subject matter of transfer before demanding tax on capital gains on the transfer of land. 9. Further, Section 2(47) defines transfer in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer has not considered the case in that light. 13. Learned Single Judge has simply extracted paragraphs 6 to 9 of the revisional order and has not considered whether subject lands were indeed capital asset or not, which was the subject matter of transfer in the instant case. 14. In the circumstances, we set aside the order of the revisional Authority, as well as the order of the Assessing Authority, dated 27.3.2017 and 21.3.2014 respectively. We remand the matter to the concerned Assessing Officer to consider the case of the assessees in light of the observations made above and in accordance with law and within the time stipulated after issuing notice to the appellants/assessees. 15. In the circumstances, the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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