2017 (12) TMI 1358

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....al appeal by vacating Annexure B order of the first appellate authority. The appellant was assessed to income tax by the Deputy Commissioner of Income Tax, Circle (2)1, Kochi, for the assessment year 2008-09 determining a total income at Rs. 10,86,71,781/- consisting of business income at Rs. 38,78,390/-, long term capital gain amounting to Rs. 10,34,89,809/- and the short term capital gain at Rs. 13,03,582/-. A demand was raised for Rs. 3,18,35,210/- as per assessment order dated 30-12-2010 at Annexure A. The appellant had executed an agreement on 10-10-2007 in favour of M/s Desai Homes for sale of land for Rs. 11 crores. In the return of income, the appellant had declared his income at Rs. 12,71,577/-, after claiming exemption/deduction a....

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.... with the Accountant Member vide order at Annexure F. Copy of the final order dated 07-05-2015 of the Income Tax Appellate Tribunal, Cochin Bench is at Annexure G. This order is challenged before us. 4. We heard the learned Senior Counsel appearing for the appellant and the learned Counsel appearing for the respondent- Revenue. 5. The only question that arises for consideration in this appeal is whether the ITAT vide majority decision was justified in holding that the property in question was not an agricultural land, thus upholding the disallowance of the claim of the assessee for exemption from 'capital assets'. 6. The learned Senior Counsel submits that the subject property is an agricultural land and therefore, not a capital asset wi....

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.... was held that the character and the nature of land are relevant in determining whether the land is agricultural land or whether the land is put to use for agricultural purposes on the relevant date. The mere fact that the area in which the land is situated is not notified under Section 2(14) would not enable exclusion of the land from the definition of 'capital gains'. Only agricultural lands are excluded and such exclusion will not be applicable if the area is notified under Section 2(14)(iii)(b). 9. It is observed by the Tribunal that the assessee is not an agriculturist and is the Proprietor of a Management Institute, and there is no evidence to indicate that the land has been put to any agricultural use. In the decision reported in Sa....