2018 (7) TMI 749

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....not a capital asset even though it had been declared as a part of industrial area by the Govt. and had in fact been sold as non agricultural land. 2. The order of the ld CIT(A) be set aside and that of the Assessing Officer be restored." 3. The assessee has also filed cross objection in this appeal, however same is supporting the order of the ld CIT(A). 4. Despite notice none appeared on behalf of the revenue as well as the assessee and therefore, the issue is decided on merits of the case as per information available on record. 5. The brief fact of the case is that the assessee is a proprietor of M/s. Saheed Filling Station, Mussoorie Road, Dehradun, which is authorised retail outlet of M/.s Hindustan Petroleum Corporation. The asse....

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....ition of Rs. 98.59 lacs to the sale consideration of Rs. 78.50 lacs applying provision of section 50C of the Act as long term capital gain where the cost of acquisition is Zero. 6. Consequent to the order passed u/s 143(3) of the Act dated 31.12.2012, assessee preferred an appeal before the ld CIT(A) who held that the assessee has sold agricultural land as it has been proved by the certificate of Tehsildar and other land records. He further held that merely because the land is declared as „industrial land‟ same cannot be held to be a „capital asset‟ and „capital gain‟ cannot be charged on sale of „agricultural land‟. He further held that as the assessee‟s land was very small and the inc....

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....cultural land even today and stand in the revenue record. There is merit in the assessee's submission that the size of the land being small it was not conducive to sell agricultural produce from land in market after consumption. However, the fact that she was continuously carrying out agricultural activities on the same is proved by the certificate of the Tehsildar, report of the Halka patwari and the land records. On 31.12.2009 the land was sold to the parties mentioned in the order of the Assessing Officer. At least two of these parties were industries. However, The assessee did not apply at any stage for converting the land to non-agricultural u/s 143 of the U.P. Zamidari Abolition and Regulation Act. The case of the assessee is distingu....

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....f N.Srinivas Rao vs. Special Court under the A.P. Land Act the Hon'ble Supreme Court held that "except for the fact that the said land were now included within the urban area, there is nothing to show that the user of the same had been altered with the passage of time. The decision in Sarifabibi's case (supra) cited by Mr. Parasaran does not therefore, help his client case." Accordingly, the Hon'ble Supreme Court held that the tenant in the instant case remained an agriculturist and therefore, transfer from an agriculturist to a non-agriculturist which was expressly prohibited under that Act was invalid. Relying on this decision the Pune Bench of ITAT in the case of Haresh V Milani vs. JCIT 111 TTJ 310 Pune held that mere fact that the ....