TaxTMI 
TaxTMI 
2026 (4) TMI 1555
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.... at Para 5.5, Page 3 recorded that on causing local enquiries with Sri. Bala Mallesh, Sarpanch of Jainapally Gram Panchayat office, it was gathered that the land was said to be rural agricultural land and crops like kandi, Jowar and grass were cultivated in the said land. The nearest municipality to the Jainapally Village is Bhongir Town and the aerial distance from the land to the municipal limits of the Bhongir town is about 8.56Kms. Further population of the Bhongir Municipality is 53,339 as per 2011 census. Therefore, to hold the agricultural land as capital asset under section 2(14) of the Act and stating that the assessee could not prove with documentary evidence that impugned land was used for cultivation and agricultural purpose is unsustainable both in law and on facts. 3. The Ld. CIT(A) failed to note that the land is situated in Jainapally Village which falls in Gram Panchayat, Bibinagar Mandal, Nalgonda District. The nearest municipality is Bhongir town and the aerial distance from Jainapaily Village to the Bhongir Municipality is more than 8kms. Therefore, to hold at Para 10 of the order that the agricultural land is situated in the Bhongir Municipality having....
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....ut the agricultural activity. The learned Authorised Representative of the Assessee has also referred to the return of income for the assessment years 2015-2016 as well as 2016-2017 and submitted that the assessee has declared agricultural income in the preceding years which is not disputed by the Assessing Officer and therefore, this objection of the Assessing Officer is also contrary to the record. In support of his contention, he has relied upon the following decisions: 1. Judgment of Hon'ble Bombay High Court in the case of CIT vs. Smt. Debbie Alemao [2011] 331 ITR 59 (Bom.) 2. Judgment of Hon'ble Madras High Court in the case of Mrs. Sakunthala Vedachalam vs. ACIT [2014] 369 ITR 558 (Mad.) 3. Judgment of Hon'ble Bombay High Court in the case of Shankar Dalal vs. CIT [2017] 247 Taxman 170 (Bom.) 4. Order of ITAT Hyderabad in the case of Tulla Veerender vs. ACIT [2013] 144 ITD 440 [Hyd.Tribu.] 5. Judgment of Hon'ble Gujarat High Court in the case of Dr. Motibhai D. Patel vs. CIT [1981] 127 ITR 671 (Guj.) 6. Order of ITAT, Visakhapatnam Bench in the case of Smt.Chalasani Naga Ratna Kumari vs. ITO, Ward-3(2), Visakhapatnam [2017] 79 Taxmann.com ....
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....roof of such activity, and agricultural income as having been derived is proven, as for proof not been submitted by the assessee. The enquiry of the ITI showed only majorly open dryland. The nearest municipality to the Jainapally village is Bhongir Town and the aerial distrance from the land to the muncipal lijits of the Bhongir Town is about 8.56 kms. Further enquiries reveals that the population of the Bhongir Municipality is 53,339 as per the 2011 census. 5.2. Further as per the statement of encumbrance downloaded from the internet for this property from Govt. of Telangana Registration & Stamps Department website the assessee has by document no 8541/2016 dated. 01.06.2016 sold the piece of land as per Sub-Registrar Yadagingutta data. The same encumbrance form shown transfer of the sold property, to other persons on 26.10.2016 (9122/2016), 26/10/2016 (9123/2016), 26. 102016 (9124/2016) hardly 4 months from date of sale and continued to be sold in that fashion in 2017,2018,2019. This appears to be in the line adventure in the nature of trade which shows that the Property was not meant to be for agriculture use as seen from the photographes taken in the site & the transfer....
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....ated beyond the prescribed distance from the municipal limits so as to fall in the exclusion clause of 'capital asset'. The actual use of land for agricultural purpose is not a condition under the said Clause once the land as per the revenue record is an agricultural land and the same is situated beyond 8 KM from the municipal limits. Further, the reasons given by the Assessing Officer are also contrary to its own factual finding recorded in Para no.5.5 that as per local enquiries from the Sarpanch of the Gram Panchayat the above land was said to be rural agricultural land, and crops were also cultivated in the said land. It is manifested from record that for the assessment years 2015-2016 and 2016-2017, the assessee in the return of income has declared agricultural income which is also not in dispute as the assessee has filed the copy of the return of income and computation of total income placed at Page nos.50 to 53 and 46 and 47 of the paper book, respectively. Therefore, once the assessee has declared agricultural income from the land in question which is not disputed by the Department and particularly by the Assessing Officer in the preceding assessment years then, the objecti....
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.... land used for agriculture shall be used for any non-agricultural purpose and no land assessed for one non-agricultural purpose shall be used for any other non-agricultural purpose except with the permission of the Collector. Section 32 of the Goa, Daman and Diu Land Revenue Code prescribes the procedure for conversion of use of land from one purpose to another including conversion from agricultural purpose to non-agricultural purpose. The permission for non-agricultural use was obtained for the first time by the Varca. Holiday Beach Resort Private Limited the purchaser after it purchased the land. Thus, the finding recorded by the two authorities below that the land was used for the purpose of agriculture is based on appreciation of evidence and by application of correct principles of law. The Tribunal has relied upon two unreported decisions of this Court in CIT v. Minguel Chandra Pais/Smt. Maria Leila Tovar Furtado [2006] 282 ITR 6181 which involved identical issue. In those appeals, this Court has upheld the order of the Tribunal holding that the land was agricultural land and its sale did not invite the payment of capital gain. It is not disputed before us that the facts of th....
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.... factors are: (1) Whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue? (2) Whether the land was actually or ordinarily used for agricultural purposes at or about the relevant time? (3) Whether such user of the land was for a long period or whether it was of a temporary character or by way of a stop-gap arrangement? (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? (5) Whether, the permission under 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land? If so, when and, by whom (the vendor or the vendee)? Whether such permission was in respect of the whole or a portion of the land? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? (6) 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 cesser....
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....f the above factors can be present in a case to qualify for the benefit of classification as agricultural lands. In this case, the assessee's have qualified under clause 11(1) since as per the adangal records, these lands were classified as agricultural lands and the assessee's have also paid revenue kist, namely, revenue payment. Therefore, the Tribunal has misconstrued the judgment of the Gujarat High Court (supra) that all conditions laid down in paragraph 11 should be satisfied, which is not a correct interpretation. 15. To get exemption, the assessee has to satisfy the conditions laid down in Section 2(14) of the Income Tax Act, which reads as follows: 2(14) "capital asset" means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession: (ii) personal effects, that is to say, movable property (including wearing apparel and furniture, but excluding jewellery) held for personal use by the assessee or any member of his family dependent on him: Explanation. For the....