TaxTMI 
TaxTMI 
2011 (4) TMI 339
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....57 ('the Act' hereinafter) for each of the years under reference. While the assessee/s claims it to be an agricultural land and, in any case, not an 'urban land' within the meaning of the term under section. 2(ea)(v) of the Act r/w Explanation (b) there-to, the Revenue claims it to be so. For the sake of discussion, we shall refer figuratively to the case of Smt. Ganga Sreeharshan. 3.1 The basis of the Revenue's claim is that the area of the assessee's property falls within Sreekariyam Panchayath (District Trivandrum), located within 8 kms. of the limits of the Trivandrum Municipal Corporation (TMC), and has a population of 49145 as per the 2001 census. Further, the Survey Number (New Survey No. 126), i.e., in respect of the assessee's land, is marked as residential plots with private road access as per the Gazette Notification by the Government of Kerala (ref: website http://igr.kerala.gov.in. landvaluesearch.aspex). In fact, the entire property falls within the notified area of Thiruvananthupuram Development Authority ('TRIDA' for short) and has been developed by the assessee's family members as residential plots in the name of "Sri Harshan Gardens", as mentioned in Document N....
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....re the same is occupied by a building, the same, along with the land appurtenant there-to, used for any purpose, including as a farmhouse, the said limit would stand extended to 25 kms. Besides, it would not be subject to the condition of being notified by the Central Government, as is the case in the case of a bare piece of land. This issue, going to the root of the matter, i.e., the nature of the assessee's property and, further, arising from her own contentions would warrant examination. If, and to the extent, it is a farmhouse, and which would need to be separately examined qua the same, it is liable to be covered under section 2(ea)(i) of the Act. Also, how the land appurtenant to the building was being used by the assessee, i.e., for agricultural purposes or otherwise, would also not be of much relevance. The matter would therefore require examination on facts, being primary facts, at the end of the Assessing Officer (AO) before a final decision in the matter could be taken. The Assessing Officer shall do so per a speaking order, after allowing proper opportunity of being heard to the assessee. We decide accordingly. The Tribunal, as a final fact finding authority, it may be ....
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....a in which such land is situated or the land occupied by any building which has been constructed with the approval of the appropriate authority or any unused land held by the assessee for industrial purposes for a period of two years from the date of its acquisition by him." 4.3 It would be, at the outset, relevant to consider the assessee's claim with regard to agricultural operations. We find no reference to any agricultural operation or activity in the definition of 'urban land' under the Act, so that the same is of no moment. Even otherwise, neither the land revenue record, exhibiting the crop/s cultivated from year to year nor the land revenue/cess paid, has been produced. Agricultural income is subject to tax in Kerala, and toward which, again, no material stands adduced at any stage. As such, the assessee cannot be said to have established the performance of agricultural operations on her land for the relevant years, even as held by the Revenue authorities. The same, however, we find, at the cost of repetition, of no relevance. The question is not whether the land under reference is an agricultural land (which is not defined under the Act or under the Income-tax Act, 1961....
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....o travel back to the file of the Assessing Officer for verification and issue of the relevant finding(s). Also, a huge time gap attending the date of the issue of Notification and the Certificate from the Panchayath being relied upon by the assessee, and the fact that the limits and configuration of Wards would be subject to change over time, and also as a matter of abundant caution, being in relation to a factor which could be decisive of the matter, it would be advisable, nay, necessary, to confirm that the land under reference was at the time of issue of the said Notification, or at any time thereafter (up to 31-3-2005), not comprised in either Ward No. 3 or Ward No. 4 of the Sreekariyam Panchayath, i.e., the notified areas. This becomes all the more relevant as the concept of Wards, i.e., generally speaking, exists only vis-à-vis Municipalities and not Panchayaths. Such a confirmation would conclusively establish the land under reference as being not under a notified area under section 2(ea)(v) r/w Explanation (b)(ii). 4.6 With regard to the Revenue's claim of the land falling within the urban agglomeration of TMC as also within the notified area of TRIDA, set up unde....
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....n view of being constituted under section 53A of the Town Planning Act, 1108E. The Revenue refutes it by stating the same to be of no relevance in view of the specific definition under section 10(20). In this regard, we find the ld. CIT has only directed the Assessing Officer to make proper inquiries, and redo the assessments accordingly. The same would only imply of them being made in accordance with the law, as enunciated by the higher courts of law, considering all the relevant aspects, including the scope of the amendment (i.e., what was sought to achieved thereby) as well as the facts of the assessee's case, which would include the State legislation being relied upon, making due inquiries, and after allowing proper opportunity to the assessee to present its case before him. The relevant question would be the satisfaction or otherwise of the mandate of the defining provision. That the (State) legislation would legally entitle the 'Municipality', or would be entrusted by the (State) Government, with the management and control, underscores their respective relevance, and for which the provisions of the Constitution of India (Part IXA 'Municipalities') as well as the Kerala Munici....