TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 541
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....ng the course of assessment proceedings, the Assessing Officer found that the assessee sold agricultural land which results in long term capital gain and after considering the exemption u/s.54B of the same was worked out to "Nil‟. The Assessing Officer however, held that the profits realized on sale of the land at S. No. 434 at Village Urawade, Tal. Mulshi constituted business income and also denied the exemption claimed u/s.54B of the Act. 3. The Assessee has challenged this treatment of the capital gain before the Ld. CIT(Appeals). A detailed written submission was filed by the assessee before the Ld. CIT(Appeals). The assessee had submitted that the agricultural land sold was not a capital asset within the meaning of Section 2(14) of the Act because it was situated at a distance of more than 10 kms from the limits of municipal corporation and the population of the Village Urawade was less than 10,000 as per the census of 2001 and the land was an agricultural land and was used as such by him. The assessee had filed certificate dated 29.11.2011 issued by the Gramsevak of Grampanchayat Urawade, Dist. Pune claiming that the gains realized on sale of land were exempt from taxa....
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....ssification and assessment of land by the Land Revenue Authorities clearly certifies that the land is being used for agricultural purposes. The assessee has placed reliance on the following decisions: i) CIT Vs. Minguel Chandra Pais (2006) 282 ITR 618 (Bom.) ii) CIT Vs. Smt. Debbie Alemao (2011) 331 ITR 59 ( Bom.) 5. The Ld. CIT(Appeals) further observed whether a particular land is agricultural land or not is essentially a matter decided on facts. Profit motive in selling the land would not make any difference as decided in Gopal C Sharma Vs. CIT (1994) 209 ITR 946 (Bom.). It is in the light of the guidelines available from the decisions that the Hon‟ble Bombay High Court upheld the findings of the Tribunal in respect of assessee‟s claim that the land was agricultural so that there is no liability for capital gains tax as held in CIT Vs. Minguel Chandra Pais & Others (2006) 282 ITR 618 (Bom.). That for the purposes of wealth tax or capital gains tax or even for the purposes of determination of the character of income from such land as to whether it is agricultural income or not, ultimately it is a question of inference to be drawn from all the facts. One such fact....
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.... that land in order to qualify for deduction u/s.54B of the Act. 7. Per contra, the Ld. AR invited our attention to the facts of the case relied upon by the Ld. DR as herein above mentioned. In that case, as per the 7/12 extracts, the land was Jirayat fallow land i.e. land being not capable of cultivation. However, in this case of the assessee, in the 7/12 extracts, it is clearly pointed out that the land is an agricultural land and even the revenue records shows that the revenue had been payed by the assessee on such land. Therefore, factually the case is substantially different from that of the assessee. In that case referred by the Ld. DR, apart from 7/12 extracts, no other evidences were brought on record and therefore, it was held that 7/12 extracts is not a decisive test in order to determine the nature and character of the land. However, in the case of the assessee, it is clear cut position that the 7/12 extracts directly states the land to be an agricultural land. In such situation, the assessee has placed reliance on the decision of the Hon‟ble Bombay High Court as have been mentioned in the submissions made before the Ld. CIT(Appeals) which also formed the part of ....
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.... contrary, though the Revenue is taking the transaction as business income they have not brought in any evidence on record neither they have conducted any specific enquiry to show that it is business transaction. The assessee through his Ld. AR claims that he was never cross examined by the Assessing Officer. 8. We find that the Hon'ble Bombay High Court in the case of Commissioner of Income Tax Vs. Smt Debbie Alemeo (supra.) has held that "land shown as agricultural land in revenue records, admittedly the land was shown in the revenue records as agricultural land and no permission was ever obtained for non agricultural use by the assessee. Permission for non agricultural use was obtained for the first time by the purchaser after it purchased the land. As regards the contention of the Revenue that no agricultural income was shown from this land, it was explained by the assessee that the agricultural income derived by sale of coconut grown on the land was just enough to maintain the land and there was no surplus. Therefore, land which was shown as agricultural land in the revenue records and never sought to be used for non agricultural purposes by the assessee till it was sold has....