Thelma J. D'souza, V. Income Tax Officer (Ward ) 1(1), Panaji

CO 21/PAN/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8792 (ITAT-PANAJI)
• Duration Of Justice: 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BANJUL BARTHAKUR
• Assessee Lawyers: VITHAL Y PAWAR
• Keywords: Capital asset; Source of fund; Question of law; Reason to believe
• Section: 2(14); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 121 /PNJ/201 3 : (ASST. YEAR : 2008 - 09) INCOME TAX OFFICER, W - 1(1), PANAJI, GOA (APPELLANT) VS. SHRI JOAQUIM DSOUZA F - 1, PANORMA APARTMENTS, ALTINHO, PANAJI, GOA (RESPONDENT) PAN ABWPD4941N ITA NO. 122 /PNJ/201 3 : (ASST. YEAR : 200 8 - 0 9 ) INCOME TAX OFFICER, W - 1(1), PANAJI, GOA (APPELLANT) VS. SMT. THELMA DSOUZA F - 1, PANORMA APARTMENTS, ALTINHO, PANAJI, GOA (RESPONDENT) PAN ABWPD4940 N CO NO. 20/PNJ/2013 (IN ITA NO. 121/PNJ/2013) : (ASST. YEAR : 2008 - 09) SHRI JOAQUIM DSOUZA F - 1, PANORAMA APARTMENTS, ALTINHO, PANAJI, GOA (CROSS OBJECTOR) PAN ABWPD4941N VS. INCOME TAX OFFICER, W - 1(1), PANAJI, GOA (RESPONDENT) CO NO. 21/PNJ/2013 (IN ITA NO. 12 2 /PNJ/2013) : (ASST. YEAR : 2008 - 09) SMT. THELMA DSOUZA F - 1, PANORAMA APARTMENTS, ALTINHO, PANAJI, GOA (CROSS OBJECTOR) PAN ABWPD4940N VS. INCOME TAX OFFICER, W - 1(1), PANAJI, GOA (RESPONDENT) REVENUE BY : BANJUL BARTHAKUR , DR ASSESSEE BY : VITHAL Y. PAWAR DATE OF HEARING : 25/07/2013 DATE OF PRONOUNCEMENT : 31 / 07 /2013 2 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) O R D E R PER P.K. BANSAL : 1. BOTH THESE APPEALS AS WELL AS CROSS OBJECTIONS HAVE BEEN FILED AGAINST THE ORDER OF CIT(A) DT. 31.3.2013. IN BOTH THE YEARS, THE REVENUE HAS TAKEN COMMON GROUNDS OF APPEAL WHICH READS AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES, THE L D. CIT(A) GROSSLY ERRED BY NOT CONSIDERING THE FACT THAT IT IS NOT MENTIONED IN THE SALE DEED THAT PROPERTY SOLD IS AN AGRICULT URAL LAND. 2. ON THE FACTS AND CIRCUMSTANCES, THE L D. CIT(A) ERRED BY NOT APPRECIATING THE FACT THAT AS SEEN FROM THE EXTRACT OF FORM NO.1 & XIV FURNISHED BY THE SUB - REGISTRAR THAT THE DETAILS OF CROPPED AREA IS MENTIONED AS NIL . 3. ON THE FACTS AND CIRCUMSTANCES, THE L D. CIT(A) ERRED BY NOT APPRECIATING THE FACT THAT ASSESSEE HAS NOT SHOWN ANY AGRICULTURAL RECEIPTS IN THE RETURNS OF INCOME FILED FOR THE PREVIOUS THREE YEARS PRECEEDING TO THE A.Y. 2007 - 08 EVIDENCING THAT THE ASSESSEE IS IN RECEIPT OF AGRICULTURAL INCOME. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE SUPPORTIVE TO THE ORDER OF CIT(A). THE ONLY ISSUE INVOLVED IN ALL THE GROUNDS TAKEN BY THE REVENUE IS WHETHER THE LAND SOLD BY THE ASSESSEE IS CAPITAL ASSET AS PER PROV ISIONS OF SEC. 2(14)(III) OF THE INCOME TAX ACT OR NOT BECAUSE IN CASE IT IS NOT A CAPITAL ASSET, IT CANNOT BE CHARGED TO CAPITAL GAINS. IF IT IS A CAPITAL ASSET, IT WILL BE CHARGEABLE TO CAPITAL GAINS. SEC. 2(14)(III) READS AS UNDER : 2( 14 ) 'CAPITAL A SSET' 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 ; ( II ) PERSONAL EFFECTS ; ( III ) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SITUATE ( A ) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND [ ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR ] ; OR 3 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) ( B ) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ), AS THE CENTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOT IFICATION IN THE OFFICIAL GAZETTE;] THE FOLLOWING ITEM ( B ) SHALL BE SUBSTITUTED FOR THE EXISTING ITEM ( B ) OF SUB - CLAUSE ( III ) OF CLAUSE ( 14 ) OF SECTION 2 BY THE FINANCE ACT, 2013, W.E.F. 1 - 4 - 2014: ( B ) IN ANY AREA WITHIN THE DISTANCE, MEASURED AERIALLY, ( I ) NOT BEING MORE THAN TWO KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN TEN THOUSAND BUT NOT EXCEEDING ONE LAKH; OR ( II ) NOT BEING MORE THAN SIX KILOMETRES, FR OM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN ONE LAKH BUT NOT EXCEEDING TEN LAKH; OR ( III ) NOT BEING MORE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CA NTONMENT BOARD REFERRED TO IN ITEM ( A ) AND WHICH HAS A POPULATION OF MORE THAN TEN LAKH. EXPLANATION. FOR THE PURPOSES OF THIS SUB - CLAUSE, 'POPULATION' MEANS THE POPULATION ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBL ISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN DECLARING INCOME FROM OTHER SOURCES AND SHOWING THAT HE HAD RECEIVED 20% SHARE IN THE SALE OF AGRICULTURAL LAND AT LOLEIM, CANACONA AT RS.1 ,62,58,500/ - . ALONG WITH THE RETURN, THE ASSESSEE FILED COPY OF FORM I AND XIV WHERE THE DETAILS OF AGRICULTURAL LAND, AREA, SURVEY NUMBER AND CERTIFICATE FROM REVENUE AUTHORITIES WAS ENCLOSED CLAIMING THE LAND TO BE AGRICULTURAL LAND. THE RETURN WAS P ROCESSED U/S 143(1). SUBSEQUENTLY, THE AO RE - OPENED THE ASSESSMENT U/S 147 BY ISSUING NOTICE U/S 148 ON 25.1.2010 AFTER RECORDING REASONS TO THE EXTENT THAT FROM THE COPY OF THE SALE DEED DT. 11.1.2008 FILED ALONGWITH RETURN OF INCOME IT IS SEEN THAT THE ASSESSEE AND HIS WIFE ALONGWITH 5 OTHER CO - OWNERS SOLD THE LANDED PROP KNOWN AS VATTORIANT OR VADTURY OR VATOREM OR VATOREIN BEARING SURVEY NOS. 346/1, 347/1, 348/1 AND 352/2 ADMEASURING 90,325 SQ. MTRS. SITUATED WITHIN THE LIMITS OF VILLAGE PANCHAYAT OF LOLEIM IN CANACONA TALUKA, SOUTH GOA TO M/S. RDMK REAL ESTATE PVT. LTD., MUMBAI FOR 4 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) A CONSIDERATION OF RS.8,12,92,500/ - . BEING CO - OWNERS, THE ASSESSEE AND HIS SPOUSE HAVE RECEIVED SHARE AT RS.1,62,58,500/ - . HOWEVER, ASSESSEE HAS NOT OFFERED FOR TAXATION ANY CAPITAL GAINS ON THE SALE CONSIDERATION RECEIVED BUT CLAIMED IT AS EXEMPT ON THE GROUND THAT THE LAND SOLD IS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSET U/S 2(14) OF THE INCOME TAX ACT. IT IS NOTED FROM THE SALE DEED THAT THE SAID PROPE RTY WAS SOLD TO M/S. RDMK REAL ESTATE PVT. LTD. HAVING REGISTERED OFFICE AT NO. 39, ZAVERI BUILDING, 3 RD FLOOR, 12 TH KHETWADI LANE, MUMBAI 400 004 . AS THE LAND WAS SOLD TO A COMPANY WHICH IS AN INFRASTRUCTURE CONCERN AND THE ASSESSEE HAD DECLARED IT AS SA LE OF AGRICULTURAL LAND. THE AO HAD REASON TO BELIEVE THAT THE SAID PROPERTY IS NOT AN AGRICULTURAL LAND FALLING WITHIN THE MEANING OF SEC. 2(14)(III) OF THE INCOME TAX ACT AND TO BE TREATED AS C APITAL ASSET LIABLE FOR C APITAL G AINS CHARGEABLE TO TAX UNDE R THE HEAD CAPITAL GAINS. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE VIDE LETTER DT. 4.2.2010 ENCLOSED XEROX COPY OF THE ACKNOWLEDGEMENT OF THE RETURN OF INCOME FILED FOR THE A.Y 2008 - 09 ON 11.8.2008 AND STATED THAT SAME MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 148. AFTER GIVING OPPORTUNITY TO THE ASSESSEE AND AFTER EXAMINING THE DOCUMENTS AND EVIDENCES PRODUCED BY THE ASSESSEE TO PROVE THAT THE LAND SOLD WAS AN AGRICULTURAL LAND, THE AO DID NOT AGREE WITH THE ASSESSEE. THE AO ALSO DEPUTED AN INSPECTOR TO VISIT THE LAND FOR VERIFYING WHETHER THE LAND IS BEING USED FOR AGRICULTURAL PURPOSES. THE INSPECTOR SUBMITTED HER REPORT DT. 16.12.2010 AS UNDER : WE MET SRI SANDEEP DESAI, SECRETARY OF THE LOLIEM PANCHAYAT AT AROUND 1.00 P.M. ON 15/12/2010 AND REQUESTED HIM TO HELP US IN IDENTIFYING THE PROPERTY KNOWN AS VATTORIANT OR VADTURY OR VATOREM OR VATOREM MEASURING 90,325 SQ. MTRS. WITHIN THE LIMITS OF VILLAGE PANCHAYAT OF LOLIEM IN CANACONA TALUKA OF SOUTH GOA DISTRICT WHICH WAS SOLD, BEARING SURVEY NOS. 346/1(346)/347/1,348/1 & 352/2, BY SHRI JOAQUIM DSOUZA TO RDMK REAL ESTATE PVT. LTD., MUMBAI. ASSISTED BY A TALATHI, STAFF, FROM LOLIEM PANCHAYAT I VISITED SURVEY NO.352, WHICH WAS JUNGLE BASED LAND. IT WA S UNLIKE AN AGRICULTURAL LAND. THERE WERE SOME LOCAL FAMILIES THAT ASSISTED ME TO IDENTIFY THE AB, THE LOCALITIES 5 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) ABOUT WILD ANIMALS, LIKE LION, EXISTED IN THE ABOVE SURVEY PROPERTIES. HENCE, I WAS NOT WILLING TO VENTURE DEEPER. IT HAS BEEN CONFIRMED WITH THE HELP OF THE LOCAL FAMILIES AND PANCHOYAT STAFF THAT NO AGRICULTURAL ACTIVITIES ARE DONE IN SURVEY NOS.346/1(346), 347/1, 348/1 AND 352/2. THE ABOVE PROPERTY IS WITHIN THE LIMITS OF LOLIEM VILLAGE PANCHAYAT AND AROUND 15 KMS FROM THE CANCONA MUNCIPAL L IMITS. AFTER GOING THROUGH THE REPORT AND EXPLANATION FILED BY THE ASSESSEE, THE AO HELD THAT THE LAND SOLD WAS NOT AN AGRICULTURAL LAND ON THE BASIS OF THE FOLLOWING FACTS : IN THE SALE DEED IT IS NOT MENTIONED THAT THE PROPERTY SOLD IS AN AGRICULTURA L LAND. IT IS SEEN FROM THE EXTRACT OF THE FORM NO. & XIV FURNISHED BY THE SUB - REGISTRAR THAT THE DETAILS OF CROPPED AREA IS MENTIONED AS NIL AND THERE IS NO MENTION OF AGRICULTURAL ACTIVITY CARRIED ON. ASSESSEE HAS NOT BROUGHT ANY MATERIAL EVIDENCE ON RECORD TO SHOW THAT THE ASSESSEE IS CARRYING ON AGRICULTURAL OPERATIONS ON THE DATE OF SALE SUCH AS YIELD, SEEDS/SAPLINGS PROCURED, EVIDENCE TO SHOW NATURE AND TYPE OF AGRICULTURE PRODUCE, SALE OF SUCH AGRICULTURAL PRODUCE, SOURCES FOR WATER, CONSUMPTION OF ELECTRICITY AND POWER BILLS THEREON, EXPENSES INCURRED TOWARDS LABOUR DEPLOYED ETC. ASSESSEE HAS NOT SHOWN ANY AGRICULTURAL RECEIPTS IN THE RETURNS OF INCOME FILED FOR THE PREVIOUS 3 YEARS PRECEEDING TO THE A.Y.2 007 - 08 EVIDENCING THAT THE ASSESSEE IS IN RECEIPT OF AGRICULTURE INCOME FOR THE SAID YEARS. ASSESSEE HAS SOLD THE PROPERTY TO A NON - AGRICULTURIST FOR NON - AGRICULTURAL PURPOSE. THE PROPERTY HAS BEEN PURCHASED BY AN INFRASTRUCTURE COMPANY WHOSE MAIN OBJECT I S TO DEVELOP INFRASTRUCTURE AND NOT PERFORM AGRICULTURAL ACTIVITIES. THE REPORT OF THE TEAM OF INSPECTORS DEPUTED BY THIS OFFICE TO INSPECT THE SAID PROPERTY ESTABLISHES THE FACT BEYOND DOUBT THAT NO AGRICULTURAL OPERATIONS WERE/ARE BEING CARRIED ON AND THE STANDING TREES HAVE GROWN SPONTANEOUSLY OVER THE PERIOD OF YEARS. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE AGRICULTURAL LAND IS LOCATED AT VATUREM, VILLAGE LOILEM AND HAS 4 SEPARATE PARTS AND THE PROPERTY WAS PURCHASED BY HIS FATHER 6 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) WITH EXISTING PLANTATION THEREOF. IN THE YEAR 1974 - 75 LAND SURVEY DEPT. CONDUCTED SURVEY AND FORM I & XIV WAS ISSUED AS UNDER : PARTICULARS CERTIFIED BY AGRICULTURAL VALUER AS PER VISIT AND VERIFICATION SURVEY NO . 346(1) AREA 4.33 HECTORS DRY CROP WITH 14 COCONUT TREES, 2 MANGO T REES, 11 CASHEW TREES, 12 TEAK TREES SURVEY NO. 347(1) AREA 1.01 HECTORS DRY CROP AREA 0.59 HECTO R S G A RDEN WITH 108 COCONUT TREES, 2 MANGO TREES, 3 COCCU M TREES, 28 CASHEW T REES, 2 JAMBUL TREES SURVEY NO. 348(1) AREA 1.4825 HECTORS GARDEN WITH 186, COCONUT TREES, 145 CASHEW T REES, 36 MANGO TREES, 14 JACKFRUIT TREES, 8 COCCUM TREES, 6 JAMBUL TREES, 3 ARCANUTS SURVEY NO. 352(1) AREA 1.62 HECTORS GARDEN CASHEW TREES 55, MANGO T REES 8, COCCURN T REES 3, JAMBU L TREES 23 IN ANOTHER FORM (III) LAND INDEX OF THE REVENUE DEPT. SIMILAR REFERENCES ABOUT THE PLANTATION ARE MADE. THE FAMILY TOOK CARE OF THE PLANTATION UNTIL THE LAND IS SOLD IN THE YEAR 2008. THIS WAS A MAJOR SOURCES OF INCOME OF ASSESSEES PARENTS FOR 60 YEARS. THE AREA WAS DEVELOPED BY THE ASSESSEE INTO COCONUT/CAJU GARDEN, MAINTAINED NALLAS FOR WATER IRRIGATION. IT WAS STRESSED THAT AGRICULTURAL OPERATIONS WERE CARRIED IN ALL THE SURVEY RECORDS AND STONE COMPOUND WA S CONSTRUCTED AROUND AGRICULTURAL HOLDING FOR PROTECTING THE SAME FROM OUTSIDE ENCROACHMENTS AND CATTLE ETC. THERE WERE 2 NULLAS IN THE PROPERTY USED FOR IRRIGATION OF PLANTATION. THE DETAILS OF THE PLANTATIONS AS PER ACTUAL BY APPROVED VALUER WAS GIVEN AS UNDER : COCONUT 308 TREES CASHEW 230 TREES MANGO 48 TREES COCONUT 18 TREES JAMBUL 31 TREES JACKFRUIT 14 TREES AND BEETLENUT & JAMB TREES SPREAD OVER INTO THE PLANTATION. 7 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) THUS, IT WAS STATED THAT THE PROPERTY WAS DEVELOPED PURELY FOR AGRICULTURAL PURPOSES AND NET AGRICULTURAL INCOME AFTER EXPENDITURE WAS DISTRIBUTED BETWEEN THE CO - OWNERS OF WHICH THE ASSESSEE WAS ONE OF THE OWNERS. DUE TO THE LOSSES FROM NATURAL HAZARDS AN D MAINTENANCE AND PERIODIC MANURING OF PLANTATION THERE WAS EXCESS OF EXPENDITURE OVER INCOME IN THE PREVIOUS TWO YEARS AND THEREFORE NO INCOME WAS RETURNED DURING THOSE YEARS. LAND REVENUE TAX WAS ALSO COLLECTED BY THE GOVERNMENT SINCE TIME OF PORTUGUESE REGIME. DETAILS OF THE LAND REVENUE W ERE ALSO ENCLOSED. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS : A) CIT VS. MIGUEL CHANDAR PAIS, BOMBAY H.C PANAJI BENCH 282 ITR 618 B) CIT VS. DEBY ALIMAO (2011) 38(1) ITCL 68 BOM.HC C) CIT VS. MADHABHAI H. PATEL 208 ITR 638 GUJ. D) CWT VS. OFFICER - IN - CHARGE, COURT OF WARDS, PAIGAH 105 ITR 133 (SC) CIT(A) ULTIMATELY DELETED THE ADDITION MADE ON ACCOUNT OF CAPITAL GAINS BY OBSERVING AS UNDER : 9. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT AND THE VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE AO AND THE APPELLANT. IN MY OPINION, THIS MORE A QUESTION OF FACT THAN QUESTION OF LAW. PERUSAL OF THE DOCUMENTS SUBMITTED BY THE APPELLANT, WHICH HAVE ALSO NOT BEEN REFUTED BY THE AO SHOWS THAT LAND IN QUESTION WAS INDEED AN AGRICULTURAL LAND AND HAS BEEN ASSESSEES AS AGRICULTURAL LAND IN LAND REVENUE RECORDS OF GOA STATE. IN VIEW OF THE FACT, THE AO IS DIRECTED TO DELETE T HE ADDITION MADE ON ACCOUNT OF CAPITAL GAINS. 2.1 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. BEFORE US, THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE THE AO BUT DID NOT DENY THE FACT THAT IN THE SALE DEED THE LAND HAS NOT BEEN MENTIONED AS AN AGRICULTURAL LAND AND THE ASSESSEE HAS NOT SHOWN ANY AGRICULTURAL INCOME IN THE PRECEDING THREE A.YS I.E. A.Y 2005 - 06, 2006 - 07 AND 2007 - 08. IT IS ALSO A FACT 8 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) THAT A MAJOR CHUNK OF LAND IS IN SURVEY NO. 346/1 CONSISTING OF AN AREA OF 4.33 HEC. AND THIS AREA CONSISTS OF ONLY 14 COCONUT TREES, TWO MANGO TREES, 11 CASHEW TREES AND 12 TEAK TREES AS PER THE REVENUE RECORD. THIS FACT HAS NOT BEEN DENIED BY THE LD. AR BEFORE US. CIT( A) WITHOUT GIVING A FINDING OR CONTRAVENING THE FINDING GIVEN BY THE AO JUST DELETED THE ADDITION ON THE BASIS OF REVENUE RECORDS HOLDING THAT THE LAND IS AN AGRICULTURAL LAND. THE ORDER, IN OUR OPINION, DOES NOT DEAL WITH THE VARIOUS SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE FINDING GIVEN BY THE AO. THE REVENUE RECORDS, IN OUR OPINION, MAY BE A PIECE OF EVIDENCE TO DETERMINE WHETHER THE LAND IS AN AGRICULTURAL LAND OR NOT BUT IT CANNOT BE A CONCLUSIVE EVIDENCE. THE HON'BLE JURISDICTION HIGH COURT IN THE CASE OF GOPAL C. SHARMA VS. CIT, 209 ITR 946 HAS HELD THAT THE FACT THAT THE LAND IS SOLD OR TRANSFERRED TO A NON - AGRICULTURIST FOR NON - AGRICULTURAL PURPOSE OR THAT IT IS LIKELY TO BE USED FOR NON - AGRICULTURAL PURPOSES SOON AFTER IT IS TRANSFERRED I S ALSO RELEVANT FACT GERMANE TO THE DETERMINATION OF THE ISSUE. THE HON'BLE SUPREME COURT ALSO IN THE CASE OF SARIFABIBI MOHMED IBRAHIM VS. CIT , 204 ITR 631 (SC) ON THE SIMILAR ISSUE TOOK THE VIEW THAT WHETHER THE LAND IS AGRICULTURAL LAND OR NOT IS QUES TION OF FACT. SEVERAL TESTS HAVE BEEN EVOLVED IN THE DECISION OF THE HON'BLE SUPREME COURT AND THE HIGH COURT, BUT ALL OF THEM ARE MORE IN THE NATURE OF GUIDELINES. THE QUESTION HAS TO BE ANSWERED IN EACH CASE HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THAT CASE. THERE MAY BE FACTORS BOTH FOR AND AGAINST A PARTICULAR POINT OF VIEW. THE COURT HAS TO ANSWER THE QUESTION ON A CONSIDERATION OF ALL OF THEM BY A PROCESS OF EVALUATION. THE INFERENCE HAS TO BE DRAWN ON CUMULATIVE CONSIDERATION OF ALL THE RELEVANT FACTS. SIMILARLY, THE HON'BLE KERALA HIGH COURT IN THE CASE OF TRAVANCORE TEA ESTATE CO. LTD. VS. CIT, 93 ITR 314 (KER.) TOOK THE VIEW THAT TREES STANDING ON AGRICULTURAL LANDS ARE NOT AGRICULTURAL LAND IN INDIA WITHIN THE MEANING OF SECTION 2(14)(III). THEY CONSTITUTE A PROPERTY OF ANY KIND MENTIONED IN SECTION 2(14) AND ARE CAPITAL ASSETS . ALL THESE DECISIONS, IN OUR 9 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) OPINION, ARE RELEVANT TO DECIDING THE ISSUE ON THE BASIS OF DOCUMENTS AND EVIDENCES FILED BY THE ASSESSEE. IN THE CASE OF GEMINI PICTURES CIRCUIT (P) LTD. V. CIT, 130 ITR 686, THE HON'BLE MADRAS HIGH COURT HAS HELD THAT ONCE THE ASSESSEE PROVES THAT THE LAND IS AGRICULTURAL LAND, THE BURDEN OF PROVING THAT IT IS NOT AGRICULTURAL LAND IS ON THE REVENUE . THESE DECISIONS, IN OUR OPINION, WILL HAVE A BEARING ON THE ISSUE WHETHER THE LAND IS AN AGRICULTURAL LAND OR NOT. THESE DECISIONS HAVE NOT BEEN CONSIDERED BY CIT(A). THE ORDER HAS BEEN PASSED IN A CRYPTIC AND SUMMARY MANNER . WE, THEREFORE, IN THE INTEREST OF JUSTICE A ND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER OF CIT(A) IN THE CASE OF THE ASSESSEE AS WELL AS HIS WIFE AND RESTORE THE ISSUE TO THE FILE OF CIT(A) WITH THE DIRECTION THAT CIT(A) SHALL DISCUSS EACH AND EVERY EVIDENCE FILED BY THE ASSESSEE AS WELL A S THE CASE LAWS AS HAS BEEN CITED BY US IN THIS ORDER AND PASS AN APPROPRIATE ORDER. 3. IN THE RESULT , BOTH THE APPEALS AS WELL AS THE CROSS OBJECTIONS ARE ALLOWED STATISTICALLY. 4. ORDER PRONOUNCED IN THE OPEN COURT ON 31 / 07 /2013. SD/ - (D.T.GARASIA) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 31 / 07 / 2013 *SSL* 10 ITA NOS. 121&122/PNJ/2013 & CO NOS. 20&21/PNJ/2013 (ASST. YEAR : 2008 - 09) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA