TaxTMI 
TaxTMI 
2022 (10) TMI 228
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....d u/s.2(14) of the Income Tax Act, 1961 ("the Act"). 3. The CIT(A) has erred in law and on facts by coming to the conclusion that the agricultural land in question is not an agricultural land on the ground that no agricultural activity has been carried out by the Appellant on the said land. 4. The CIT(A) has failed to appreciate the fact that the Appellant has produced documentary evidences to substantiate that the land in question is situated outside the specified area as stated in sub-clauses (a) and (b) of clause (iii) of section 2(14) of the Act and as such the land in question is an agricultural land not liable to capital gain tax. 5. The CIT(A) has wrongly relied on the decision of Supreme Court in the case of Raja Benoy Kumar's case (1957) 32 ITR 466 (SC) and has wrongly come to the conclusion that the for the land to be agricultural, agricultural activity should have been carried out on it. 6. The CIT(A) has failed to appreciate the fact that the said decision relied upon is given under the old Act i.e. Income Tax definition of capital asset but only the land, the income derived from which was agricultural and accordingly the purpose for which the land actually ....
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....,980 on sale of land as short-term capital gains and added the same to the total income of the assessee. 5. In appeal, learned CIT(A) vide impugned order dated 13/07/2021 dismissed the appeal filed by the assessee and held that in order to come within the category of agricultural land, it must not only be capable of being used for agricultural purposes but should have been actually used as such at some point of time. The learned CIT(A) also held that a temporary non-user for agricultural purposes may not affect the character of the land but the permanent abandonment of user for agricultural purposes will certainly affect the character of the land as agricultural land. The relevant findings of learned CIT(A) are as under: "7.3.16. In the case before me, however, it is evident from the extract of 7/12 document that the land was classified as barren and hence, the onus squarely on the assessee to establish that the land was ordinarily used for the purposes of agricultural or allied to agriculture, and that it was left fallow in a particular year or years owing to adverse seasonal conditions or to some other special reason. I, however, find that assessee has not induced any evidence....
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....ty, assessee claimed exemption of Rs. 47,58,980 (i.e. 50% of Rs. 95,17,960 being profit arising from sale of aforesaid property). It is the claim of the assessee that the aforesaid land, purchased in the year 2013 and thereafter sold in the year 2016, was an agricultural land and therefore the same is not a 'capital asset' for the purpose of section 2(14) and gains arising from transfer is not taxable under section 45 of the Act. In this regard, apart from the aforesaid deeds of conveyance reliance has also been placed upon Maharashtra Land Revenue Record i.e. 7/12 extracts, forming part of the paper book. The learned AR, during the course of hearing, referred to the various entries in the aforesaid record to submit that the land has been mentioned as suitable for cultivation and grass was grown on it. Apart from the deeds of conveyance and 7/12 extracts from land revenue records, no other document has been placed to substantiate that the land was an agricultural land or any agricultural activity was ever conducted on it. 9. At this stage, it would be relevant to observe that after conclusion of hearing of appeal initially on 31/03/2022, a decision of coordinate bench of Tribunal ....
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....ear 2013 was ever used for the purpose of agriculture. We find that the said fact is also not evident from the 7/12 extract from land revenue records. 12. We find that the coordinate bench of the Tribunal in Abhijit Subash Gaikwad (supra), after considering various decisions, inter-alia, including the decisions referred by the learned AR as well as decisions of Hon'ble Jurisdictional High Court, denied similar claim of the taxpayer made merely on the basis of purchase and sale deeds and also land revenue records. The relevant findings of the coordinate bench of the Tribunal, in aforesaid decision, are as under: 20. Following the judicial proposition laid down by the Supreme Court and various High Courts in order to determine the nature of the agricultural land, the first and foremost test was whether the land was actually and ordinarily used for the purpose of agriculture. Where the said land had not been actually cultivated in the recent past and/or there was no intention of using the land for agricultural purposes in near future, was held by the courts to be the most conclusive feature to determine the nature of land in question. Merely because the land was shown as agricultur....
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....ed its onus and merely because the land is recorded as agricultural land in the revenue records, does not establish the case of assessee. 23. Now, coming to the facts of the present case, the assessee before the Assessing Officer had furnished the copy of 7/12 extract,according to which the land was a Jirayat fallow land i.e. land being not capable of cultivation. The 7/12 extract furnished by the assessee has been scanned by the Assessing Officer, copy of which is placed at pages 4 and 5 of the assessment order, which reflects no agricultural activity having been carried on by the assessee. The assessee has not declared any agricultural income in its hands nor any evidence has been produced by the assessee in any of the proceedings or even before us to establish that the land in question was actually being used for cultivation at any time or any basic operation or subsequent operations were carried out in the land. The report of the Inspector was obtained by the Assessing Officer, which clearly mentioned that the land was not fit for cultivation which has not been challenged by the assessee. In the absence of fulfilment of fundamental fact that the land was used for agriculture,....
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....evenue. Though the learned Authorized Representative for the assessee had filed compilation of case laws, but during the course of hearing had only relied on the ratio laid down by the Hon'ble Delhi High Court in Hindustan Industrial Resources Ltd. (supra). The learned authorized Representative for the assessee placed reliance on the decision of Hon'ble High Court of Bombay at Goa in CIT v. Smt. Debbie Alemao [2011] 331 ITR 59/196 Taxman 230/[2010] 8 taxmann.com 243 and Pune Bench of Tribunal in Haresh V. Milani v. Jt. CIT [2008] 114 ITD 428. The Perusal of facts of both the cases reflect that in both the abovesaid decisions, the land was cultivated by the assessee and even the nature of the crop is mentioned. However, in the facts of the present case before us as pointed out by us in the paras hereinabove, the assessee has failed to establish whether the land was used for carrying on any agricultural activity. On the other hand, findings of the authorities below is that the land was in fact barren land, as reported in 7/12 extract furnished prior to the completion of assessment and the land was not at all used for agricultural activities as being claimed by the assessee. I....