2012 (12) TMI 900
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....ed that the Tehsildar is not a competent authority to issue a certificate regarding distance of land from the municipal limit. A plea was also raised that the land was sold to developer. Our attention as invited to various pages of the paper book. Reliance was placed on the decision in Arundhati Balkrishna v. CIT [1982] 138 ITR 245 (Guj), CIT v. Smt. Sarifabibi Mohmed Ibrahim [1982] 136 ITR 621, Kalpetta Estates Ltd. v. CIT [1990] 185 ITR 318, CIT v. Gemini Pictures Circuit (P.) Ltd. [1996] 220 ITR 43 and Fazalbhoy Investment Co. (P.) Ltd. v. CIT [1989] 176 ITR 523. On the other hand, the learned Counsel for the assessee defended the impugned order by submitting that the impugned land was inherited by all the brothers and was also sold as a composite sale being composite land. It was explained that one of the brothers was carrying out agricultural operation and it is not necessary that every brother will tilt the land himself. A plea was also raised that the Assessing Officer as well as the Inspector of the Income Tax Department visited the land, the map was prepared by the Inspector himself. The learned counsel took us to various pages of the paper book through which he tried to e....
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....7 kms by road from the municipal limit by a straight distance method. The map of the land (page 10) was prepared by the Income Tax Inspector himself, therefore, disregard to such document is not justified. A certificate has been issued by the Executive Engineer, Public Works Department (page 11 of the paper book) wherein it has been specifically mentioned that the impugned land is 9.6 kms from the municipal limit. The Land Revenue Officer (Tehsildar) had also mentioned the Survey No. 95 Area 4.22 acre, Survey No. 96/1 area 1.20 acre and has mentioned that the land in question is about 10 kms from the municipal limit and the population of the village is about 2000 persons. The assessee has also produced a certificate from the land Surveyor (page 14) wherein it has been mentioned that the impugned land is situated at 9.09 kms from the Municipal limit. The assessee has also placed on record the google map (page 13). All these certificates clearly say that the impugned land is situated beyond 9 kms from the municipal limit, therefore, as per section 2(14)(iii) of the Act, the impugned agricultural land is situated in the revenue record of village Lasudia Parmar whose population is abou....
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....fore, may not help the revenue. A decision from Hon'ble Kerala High Court in Kalpetta Estates Ltd. (supra) was relied upon. In that case, it was held that burden of proof is on the assessee to prove that the land was agricultural land at the time of transfer and forest lands were acquired with the intention of extending plantation. Since no agricultural operation was carried out, it was held that it gives rise to capital gain on the sale of such land. In the case of Smt. Sarifabibi Mohmed Ibrahim (supra) the land was situated near railway station and was sold on square yard basis to housing society. The profit from the sale of such land was held to be assessable to capital gains tax. Keeping in view the location and other attendant circumstances, it was held to be assessable to capital gains tax. 5. The learned counsel for the assessee relied on the decision of the Hon'ble Bombay High Court in Smt. Debbie Alemao (supra) wherein the land, in question, was shown in the revenue record as agricultural land and no permission was taken for conversion of land use. It was held that since no agricultural income was shown in the return is not the material for the purposes of gains from sale....
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....nt board, etc. The notification has to take into account the extent of and scope for urbanisation of that area and other relevant considerations. The reckoning of urbanisation as a factor for prescribing the distance is of significance which would yield to the principle of measuring distance in terms of approach road rather than by straight line on horizontal plane. If principle of measurement of distance is considered straight line distance on horizontal plane or as per crow's flight then it would have no relationship with the statutory requirement of keeping in view the extent of urbanisation. Such a course would be illusory. It is in pursuance of the aforesaid provision that Notification No. 9447 dt. 6th Jan., 1994 has been issued by the Central Government. In respect of the State of Punjab, at item No. 18 the sub-division Khanna has been listed at serial No. 19. It has inter alia been specified that area upto 2 kms from the municipal limits in all directions has to be regarded other than agricultural land. Once the statutory guidance of taking into account the extent and scope of urbanisation of the area has to be reckoned while issuing any such notification then it would be in....
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.... in the revenue record, the particular land is recorded as agricultural land and till the date of sale, it is exploited as agricultural land and the owner of the land has not taken any step to indicate his intention to exploit the land for non-agricultural purposes then such land to be regarded as agricultural land. The purpose for which such land is sold is not of much importance and weight. If the department is in a position to prove that it was used as agricultural land as a stop gap arrangement and its land use was changed before the sale then the situation may be different. Whether the land is an agricultural land or not is essentially a question of fact. A close reading of section 2(14)(iii)(a) seems to suggest that it is the population of the municipality that has to be taken into account and not the population of any area within the municipality. It may be that a municipality may comprise of many villages, wards and street and each assessee may claim that the limit of population is provided with reference to a place, ward or street. In such an event, the section will have no uniform application and will lead to many anomalies. Panchayat is different from municipality. Munic....