TaxTMI 
TaxTMI 
2011 (10) TMI 484
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....he Act', hereinafter), raised by the assessee per its Ground No. 1 before us. This is for the simple reason that the same concerns the jurisdictional aspect of the assessment, an absence of which (jurisdiction to assess) would render the same as null and void ab initio. 3. The brief facts in relation to the said legal issue are that the assessee filed its return for the year u/s. 139(4) of the Act on 12.5.2006 at an income of Rs. 8.97 lakhs, which stood processed u/s. 143(1) vide Intimation thereunder dated 13.5.2007 (copy on record). Subsequently, a notice u/s. 148 was issued on 29.6.2007, recording the reasons to the effect that the Assessing Officer (AO) had reason to believe that the assessee was indulging in purchase and sale of land, profit and gains from which constituted a business or at least an adventure in the nature of trade. The assessee, however, had disclosed the same as capital gains subject to concessional tax, so that there had been an escapement of income chargeable to tax. The assessee furnished the details of the property sold, wherefrom the AO came to the conclusion that the purchase and sale of land did not represent a business; but only a sale or realisat....
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....is, ours] It is only matters that stand concluded by/in original assessment proceedings that were held by the hon'ble court as barred from being reagitated and subject to reassessment proceedings. The same, it would be readily seen, would also amount to a change of opinion, the concept of which, i.e., as a disqualification, continues to hold. Of course, it would be a different matter altogether if there is some fresh information qua such a concluded matter, not considered earlier and which has lead to the reopening of the assessment. The decision in the case of Travancore Cement Ltd. (supra) is squarely inapplicable and, rather, against the assessee inasmuch as it is clarified that only items unconnected with the escapement of income for which the notice is given, would be excluded, so that the AO shall have to issue a fresh notice u/s. 148. That is, the exclusion, as clarified, is only where the two items are unconnected and not aligned to each other, unlike in the instant case. The same are clearly connected, with the AO finding the undisclosed transactions only from the details of the land sales entered into by the assessee for the year. Consequently, the assessee fails on it....
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....and/s under reference as being a non-agricultural land/s. 8. We have heard the parties, and perused the material on record. 8.1 We may proceed to address the assessee's case as made out before us. The question of the three lands, as referred to in Table B (pg. 2) of the assessment order, as being either governed or not so by the Notification issued by the Central Government u/s. 2(14)(iii)(b) of the Act arises only once its status as an agricultural land/s is confirmed. In fact, the Revenue disputing the assessee's claim of the same being agricultural land/s, a claim qua being not notified u/s.2(14)(iii)(b) was neither made before nor consequently examined by the authorities below. As such, the only relevance or import of the argument advanced before us by the assessee in its respect is that in case the land/s under reference is held as agricultural land/s, the matter would require being restored back to the file of the AO for an adjudication on merits qua the aspect of its notification u/s. 2(14)(iii)(b). 8.2 Coming to the core issue, i.e., of whether the land/s under reference is agricultural land/s or not, we may at the very outset, clarify that the same has not been de....
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....ilding sites. (2) Sale of land for non-agricultural purposes. (3) Sale of land by a measure with reference to square yards and not acres. (4) Price being such as to be non-viable, if the land is put to agricultural use by the purchaser, while it is more consistent with the price fetched for urban plots than for agricultural land. (5) Character of the land. (6) The purpose for which the land was held by the present owner. A firm which holds it may well be presumed to have held it as stock-in-trade and not for carrying out agricultural operations. (7) As regards use of the land for agricultural purposes prior to sale, mere use in remote past though land revenue is paid, would not make it agricultural. (8) Mere capability of being used as agricultural land is not enough. 8.4 We shall, next, examine the facts of the case in the light and background of the facts, which, as well as the respective cases of both the parties, are in sufficient detail borne out by the material on record, including the orders by the authorities below. The land/s under reference has not been shown as used for agricultural purposes. There is noth....
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....l. This is as the assessee is owning various lands, while it is only the status of the land/s under reference as at the time of its sale that is relevant, so that even the agricultural activity thereon in the past would be of no avail, where the same has since been discontinued and there has been agricultural activity in the recent past, as sought to be emphasised by the Apex Court in the case of Smt. Sarifabibi Mohmed Ibrahim (supra) (Refer pgs. 642, 643). 8.5 In fact, before us, the main argument of the ld. AR in this regard was that the absence of agricultural activity would not disqualifying the land/s from being agricultural land/s, quoting the following from the decision in the case of Officer-in-Charge (Court of Wards) (supra):- "The land which is left barren but which is capable of being cultivated can also be 'agricultural land' unless the said land is actually put to some other non-agricultural purpose like construction of buildings or an aerodrome, runway etc. thereon which alters the physical character of land rendering it unfit for immediate cultivation." It appears that the ld. AR has not gone through the entire judgment by the Apex Court, which has been care....
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....nsideration of all the contending facts (refer pgs. 642, 643). 8.6 The other relevant indica are also in fact arraigned comprehensively against the assessee, and none of which is disputed. The land/s is located in a well-developed and a further fast developing area, with several housing as well as infrastructural projects having been set up, and more in the offing, i.e., at the relevant time. The land price is at par with the urban land prices and sold to non-agriculturists, ostensibly only for housing purposes, with one being actually sold to the managing partner of a firm setting up Villas. In fact, the Kakkanad area of the Thrikkakara Panchayath, i.e. where the land/s is situate, as is well known, the most sought-after place in the real estate deals. In fact, the actual and ongoing development translates into constantly increasing prices, so that the continued mention of land/s under reference in the revenue' record (i.e., assuming so; there being no reference to the Survey Nos. in the orders of the authorities below) as 'NILAM' (paddy fields), i.e., as the land of the area is being traditionally shown therein as, is of no consequence. As questioned by the ld. CIT(A), how cou....