TaxTMI 
TaxTMI 
2018 (5) TMI 1870
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....O that the land sold by the assessee was not Agricultural Land. 3. The Ld. CIT (Appeal) erred, in law and on the facts and circumstances of the case, in not appreciating and directing the AO to determine the tax payable on the book profit (including the profit on sale of land) as per the provision of section 115JB. 4. The appellant craves leave, to add, alter or amend any ground of appeal raised above at the time of the hearing." 2. The facts in brief are that the assessee company had purchased an agricultural land admeasuring 76145 sq. mtr at village Mandrem, Pernem Taluka, sub-District Pernem of North Goa at a cost of Rs. 18,12,130/-, by way of two purchase deeds; one dated 16.04.1992; and other dated 23.04.1992, falling in the Assessment Year 1993-94. The said land was surrounded by agricultural land and the Arabian Sea. Since the time of purchase the assessee company was holding the said land and stated to have been carried out some agricultural operation on it. This land was sold during the previous year relevant to the Assessment Year 2006-07 for a total sale consideration of Rs. 10.30 crore to 'M/s. Maha Seer Hotels & Resorts Pvt. Ltd.' The gain ....
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....t authority certifying that Mandrem village was situated at more than 8 km distance away from the jurisdiction of municipal limits and the same comes under the rural area. Letter dated 23-12-08 sent by the concerned govt, authority that is mamlatdar to Ld. AO, in response to his letter u/s. 133(6) confirming that the said authority has issued certificate about the said land being agriculture land. 3. Apart from above documents, the detailed explanation was also submitted before the Assessing Officer which again for the sake of ready reference is reproduced hereunder:- "This is to bring to your kind notice that as per Coastal Zone Regulation/India, defined by Ministry of Environment & Forests, No Construction/Development of Building either residential/commercial is permitted within the 200 meters of the sea beach. In the Present case, the construction is very old, since 1920 and now can be named as Heritage Property comes within 200 meters of the sea beach. (Kindly view attached map of Land). It means that old structure has no legal sanctity and has no commercial/Residential value in terms of rupees. Further it is submitted that this structure ....
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....and other persons working over there. Since no surplus was left, so that no income in this regard could be shown in the accounts. Caretaker and his team, obtained the crop of coconut. They sold part of it for their livelihood and they consumed Part of it. Remaining part was given to Assessee Company in the form of coconuts. This fact can be verified from the revenue record also as well as Office of Mamlatdar of Pernemn Taluka, Pernerm Goa." Applicability of Bombay Tenancy and Agricultural Land Act, 1948. "This is respectfully submitted that the said Act is not applicable to the state of Goa. As per section 1(2) of the said Act, is extended to the Bombay area of the state of Maharashtra. Extracts of section 1(2) of the said Act is enclosed herewith as per Annexure 4. Further, without prejudice, it is submitted that we have sold our agricultural land as such. No Charge of land Use i.e. CLU has been obtained by us or by the other party before sale of land. We have learnt that even till date the land is used for agricultural purposes only. We have further learnt that as per Regional Master Plan of Goa, No. CLU i.e. Change of Land Use is permitted. Your good s....
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....2851/P.O. No. 296396 9,80,00,000 12.11.2005 Ch. No. 252852/P.O. No. 296386 50,00,000 Total cost of Agricultural land purchased as per saleDeed Dated 01.12.2005 10,30,00,000 12.11.2005 Ch. No. 252854/P.O. No. 296389 for Assignment deeds 10,00,000 12.11.2005 Ch. No. 252853/P.O. No. 296388 for Compromisesettlement for withdrawal of case 10,00,000 Total amount paid 10,50,00,000 2. Copy of bank statement for the period 01.04.2005 to 31.03.2006 where above transactions have been routed through. 3. We are assessed to Income Tax with Permanent Account No. AADCM9908M, Income Tax Officer-Ward 6(1), New Delhi (Copy of acknowledgement for A.Y. 2006-07 is enclosed herewith). 4. The present status of the land is the same as during the A.Y. 2006-07 at the time of purchase of the land at Goa by us on plot 'B' of the property, there was structure standing thereon being House No. 365 bearing Survey No. 212 at Manderm Village, Goa." From the perusal of the facts stated herein above and the evidence brought before Ld. A.O. following 3 things are established:- 1. The impugned ....
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....as per the record available. Q.4. Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land? Ans. Not applicable. Since the assessee did not use the land for agricultural purposes as such there was no agricultural income. Q.5. Whether the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such user and/or alternative user was of a permanent or temporary nature? Ans. Cannot be determined in the absence of any evidence filed by the assessee. Q.6. Whether the land was sold on yardage or on acreage basis? Ans. The land was purchased and sold on the yardage basis. Q.7. Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield? Ans. Probably not keeping in view the sales consideration of the land sold and no agricultural income being derived by the assessee ....
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....ntrary material on record. Apart from the government records, certificate from a reputed firm of CA's was also submitted by Ld. A.O. The said land was open for verification by Ld. A.O. but unfortunately Ld. A.O. has displaced the claim of the assessee without there being any contrary material on record. The next doubt of Ld. A.O. was that the said land was sold to a prospective hotelier and therefore as such the future intended use was of non agriculture nature. Our respectful submission is that we fail to understand from where Ld. A.O. has picked up this intention. It is no where coming out from the sale deed that the said land was sold for commercial purposes. Even till date no permission for change in the land use has been obtained by the purchase. The land has been retained as it is and no commercial activity has been done. All these facts were before Ld. A.O. and he could not bring on record any contrary material from the concerned government authorities or the said purchaser and chose to make addition on the basis of his whims and fancies that too based upon his surmises and conjectures. Further, without prejudice to the above submissions it is respectfu....
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....ed by the ld. CIT (A) to clarify the entire facts which have been incorporated in the appellate order in detail. 8. Ld. CIT (A) after taking note of the arguments and contention raised by the Assessing Officer as well as by the assessee who has summarized the case of the Assessing Officer and assessee in the following manner:- "The AO held that the appellant company could not claim the land sold by it as exempt on the following basis: 1. The land has never been used for agricultural purposes as no agriculture income had been declared by the assessee in the preceding years. 2. As per the memorandum of association of the company, the main objects of the company was business of hotel, restaurant etc. and the land was purchased with the intention of pursuing the main object. 3. No land revenue was applicable on this land as per the assessee's letter dated 26.12.2008. 4. The land was sold on yardage basis and not on acreage basis. 5. The land had been sold to a prospective hotelier. 6. The land had been sold along with certain structures built on it and as such the sale of the land was treated as sale of house propert....
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....zone area where no construction is permitted. The registry does not reflect the sale of land on yardage basis but shows a consolidated amount as sale proceeds. The AOs observation that the land was not actually used for agricultural purposes in as much as no agricultural income was derived from this land and was not shown by the assessees in their income-tax returns has been explained on the basis that there were coconut trees in the land but the agricultural income derived by sale of the coconuts was just enough to maintain the land and there was no actual surplus. If an agricultural operation does not result in generation of surplus that cannot be a ground to say that the land was not used for agricultural purposes. Further, the decision of the jurisdictional high court is that not even carrying out agricultural operation does not alter the nature and character of the land. The judicial pronouncements thus squarely cover the case of the appellant company. The sale proceeds of the land are therefore treated as income from sale of agricultural land and therefore exempt from capital." 10. Before us the learned Department Representative after referring to the various observations ....
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....ar 1968-69. Further, in the instant case, the facts in assessees favour were land being registered as agricultural land in the revenue records; payment of land revenue in respect thereof till the year 1968-69; absence of any evidence that it was put to non-agricultural use by the assessees; that the land was actually cultivated till and including the agricultural year 1964-65; that there were agricultural lands abutting the said land and that the assessees had no other source of income except the income from the said land. The facts appearing against their case were: The land was situated within the municipal lands - it was situated at a distance of one kilometer from the Surat railway station; the land was not being cultivated from the year 1965-66 until it was sold in 1969; the appellants had entered into an agreement of sale with a housing cooperative society to sell the said land for an avowed non-agricultural purpose, namely, construction of houses; they had applied in June 1968 and March 1969 for permission to sell the said land for non-agricultural purposes under section 63 of the Bombay Tenancy and Agricultural Lands Act and obtained the same on 22-4-1969; soon aft....
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....e Regulation of India, no residential or commercial building was permitted within 200 mtr. of sea beach. Hence there could not be sale of house property. Besides this the area in which old house was standing was around 0.02% which is very miniscule. Secondly, the assessee company has been using this land of agricultural operation only and no other use of this land has been taken at any time; Thirdly, the land was situated much beyond the prescribed municipal limit of 8 km and in fact it was around 25 km from the municipal area. Fourthly, at no point of time there was any change of use of land permitted by the authorities even when the assessee was holding the land and also after the sale of the land. In fact the land remained the agricultural land till today. The Assessing Officer in fact has made inquiry from the purchaser, namely M/s. Maha Seer Hotels & Resorts Pvt. Ltd., who has confirmed to the Assessing Officer that the impugned land was an agricultural land even as on date and the same status of the land is maintained. The relevant portion of the reply filed by the purchaser has already been incorporated in the foregoing paragraphs; and Las....
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....ating to Rs. 18,12,130/-. This land was sold during the relevant year for a sale consideration of Rs. 10.30 crores to M/s. Maha Seer Hotels & Resorts Pvt. Ltd. and the gain from such sale of land has been claimed as exempt by the assessee, that is, it is an agricultural land not covered under the definition of assets u/s. 2(14)(iii). ii. The said land as per the Land Revenue records and also certified by the local authorities was used as agricultural land and such character of land remained the same at the time of purchase and also during the time of sale. The certificate of land revenue records clearly shows that entire land was cultivable area on which certain agricultural operations were carried out. iii. Admittedly, the land was beyond the municipal limit of 8 kms of Mapusa Municipal Limit (in fact was 25 Kms away from municipal centre). The Assessing Officer had carried out inquiry from the concerned local authorities and in response, Mamalatdar confirmed that he issued the certificate about the said land being the agricultural land. iv. Inquiry was made from the purchaser by the Assessing Officer, who duly confirmed that the present status of the la....
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....ed Ibrahim & Ors. vs. CIT (supra), we find that in that case part of the plot was converted into non agricultural purposes before the sale; secondly, the land was sold to a Co-operative Housing Society solely for non agricultural purpose, i.e., construction of house; and lastly, the said land was within 1 km of railway station of Surat and was within the municipal limit. Apart from that, permission to sale the land for non agricultural purpose was obtained and immediately thereafter sale deeds were executed. Thus, this decision is not applicable on the facts of the present case. On the contrary, we find that Hon'ble Bombay High Court in the case of CIT vs. Smt. Debbie Alemao, 331 ITR 0059 (surpa), on almost similar set of facts had observed and held as under:- The AO has noted that the said land was entered in the revenue record as an agricultural land i.e. garden or orchard. The Tribunal also held that the land was recorded in the revenue records as an agriculture land. This is not disputed by the Revenue. It is however contended that the land was not actually used for agriculture in as much as no agricultural income was derived from this land and was not shown by the respo....
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....id land would clearly be held as agricultural land irrespective of the fact that assessee intended to use the land for industrial purposes and did not carried out any agricultural operations. Even then also no capital gain could be charged on sale of such agricultural land. Similar view has been taken in the case of DLF United Ltd. vs. CIT (supra). Thus, in view of our independent appraisal of facts on record and the ratio as culled out from the decision cited by the parties, we do not find any infirmity in the order of the ld. CIT (A) that the gain on sale of such land cannot be taxed as capital gain. 19. Coming to the issue of 115JB as raised in ground No. 3, we find that, firstly, neither the issue of computation or taxation of book profit u/s. 115JB has been raised by the Assessing Officer; nor such grounds were raised in the original grounds of appeal by the Department. Apart from that, once Assessing Officer has not treated the said gain for the purposes of book profit then by way of such ground the issue cannot be raised by the Department. Otherwise also when the income of agricultural land is exempt from tax, then the said exempt income cannot be added to the books profi....