Mr.John A.Poomkudy, Cochin V. ACIT, Cochin

CO 3/COCH/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9692 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Capital asset; Business expenditure
• Section: 54B; 54F; 2(14); 131

Judgement Text

1 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 224/COCH.2011 (ASSESSMENT YEAR 2007-08) SHRI M.J. THOMAS VS DY.CIT, CIR.2(2) MUKKADAYIL HOUSE ERNAKULAM ST. VINCENT ROAD, ERNAKULAM KOCHI 18 PAN : ABOPT1168R (APPELLANT) (RESPONDENT) I.T.A NO. 311/COCH.2011 (ASSESSMENT YEAR 2007-08) THE DY.CIT, CIR.2(2) VS SHRI M.J. THOMAS ERNAKULAM KOCHIN-18 (APPELLANT) (RESPONDENT) I.T.A NO. 336/COCH.2013 (ASSESSMENT YEAR 2007-08) GEORGE THOMAS VS DY.CIT, CIR.2(1) MALABAR CANNING, 33/1885 B7 KOCHI FRUITOMANS BLDG, COCHIN BYPASS VENNALA P.O., KOCHI-682 028 PAN : AAQPT4452M (APPELLANT) (RESPONDENT) 2 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 I.T.A NO. 559/COCH.2011 (ASSESSMENT YEAR 2008-09) A.C.I.T., CIR.1(2) VS JOHN AUGUSTY POOMKUDY KOCHI LINK HEIGHTS, PANAMPILLY NAGAR, KOCHI-36 PAN : AFRPP0746A (APPELLANT) (RESPONDENT) C.O. NO.03/COCH/2012 (ARISING OUT OF I.T.A NO. 559/COCH.2011) (ASSESSMENT YEAR 2008-09) DY.CIT, CIR.2(1) VS SMT. ANITHA ZACHARIAS RANGE-2, C.R. BLDG POOMKUDY VILLA ERNAKULAM KUNNUMPURAM P.O. KAKKANAD, COCHIN 30 PAN : (CROSS OBJECTOR) (RESPONDENT) I.T.A NO. 556/COCH.2011 (ASSESSMENT YEAR 2007-08) DY.CIT, CIR.2(1) VS SMT. ANITHA ZACHARIAS RANGE-2, C.R. BLDG POOMKUDY VILLA ERNAKULAM KUNNUMPURAM P.O. KAKKANAD, COCHIN-30 PAN : AABFG9427A (APPELLANT) (RESPONDENT) C.O. NO.05/COCH/2012 (ARISING OUT OF I.T.A NO. 556/COCH.2011) 3 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (ASSESSMENT YEAR 2007-08) SMT. ANITHA ZACHARIAS VS DY.CIT, CIR.2(1) KAKKANAD, COCHIN-30 RANGE-2, ERNAKULAM (CROSS OBJECTOR) (RESPONDENT) I.T.A NO. 561/COCH.2011 (ASSESSMENT YEAR 2008-09) DY.CIT, CIR.4(1) VS SMT. MARY JOHN POOMKUDY ERNAKULAM 12-A LINK HEIGHTS KOCHI 36 PAN : AFRPP0745D (APPELLANT) (RESPONDENT) C.O. NO.04/COCH/2012 (ARISING OUT OF I.T.A NO. 561/COCH.2011) (ASSESSMENT YEAR 2008-09) SMT. MARY JOHN POOMKUDY VS DY.CIT, CIR 4(1) KOCHI - 36 KOCHI (CROSS OBJECTOR) (RESPONDENT) ASSESSEE BY : SHRI P.K. SASIDHARAN SHRI M.A. JOHN SHRI R LOKANATHAN REVENUE BY : SHRI K.K. JOHN 4 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 DATE OF HEARING : 06-03-2014 DATE OF PRONOUNCEMENT : 06-06-2014 O R D E R PER N.R.S. GANESAN (JM) ALL THE APPEALS OF FIVE DIFFERENT ASSESSEES ARE DI RECTED AGAINST THE RESPECTIVE ORDERS OF CIT(A). SINCE COMMON ISSUE AR ISES FOR CONSIDERATION IN ALL THE APPEALS, WE HAVE HEARD ALL THE APPEALS T OGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER. 2. IN ALL THESE APPEALS, THE COMMON ISSUE ARISES FO R CONSIDERATION IS WITH REGARD TO COMPUTATION OF CAPITAL GAIN ON SALE OF THE LAND. ALL THE ASSESSEES CLAIM THAT THE LAND WHICH WAS SOLD / ACQ UIRED BY GOVERNMENT IS AGRICULTURAL LAND WITHIN THE MEANING OF SECTION 2(1 4) OF THE INCOME-TAX ACT, THEREFORE, EXEMPT FROM CAPITAL GAIN TAX. HOWEVER, THE REVENUE CONTENDS THAT THE LAND IN QUESTION WAS NOT AGRICULTURAL LAND EVEN THOUGH IT WAS CLASSIFIED SO BY THE STATE GOVERNMENT, THEREFORE, T HE ASSESSEE IS LIABLE TO PAY CAPITAL GAIN TAX. 5 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 3. SHRI K.K. JOHN, THE LD.DR SUBMITTED THAT THE ASS ESSEE, SHRI M.J. THOMAS IN ITA NO.311/COCH/2011 OWNED AND POSSESSED 4.448 ACRES OF LAND IN SURVEY NO.647/1, 646/6, 646/5 AND 646/4 AT KAKKANAD VILLAGE. THE SAID LAND WAS COMPULSORILY ACQUIRED BY GOVERNMENT O F KERALA UNDER LAND ACQUISITION ACT DURING THE YEAR UNDER CONSIDERATION . THE ASSESSEE HAS RECEIVED COMPENSATION FROM THE GOVERNMENT. THE LD. DR FURTHER POINTED OUT THAT GOVERNMENT OF KERALA ACQUIRED THE LAND FOR KINFRA PROJECT. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESS EE CLAIMED THE PROPERTY AS AGRICULTURAL LAND. HOWEVER, THE ASSESSING OFFIC ER REJECTED THE CLAIM OF THE ASSESSEE AND FOUND THAT THE SUBJECT LAND IS NOT AN AGRICULTURAL LAND. ACCORDING TO THE LD.DR, THOUGH THE ASSESSEE RETURNE D AGRICULTURAL INCOME IN THE EARLIER ASSESSMENT YEAR, THE DEPARTMENT HAD NO OCCASION TO SCRUTINIZE THE RETURN OF INCOME. ACCORDING TO THE LD.DR, MERE ACCEPTANCE OF THE RETURN OF INCOME DOES NOT GIVE ANY SANCTITY TO THE INCOME DECLARED IN THE RETURN. ACCORDING TO THE LD.DR, WHEN THE AS SESSEE CLAIMS THAT THE SUBJECT LAND IS AGRICULTURAL LAND, THE BURDEN OF PR OOF HEAVILY LIES ON HIS SHOULDER TO PROVE THAT THE SUBJECT LAND IS IN FACT AGRICULTURAL LAND. THE LD.DR PLACED RELIANCE ON THE JUDGMENT OF THE APEX C OURT IN CIT VS RAMAKRISHNA DEO (1959) 35 ITR 312 (SC). REFERRING TO THE ORDER OF 6 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 CIT(A), THE LD.DR SUBMITTED THAT MERELY BECAUSE THE DISTRICT COLLECTOR DID NOT DEDUCT TAX ON THE COMPENSATION PAID TO THE ASSE SSEE IT DOES NOT MEAN THAT LAND IN QUESTION IS AGRICULTURAL LAND. ACCORD ING TO THE LD.DR, MOST OF THE LANDS WERE ACQUIRED BY GOVERNMENT THROUGH OUTRI GHT PURCHASE FROM LAND OWNERS ON THE BASIS OF THE VALUE FIXED BY THE DISTRICT COLLECTOR. 4. THE LD.DR FURTHER SUBMITTED THAT THOUGH THE ASSE SSEE CLAIMS THAT THE LAND WAS CULTIVATED WITH PADDY ORIGINALLY AND SUBSE QUENTLY IT WAS CULTIVATED WITH BANANA AND GINGER, NO MATERIAL WAS FURNISHED T O THE ASSESSING OFFICER. REFERRING TO THE JUDGMENT OF THE APEX COURT IN CIT VS R VENKATASWAMY NAIDU (1956) 29 ITR 529 (SC), THE LD.DR SUBMITTED T HAT THE ASSESSEE HAS TO PUT BEFORE THE ASSESSING OFFICER RELEVANT MATERI ALS SO AS TO ENABLE THE ASSESSING OFFICER TO COME TO A CONCLUSION THAT THE LAND IS AN AGRICULTURAL LAND. SINCE THE ASSESSEE FAILED TO PRODUCE ANY EVI DENCE TO SHOW THAT THE LAND WAS CULTIVATED AT ANY POINT OF TIME, ACCORDING TO THE LD.DR, THE CIT(A) IS NOT CORRECT IN TREATING THE SUBJECT LAND AS AGRI CULTURAL LAND. THE LD.DR FURTHER SUBMITTED THAT THE CIT(A) WHILE ALLOWING TH E APPEALS OF THE ASSESSEES HAS NOT SPECIFIED THE NATURE OF EVIDENCE PRODUCED BY THE ASSESSEE. REFERRING TO THE JUDGMENT OF THE KERALA HIGH COURT IN KALPETTA 7 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ESTATES LTD VS CIT (1990) 185 ITR 318 (KER), THE LD .DR SUBMITTED THAT FOR THE PURPOSE OF CLAIMING EXEMPTION IT IS NOT ENOUGH TO SHOW THAT THE LAND WAS ONCE AGRICULTURAL LAND BUT THE ASSESSEE SHOULD FURTHER PROVE THAT IT WAS AGRICULTURAL LAND AT THE TIME OF TRANSFER. THE SPECIAL LEAVE PETITION FILED AGAINST THE KERALA HIGH COURT JUDGMENT IN KAL PETTA ESTATES LTD (SUPRA) WAS DISMISSED BY THE SUPREME COURT. THE LD .DR HAS ALSO PLACED RELIANCE ON THE JUDGMENT OF THE MADRAS HIGH COURT I N THE CASE OF WILFRED PEREIRA LTD VS CIT (1984) 53 ITR 474 (MAD) AND THE JUDGMENT OF THE GUJARAT HIGH COURT IN RANCHHODBHAI BHAIJIBHAI PATEL (1971) 81 ITR 446 (GUJ). ACCORDING TO THE LD.DR, THE INTENTION OF TH E ASSESSEE TO USE THE LAND FOR AGRICULTURAL PURPOSE AT THE TIME OF ACQUISITION OR AFTERWARDS IS IMMATERIAL. THE QUESTION IS AT THE TIME OF TRANSFE R OF CAPITAL ASSET WHETHER THE LAND IS AN AGRICULTURAL LAND OR NOT? THE CRUCI AL ASPECT, ACCORDING TO THE LD.DR IS WHETHER THE LAND IS AGRICULTURAL LAND OR N OT?. IN THIS CASE, THIS CRUCIAL ASPECT WAS NOT PROVED BY THE ASSESSEE. REF ERRING TO THE JUDGMENT OF THE KERALA HIGH COURT IN SMT. ASHA GEORGE VS ITO ITA 542/COCH/2011, THE LD.DR SUBMITTED THAT THE VILLAGE OFFICERS CERT IFICATE CANNOT BE RELIED UPON TO HOLD THAT AGRICULTURAL OPERATIONS WERE CARR IED ON. ACCORDING TO THE LD.DR, THE KERALA HIGH COURT CONFIRMED THE VIEW OF THIS TRIBUNAL IN SMT. 8 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ASHA GEORGE IN ITA NO.542/COCH/2011 DATED 17-02-200 4, COPY OF WHICH IS AVAILABLE AT PAGE 16 OF THE PAPER BOOK. THE LD.REP RESENTATIVE HAS ALSO PRODUCED COPY OF THE DECISION OF THE TRIBUNAL IN M. K. ABDUL REHIMAN VS DY.CIT ITA NO. 301 (COCH) OF 2009 DATED OCTOBER 21, 2011 AND DECISION OF THE CHENNAI BENCH OF THIS TRIBUNAL IN PALLAVARAM KOTHANDRAMAN VS ACIT ITA NO. 1808/MAD/2011 DATED 17-10-2012. THE L D.DR HAS ALSO PLACED ON RECORD THE JUDGMENT OF THE KERALA HIGH CO URT IN JALAJA DILEEP VS THE REVENUE DIVISIONAL OFFICER IN WP NO.11784 OF 2012 (W) DATED JULY 13, 2012 AND ANOTHER JUDGMENT OF THE KERALA HIGH CO URT IN P.M ASHRAF VS THE DISTRICT COLLECTOR & ORS WP(C) NO.4832 OF 2013 DATED 27-02-2013. THE LD.DR HAS ALSO PLACED ON RECORD THE DECISION OF THIS TRIBUNAL IN IN M.J. GEORGE IN ITA NO.525/COCH/2011 DATED 16-11-2012. T HE LD.DR HAS FURTHER POINTED OUT THAT THE PROPERTY IN QUESTION I S SITUATED WITHIN TRIKKAKARA PANCHAYAT WHICH BECAME A MUNICIPALITY IN THE YEAR 2010. ACCORDING TO THE LD.DR, THE PROPERTIES IN THE SURRO UNDING AREA OF TRIKKAKARA AND KAKKANAD HAVE BEEN DEVELOPED IN THE RECENT YEARS ESPECIALLY AFTER ESTABLISHMENT OF COCHIN SPECIAL EC ONOMIC ZONE AND INFOPARK AT KAKKANAD. ACCORDING TO THE LD.DR, IN T HE ABSENCE OF ANY EVIDENCE TO SHOW THAT AGRICULTURAL OPERATIONS WERE IN FACT CARRIED ON IN THE 9 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 SUBJECT LAND, IT CANNOT BE TREATED AS AGRICULTURAL LAND WITHIN THE MEANING OF SECTION 2(14) OF THE ACT. THEREFORE, THE CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. ON A Q UERY FROM THE BENCH, WHETHER THE STATE GOVERNMENT IS MAINTAINING ANY REC ORD FOR CULTIVATION, THE LD.DR SUBMITTED THAT IN KERALA THE STATE GOVERNMENT IS NOT MAINTAINING ANY RECORD FOR CULTIVATION. 5. ON THE CONTRARY, SHRI R LOKANATHAN, THE LD.REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE SUBJECT LAND IS AN AGRI CULTURAL LAND AND IN FACT IT WAS ORIGINALLY CULTIVATED WITH PADDY AND SUBSEQU ENTLY, THE ASSESSEE WAS CULTIVATING BANANA AND GINGER. THIS IS EVIDENT FRO M THE CERTIFICATE ISSUED BY THE VILLAGE ADMINISTRATIVE OFFICER. REFERRING T O THE PROVISIONS OF SECTION 2(14) OF THE ACT, THE LD.REPRESENTATIVE SUBMITTED T HAT ORIGINALLY THE INCOME- TAX ACT EXEMPTED ALL AGRICULTURAL LAND FROM CAPITAL GAIN TAX IRRESPECTIVE OF ITS LOCATION. SUBSEQUENTLY, BY FINANCE ACT, 1970 W ITH EFFECT FROM 01-04- 1970 THE PARLIAMENT EXEMPTED THE AGRICULTURAL LAND WHICH IS SITUATED BEYOND THE JURISDICTION OF THE MUNICIPALITY OR A LO CAL BODY WHICH HAS ALL TRAPPINGS OF A MUNICIPALITY, THE POPULATION OF WHIC H EXCEED 10,000. THE PARLIAMENT HAS ALSO EXTENDED THE LIMITS OF MUNICIPA LITY WITHIN 8 KMS RADIUS 10 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 OF THE LOCAL LIMITS OF ANY MUNICIPALITY OR LOCAL BO DY NOTIFIED BY THE CENTRAL GOVERNMENT. BY FINANCE ACT, 2013 WITH EFFECT FROM 01-06-2013 THE DISTANCE OF 8 KMS RADIUS WAS RESTRICTED TO 2 KMS, 6 KMS AND 8 KMS DEPENDING UPON THE POPULATION OF THE MUNICIPALITIES MEASURED AREALY. FOR THE YEAR UNDER CONSIDERATION THE AGRICULTURAL LAND MEANS THE AGRICULTURAL LAND SITUATED BEYOND THE JURISDICTION OF A MUNICIPA LITY AND AGRICULTURAL LAND BEYOND 8 KMS RADIUS FROM THE LOCAL MUNICIPALITY NOT IFIED BY THE GOVERNMENT OF INDIA. ACCORDING TO THE LD.REPRESENT ATIVE, ADMITTEDLY, FOR THE YEAR UNDER CONSIDERATION, TRIKKAKARA WAS A PANC HAYAT. IN OTHER WORDS, TRIKKAKARA WAS NOT A MUNICIPALITY FOR THE YEAR UNDE R CONSIDERATION. IT IS ALSO NOT A NOTIFIED AREA. REFERRING TO THE NOTIFIC ATION ISSUED BY THE CBDT DATED 06-01-1994 THE LD.REPRESENTATIVE SUBMITTED TH AT IN THE STATE OF KERALA, COCHIN IS A NOTIFIED MUNICIPALITY. IN THE AREA FALLING OUTSIDE THE LIMITS OF MUNICIPALITY, THE CBDT CLEARLY MENTIONED THAT AREAS FORMING PART OF ELOOR AND MARAD PANCHAYATS UPTO A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS. THEREFORE, THE PROPERTY SITUATED WITHIN THE COCHIN MUNICIPALITY AND THE PROPERTY SITUATED BEING PART O F ELOOR AND MARAD PANCHAYATS UPTO A DISTANCE OF 8 KMS FROM COCHIN MUN ICIPAL LIMITS ALONE TO BE CONSIDERED AS CAPITAL ASSET. IN THIS CASE, THE PROPERTY IS SITUATED IN 11 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 TRIKKAKARA PANCHAYAT WHICH IS ADMITTEDLY BEYOND 8 K MS RADIUS OF COCHIN MUNICIPALITY. THEREFORE, ACCORDING TO THE LD.RPERE SENTATIVE, THE LAND IN QUESTION IS AGRICULTURAL LAND, THEREFORE, THE GAIN ARISING OUT OF SALE OF SUCH LAND DOES NOT ATTRACT ANY CAPITAL GAIN TAX. THE LD .REPRESENTATIVE FURTHER SUBMITTED THAT IN THE YEAR 1973, THE CBDT, IN FACT, NOTIFIED TRIKKAKARA PANCHAYAT AS NOTIFIED AREA FOR THE PURPOSE OF CAPIT AL GAIN TAX. HOWEVER, BY NOTIFICATION DATED 06-01-1994 THE NOTIFICATION DATE D 06-02-1973 WAS SUPERSEDED, THEREFORE, THE EARLIER NOTIFICATION DAT ED 06-02-1973 CANNOT BE APPLIED TO THE PRESENT CASE. THE CBDT FOR THE REAS ONS KNOWN TO THEM HAS SPECIFICALLY EXCLUDED TRIKKAKARA PANCHAYAT, THEREFO RE, THE ASSESSING OFFICER CANNOT TREAT TRIKKAKARA PANCHAYAT AS NOTIFIED AREA WHEN IT IS SPECIFICALLY EXCLUDED BY SUPERSEDING THE EARLIER NOTIFICATION. 6. SHRI R LOKANATHAN, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE USED THE LAND FOR CULTIVATION FOR THE PAST 20 YEARS. IN FACT, THE ASSESSEE DISCLOSED AGRICULTURAL INCOME RE GULARLY IN THE RETURNS FILED IN THE REGULAR COURSE. REFERRING TO THE LETT ER OF THE ASSESSING OFFICER ON 28-11-2003, THE LD.REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT THE ASSESSING OFFICER CALLED FOR SPECIFIC DETAILS OF AG RICULTURAL INCOME RETURNED. 12 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 THEREFORE, THE CONTENTION OF THE LD.DR THAT THE RET URN OF THE ASSESSEE WAS NOT SCRUTINIZED AND THE AGRICULTURAL INCOME RETURNE D HAS NO SANCTITY IS NOT CORRECT. THE ASSESSING OFFICER AFTER CALLING FOR T HE DETAILS OF AGRICULTURAL INCOME SPECIFICALLY ADMITTED THE SAME. A SIMILAR E XPLANATION WAS CALLED FOR BY THE ASSESSING OFFICER FROM THE ASSESSEE FOR OTHER ASSESSMENT YEARS ALSO. REFERRING TO THE CERTIFICATE SAID TO BE ISSU ED BY THE VILLAGE ADMINISTRATIVE OFFICER, THE LD.REPRESENTATIVE SUBMI TTED THAT KAKKANAD VILLAGE ADMINISTRATIVE OFFICER CERTIFIED THAT THE L AND IN QUESTION IS AN AGRICULTURAL LAND. THE LD.REPRESENTTIVE SUBMITTED THAT THE ASSESSING OFFICER HAD OPPORTUNITY TO VERIFY THE RETURN OF INCOME FILE D BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2002-034 TO 2006-07 AND AFTER CALL ING FOR EXPLANATION ACCEPTED THE RETURN WHICH DISCLOSED THE AGRICULTURA L INCOME. EVEN FOR THE YEAR UNDER CONSIDERATION THE ASSESSING OFFICER ACCE PTED THE AGRICULTURAL INCOME RETURNED BY THE ASSESSEE TO THE EXTENT OF RS .6,50,000. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, ON ONE HAND THE ASSESSING OFFICER ACCEPTED THE AGRICULTURAL INCOME RETURNED BY THE AS SESSEE AND ON THE OTHER HAND, HE CLAIMS THAT THE SUBJECT LAND IS NOT AGRICULTURAL LAND. THIS IS A CONTRARY STAND TAKEN BY THE ASSESSING OFFICER TO REJECT THE CLAIM OF THE ASSESSEE. 13 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 7. SHRI LOKANATHAN, THE LD.REPRESENTATIVE FOR THE A SSESSEE SUBMITTED THAT THE ASSESSEE IS PAYING REGULAR CONTRIBUTION TO KERALA AGRICULTURAL WORKERS WELFARE FUND AS AN AGRICULTURIST. ACCORDI NG TO THE LD.REPRESENTATIVE, THE AGRICULTURISTS, WHO CULTIVAT E THE LAND HAVING MORE THAN 0.5 HECTARES HAS TO PAY AGRICULTURAL WORKERS WELFARE FUND. REFERRING TO THE KERALA AGRICULTURAL WORKERS ACT, 1974, THE L D.REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS LIABLE TO PAY COMPEN SATION UNDER THE ACT SINCE HE WAS CULTIVATING THE LAND IN QUESTION. ON A QUERY FROM THE BENCH WHETHER THE STATE GOVERNMENT IS MAINTAINING ANY REC ORDS FOR CULTIVATION OF THE LAND, THE LD.REPRESENTATIVE VERY FAIRLY SUBMITT ED THAT NO GOVERNMENT AUTHORITY IN THE STATE OF KERALA IS MAINTAINING ANY RECORD FOR CULTIVATION. THEREFORE, THE ASSESEE HAS NO OTHER WAY EXCEPT TO P RODUCE CERTIFICATE FROM THE VILLAGE OFFICER AND AGRICULTURAL OFFICER. IN THE ABSENCE OF ANY STATUTORY RECORD OR OTHER RECORD MAINTAINED BY STAT E GOVERNMENT IN THE COURSE OF ITS ADMINISTRATIVE ACTION, ACCORDING TO T HE LD.REPRESENTATIVE, THE ASSESSEE CANNOT BE BLAMED FOR NOT PRODUCING ANY REC ORDS. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE HAS PRODUCED CE RTIFICATE FROM THE VILLAGE OFFICER TO SHOW THAT THE LAND IS AGRICULTUR AL LAND WAS USED FOR 14 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 CULTIVATION OF PADDY, BANANA, GINGER, ETC. AND THE ASSESSEE HAS ALSO RETURNED INCOME IN THE REGULAR COURSE DISCLOSING AG RICULTURAL INCOME WHICH WAS ACCEPTED BY THE DEPARTMENT. THEREFORE, THE ASS ESSEE HAS DISCHARGED HIS BURDEN IN PROVING THAT THE LAND IS USED FOR AGR ICULTURAL PURPOSE. IT IS FOR THE REVENUE TO REBUT THAT THE LAND IS NOT AN AGRICU LTURAL LAND. REFERRING TO THE JUDGMENT OF THE APEX COURT IN PRADIP J MEHTA VS CIT (2008) 300 ITR 231 (SC), THE LD.REPRESENTATIVE SUBMITTED THAT IF A T ALL THERE IS ANY DOUBT REGARDING THE NATURE OF THE LAND IN QUESTION, THE B ENEFIT OF DOUBT SHOULD ALWAYS GO TO THE TAXPAYER AS HELD BY THE APEX COURT . 8. REFERRING TO THE REMAND REPORT FILED BY THE ASSE SSING OFFICER IN THE COURSE OF PROCEEDINGS BEFORE THIS TRIBUNAL, THE LD. REPRESENTATIVE SUBMITTED THAT IT IS CONFIRMED BY THE ASSESSING OFFICER IN TH E REMAND REPORT THAT THE STATE GOVERNMENT AUTHORITIES ARE NOT MAINTAINING AN Y RECORD FOR CULTIVATION OF LAND. NONE OF THE AUTHORITIES EXAMINED BY THE A SSESSING OFFICER COULD THROW ANY LIGHT AS TO HOW THE FOOD PRODUCTION OF TH E STATE WAS ESTIMATED. EVEN THE VILLAGE ADMINISTRATIVE OFFICER AND ADDITIO NAL TAHSILDAR HAVE STATED THAT THEY HAVE NO RECORDS OF CULTIVATION. T HEY HAVE ALSO CLARIFIED THAT THERE IS NO SYSTEM IN PLACE TO RECORD THE CULT IVATION MADE BY THE 15 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 AGRICULTURISTS. THE ADDITIONAL TAHSILDAR CLARIFIED BEFORE THE ASSESSING OFFICER THAT UNDER THE KERALA AGRICULTURAL WORKERS WELFARE FUND, CONTRIBUTION HAS TO BE MADE ONLY BY THE LAND OWNERS , WHO ARE CULTIVATING THE LAND EXCEEDING 0.5 HECTARES. WHEN THE ADDITION AL TAHSILDAR WAS EXAMINED FOR THE SECOND TIME, SHE, FOR THE REASONS KNOWN TO HER CLARIFIED THAT THE WORKERS WELFARE FUND WAS COLLECTED FROM T HE LAND OWNERS IRRESPECTIVE OF THE FACT THAT THE LAND IS AGRICULTU RAL LAND OR NOT? ACCORDING TO THE LD.REPRESENTATIVE, KERALA AGRICULTURAL WORKE RS WELFARE FUND IS AIMED TO PROTECT THE AGRICULTURAL WORKERS, THEREFOR E, ONLY THE LAND OWNERS HOLDING AGRICULTURAL LAND, WHO ARE CULTIVATING THE SAME HAS TO PAY THE SAME. THEREFORE, THE ASSESSING OFFICER CANNOT PLAC E RELIANCE ON THE RETRACTED STATEMENT MADE BY THE ADDITIONAL TAHSILDA R DURING HER EXAMINATION. THE PRINCIPAL AGRICULTURAL OFFICER HA S ALSO CONFIRMED THAT THE LAND IS A FALLOW LAND. ACCORDING TO THE LD.REPRESE NTATIVE FALLOW LAND IS NOTHING BUT A LAND AFTER CULTIVATION; IT WAS MADE R EADY FOR FURTHER CULTIVATION. ACCORDING TO THE LD.REPRESENTATIVE, W HEN THE LAND WAS CULTIVATED WITH ONE CROP IT HAS TO BE MADE READY FO R ANOTHER CULTIVATION. ONCE THE LAND IS MADE READY, THE AGRICULTURISTS HAV E TO GIVE A REASONABLE PERIOD FOR RECLAMATION. THIS SHOWS THAT THE LAND W AS EARLIER CULTIVATED AND 16 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 IT WAS RECLAIMED FOR THE PURPOSE OF NEXT CULTIVATIO N. THEREFORE, THE AGRICULTURAL OFFICER CONFIRMED THAT THE LAND IN QUE STION IS AN AGRICULTURAL LAND. ACCORDING TO THE LD.REPRESENTATIVE, THE LAND IN QUESTION WAS ADMITTEDLY PURCHASED IN THE YEAR 1980S WHEN THE PRE SENT KAKKANAD WAS NOT EVEN IN DREAM. THEREFORE, ACCORDING TO THE LD. REPRESENTTIVE, IN THE ABSENCE OF ANY OTHER REVENUE RECORDS MAINTAINED BY THE STATE GOVERNMENT FOR CULTIVATION, THE MATERIAL AVAILABLE IN THE FORM OF CERTIFICATE OF VILLAGE OFFICER AND THE CLASSIFICATION MADE BY THE STATE GO VERNMENT CANNOT BE IGNORED. 9. SHRI M.A. JOHN, THE LD.REPRESENTATIVE FOR THE AS ESSEE IN ITAT NO.336/COCH/2013 SUBMITTED THAT THE ASSESSEE, SHRI GEORGE THOMAS PURCHASED 19.05 ACRES OF PADDY FIELD ON 18-03-1988 AND 11 ACRES OF SLOPING LAND. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE WAS CULTIVATING PADDY IN 19.50 ACRES OF LAND AND THERE WERE COCONUT TREES AND BANANA CULTIVATION IN THE REMAINING 11 ACRES OF LAN D. SINCE PADDY CULTIVATION WAS UNPROFITABLE THE PADDY FIELD WAS FI LLED WITH EARTH WITH INTENTION TO CULTIVATE COCONUT TREES OR ANY OTHER S UITABLE CROP. IN THE MEAN TIME, THE LAND WAS ACQUIRED BY GOVERNMENT FOR INFOR PARK PROJECT. 17 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ACCORDING TO THE LD.REPRESENTATIVE, THE AGRICULTURA L OFFICER CERTIFIED THT THE ASSESSEE OWNS 30.50 ACRES OF LAND IN SURVEY NO.645/ 12, 647/7 IN KAKKANAD VILLAGE. REFERRING TO FORM NO.9(B) ISSUED BY LAND ACQUISITION OFFICER, THE COPY OF WHICH IS AVAILABLE ON PAGE 4 O F THE PAPER BOOK, THE LD.REPRESENTATIVE SUBMITTED THAT THE LAND ACQUISITI ON OFFICER CERTIFIED THAT 11 ACRES OF LAND IS A DRY LAND AND 19.5 ACRES OF LA ND IS A WETLAND FILLED SUBSEQUENTLY. ACCORDING TO THE LD.REPRESENTATIVE, ONLY FOR A TEMPORARY PERIOD, THE AGRICULTURAL OPERATIONS WERE NOT CARRIE D OUT. THE LD.REPRESENTATIVE SUBMITTED THAT TEMPORARY NON USER OF LAND FOR CULTIVATION CANNOT CHANGE THE CHARACTER OF THE LAND. THE ADJOI NING LANDS WERE AGRICULTURAL LANDS WHEN THE GOVERNMENT INITIATED PR OCEEDINGS FOR ACQUISITION. ACCORDING TO THE LD.REPRESENTATIVE, T HE LAND IN QUESTION IS NOT INDEPENDENTLY ACCESSIBLE, THEREFORE, IT COULD NOT B E USED FOR ANY PURPOSE OTHER THAN AGRICULTURE. ACCORDING TO THE LD.REPRES ENTATIVE, THE LAND IN QUESTION IS SITUATED 7 KMS AWAY FROM ERNAKULAM COLL ECTORATE AT SEAPORT AIRPORT ROAD. THEREFORE, IT SHOULD NOT BE CONFUSED MERELY BECAUSE SOME DEVELOPMENT TOOK PLACE IN THE WESTERN AND NORTHERN PART OF KAKKANAD. ACCORDING TO THE LD.REPRESENTATIVE, NO DEVELOPMENT WAS TAKEN PLACE IN THIS PART OF THE AREA WHERE THE SUBJECT LAND IS SITUATED PRIOR TO LAND ACQUISITION. 18 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 THE LD.REPRESENTATIVE SUBMITTED THAT THE STATE GOVE RNMENT TREATED THE LAND AS AGRICULTURAL LAND AND NO TDS WAS MADE ON THE COM PENSATION PAID TO THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE IS REGULARLY RETURNING AGRICULTURAL INCOME AND THE ASSESSING OFF ICER ACCEPTED THE SAME. THE ASSESSING OFFICER, ACCORDING TO THE LD REPRESEN TATIVE FOR THE ASSESSEE IS NOT CORRECT IN SAYING THAT THE ASSESSEE IS NOT A N AGRICULTURIST MERELY BECAUSE HE HAPPENED TO BE A BUSINESSMAN. ACCORDING TO THE LD.REPRESENTATIVE, THERE IS NO RESTRICTION IN THIS COUNTRY TO CARRY ON AGRICULTURAL ACTIVITY BY A BUSINESSMAN OR OTHER PRO FESSIONALS. SO LONG AS THE LAND IS CULTIVATED BY THE ASSESSEE IRRESPECTIVE OF THE FACT THAT WHETHER HE IS A BUSINESSMAN OR OTHERWISE, THE LAND IN QUEST ION HAS TO BE TREATED AS AGRICULTURAL LAND. THEREFORE, THE ASSESSING OFFICE R IS NOT JUSTIFIED IN TREATING THE LAND AS NON AGRICULTURAL LAND. THE CIT(A) HAS SIMPLY FOLLOWED THE ORDER OF THE ASSESSING OFFICER WITHOUT APPLYING IS MIND I NDEPENDENTLY. 10. ON THE CONTRARY SHRI K.K. JOHN ADOPTED THE ARGU MENTS ADVANCED IN THE CASE OF SHRI M.J. GEORGE. 19 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 11. NOW COMING TO ITA NO.561/COCH/2011 IN THE CASE OF SMT. MARY JOHN POOMKUDY; SMT. ANITHA ZACHARIAS AND SHRI JOHN AUGUSTY ALONGWITH THE CROSS OBJECTIONS, THE LD.DR, SHRI K.K. JOHN REI TERATED ARGUMENTS ADVANCED IN THE CASE OF SHRI M.J. GEORGE. 12. SHRI P.K. SASIDHARAN, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE LEGISLATURE HAS REFERRED AGRICUL TURAL LAND IN SECTION 2(14)(III) OF THE INCOME-TAX ACT. AS PER THIS DEFI NITION, THE LEGISLATURE EXCLUDED ANY AREA WHICH IS COMPRISED WITHIN THE JUR ISDICTION OF THE MUNICIPALITY NOTIFIED OR AREA OF CONTAINMENT BOARD, ETC AND HAS ALSO EXCLUDED THE AREA WITHIN SUCH DISTANCE NOT BEING MO RE THAN 8 KMS WHICH WAS NOTIFIED IN THE OFFICIAL GAZETTE. REFERRING TO SECTION 10(37), THE LD.REPRESENTATIVE SUBMITTED THAT THE PROFIT / INCOM E RISING ON SALE OR COMPULSORY ACQUISITION OF SUCH LAND REFERRED TO IN SECTION 2(14)(III) (A) AND 2(14)(III)(B) DO NOT FORM PART OF THE TOTAL INCOME. REFERRING TO SECTION 54B, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED TH AT THE CAPITAL GAIN ARISING FROM TRANSFER OF A CAPITAL ASSET WHICH IS U SED BY THE ASSESSEE FOR AGRICULTURAL PURPOSE PURCHASED ANOTHER LAND FOR BEI NG USED FOR AGRICULTURAL PURPOSE WITHIN A PERIOD OF TWO YEARS ARE EXEMPT FRO M INCOME-TAX. IN 20 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 SECTION 2(14)(III), THE LEGISLATURE INTENTIONALLY U SED THE WORDS AGRICULTURAL LANDS, THEREFORE, WHEN THE AGRICULTURAL LAND WHICH WAS BEYOND 8 KMS RADIUS OF THE MUNICIPALITY WAS TRANSFERRED, IT WILL NOT FORM PART OF THE CAPITAL ASSET, HENCE, THE QUESTION OF CHARGING CAPITAL GAIN TAX DOES NOT ARISE FOR CONSIDERATION. ACCORDING TO THE LD.REPRESENTATIVE FOR CHARGING CAPITAL GAIN TAX THE LAND SHOULD BE A CAPITAL ASSET WITHIN THE M EANING OF SECTION 2(14) OF THE ACT. ACCORDING TO THE LD.REPRESENTATIVE, TH E LEGISLATURE EXCLUDED THE CAPITAL GAIN ARISING FROM TRANSFER OF AGRICULTURAL LAND SITUATED WITHIN THE SPECIFIED URBAN LIMIT BY INTRODUCING SECTION 10(37) OF THE ACT WITH EFFECT FROM 01-04-2005. THEREFORE, ACCORDING TO THE LD.RE PRESENTATIVE, THE PROFIT / GAIN ARISING OUT OF ACQUISITION OF AGRICULTURAL LAN D SITUATED WITHIN THE SPECIFIED URBAN LIMIT AND USED FOR CULTIVATION DURI NG THE PRECEDING TWO YEARS BY THE ASSESSEE OR HIS PARENTS DO NOT FORM PA RT OF THE TOTAL INCOME OF THE ASSESSEE. IN RESPECT OF AGRICULTURAL LAND WHIC H IS SITUATED OUTSIDE THE SPECIFIED URBAN LIMIT, THE CONDITION REQUIRING THE ASSESSEE TO USE THE LAND FOR AGRICULTURAL PURPOSE FOR TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER IS SPECIFICALLY EXCLUDED. IN OTHER WORDS, ACCORDING TO THE LD.REPRESENTATIVE, SECTION 2(14) WHICH DEFINES CAPI TAL ASSET DOES NOT REQUIRE THAT THE LAND SHOULD BE USED FOR CULTIVATIO N FOR ANY PARTICULAR PERIOD. 21 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ACCORDING TO THE LD.REPRESENTATIVE, WHAT IS REQUIRE D IS THAT THE LAND SHOULD BE AN AGRICULTURAL LAND. ONCE IT IS AN AGRICULTURA L LAND WHICH IS BEYOND THE SPECIFIED URBAN LIMIT, THE LEGISLATURE DOES NOT SPE CIFY THAT THE LAND SHOULD BE USED FOR CULTIVATION PURPOSE FOR TWO YEARS IMMED IATELY PRECEDING THE DATE OF TRANSFER. THEREFORE, ACCORDING TO THE LD.R EPRESENTAIVE, THE LEGISLATURE IS CLEAR IN THEIR MIND. FOR THE PURPOS E OF SECTION 10(37) AND 54B THE USE OF THE LAND FOR AGRICULTURAL PURPOSE IS MANDATORY, HOWEVER, FOR THE PURPOSE OF SECTION 2(14), THE USE OF THE LAND F OR AGRICULTURAL PURPOSE IS IMMATERIAL AND WHAT IS REQUIRED IS THAT THE LAND SH OULD BE CLASSIFIED AN AGRICULTURAL LAND. IN THIS CASE, ACCORDING TO THE LD.REPRESENTATIVE, THE LAND IS CLASSIFIED AS AGRICULTURAL LAND IN THE REVENUE R ECORDS. WHAT IS DISPUTED BY THE REVENUE IS THAT THE LAND WAS NOT USED FOR CU LTIVATION. THOUGH THE ASSESSEE CLAIMS THAT THE LAND WAS SUBJECTED TO CULT IVATION FOR NUMBER OF YEARS, HOWEVER, THE ASSESSEE COULD NOT PRODUCE ANY RECORDS OTHER THAN THE CERTIFICATE FROM THE VILLAGE OFFICER AND THE AG RICULTURAL OFFICER. THEREFORE, ACCORDING TO THE LD.REPRESETNATIVE, IN T HE ABSENCE OF ANY RECORDS MAINTAINED BY STATE GOVERNMENT FOR CULTIVAT ION THE ASSESSEE CANNOT BE EXPECTED TO PRODUCE ANY DOCUMENT. FURTHE RMORE, SINCE THE AGRICULTURAL LAND SITUATED OUTSIDE THE SPECIFIED UR BAN LIMIT DOES NOT FORM 22 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 PART OF THE CAPITAL ASSET WITHIN THE MEANING OF SEC TION 2(14), THE GAIN ARISING OUT OF SUCH LAND ON SALE OR BY ACQUISITION CANNOT BE TREATED AS CAPITAL GAIN. UNLESS AND UNTIL THE REVENUE BROUGHT ON RECORD SOME MATERIAL TO SHOW THAT THE LAND IN QUESTION IS A CAP ITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT, THE GAIN ARISI NG OUT OF SUCH TRANSFER OR ACQUISITION CANNOT BE SUBJECTED TO TAXATION. 13. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT TH E LAND IS CLASSIFIED AS NILAM IN THE REVENUE RECORDS AS CERTIFIED BY THE TA HSILDAR. NILAM MEANS WETLAND / PADDY FIELD. ACCORDING TO THE LD.REPRESE NTATIVE, CONVERSION OF THE PADDY FIELD FOR NON AGRICULTURAL PURPOSE IS PROHIBI TED BY THE KERALA LAND UTILIZATION ORDER, 1967. SUBSEQUENTLY, THE STATE L EGISLATURE HAS ENACTED THE KERALA CONSERVATION OF PADDY LAND AND WETLAND A CT, 2008. THEREFORE, FROM YEAR 1967 THERE IS A PROHIBITION FO R CONVERSION OF THE PADDY FIELD INTO NON AGRICULTURAL LAND. WHEN THERE IS A PROHIBITION FOR CONVERSION, ACCORDING TO THE LD.REPRESENTATIVE, THE AGRICULTURAL LAND CONTINUES TO BE AN AGRICULTURAL LAND FOR ALL PRACTI CAL PURPOSE. THE SUBSEQUENT PURCHASER GOT PERMISSION FROM THE GOVERN MENT FOR CONVERSION OF THE USE OF THE LAND CANNOT BE A REASON TO TREAT THE SUBJECT LAND IN 23 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 QUESTION AS CAPITAL ASSET. THE LD.REPRESENTATIVE F URTHER SUBMITTED THAT THE PROPERTY IS SITUATED OUTSIDE THE MUNICIPALITY AND O UTSIDE THE NOTIFIED AREA. THEREFORE, THE PROFIT ON SALE OF THE AGRICULTURAL L AND IS NOT EXIGIBLE TO CAPITAL GAIN TAX. 14. ACCORDING TO THE LD.REPRESETNATIVE, AGRICULTURE IS A STATE SUBJECT UNDER THE CONSTITUTION OF INDIA. THE STATE GOVERNM ENT IN EXERCISE OF THEIR CONSTITUTIONAL POWERS CLASSIFIED THE LAND AS AGRICU LTURAL LAND AND IMPOSED VARIOUS RESTRICTIONS ON ITS USAGE AND CONVERSION. SO LONG AS CLASSIFICATION AS AGRICULTURAL LAND REMAINS IN THE REVENUE RECORDS OF STATE GOVERNMENT, ACCORDING TO THE LD.REPRESENTATIVE, THE AGRICULTURA L LAND CONTINUES TO BE AN AGRICULTURAL LAND FOR ALL PRACTICAL PURPOSE. REFER RING TO THE JUDGMENT OF THE GUJARAT HIGH COURT IN CWT VS SHASHI BEN (2007) 288 ITR 319 (GUJ), THE LD.REPRESENTATIVE SUBMITTED THAT ONCE THE LAND IS C LASSIFIED AS AGRICULTURAL LAND, IT WOULD CONTINUE TO BE AN AGRICULTURAL LAND. IF SOMEBODY THINKS THAT THE LAND CAN BE PUT TO USE FOR SOME OTHER PURPOSE, OTHER THAN AGRICULTURAL PURPOSE AND PURCHASE LAND FOR HIGHER PRICE AND THER EAFTER CHANGES THE USE THE PROPERTY WOULD NOT CHANGE ITS CHARACTER IN THE HANDS OF THE ASSESSEE AS LONG AS THE ASSESSEE DOES NOT CHANGE THE USE OR PUT THE LAND FOR SOME 24 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 OTHER PURPOSE. IN THIS CASE ALSO, ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE HAS NOT PUT THE LAND IN QUESTION FOR ANY O THER PURPOSE THAN AGRICULTURAL PURPOSE. THE ASSESSEE HAS NOT APPLIED TO ANY AUTHORITY FOR CHANGE OF USE. THEREFORE, ACCORDING TO THE LD.REPR ESENTATIVE, THE CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE AND D ELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 15. ON THE CONTRARY, SHRI K.K. JOHN, THE LD.DR SUBM ITTED THAT THE ASSESSEE SOLD THE LAND TO REAL ESTATE BUILDER AT A HIGHER PRICE. THE ASSESSING OFFICER FOUND THAT NO AGRICULTURAL ACTIVI TY WAS CARRIED ON IN THE ENTIRE AREA AND MOST OF THE LANDS WERE USED BY AFFL UENT BUSINESSMAN AS LAND BANK ANTICIPATING HIGHER VALUE. THE LD.DR FUR THER SUBMITTED THAT IN THE RECENT TIMES DEVELOPMENTAL ACTIVITIES ARE TAKING PL ACE AROUND COCHIN PARTICULARLY IN KAKKANAD AND TRIKKAKARA, AREA. HOW EVER, THE CIT(A) BY PLACING RELIANCE ON THE JUDGMENT OF THE KERALA HIGH COURT IN CIT VS A ABOOBAKER IN ITA NO.1295 OF 2009 DATED 21-12-2010 F OUND THAT THE PROPERTY SOLD BY THE ASSESSEE WAS AGRICULTURAL LAND , THEREFORE, THE PROFIT ARISING ON SALE OF SUCH PROPERTY ARE EXEMPT FROM LE VY OF CAPITAL GAIN. ACCORDING TO THE LD.DR, THE KERALA HIGH COURT IN TH E CASE OF A ABOOBAKER 25 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. THE HIGH COURT HAS ONLY HELD THAT AGRICULTURAL LAND OUTSIDE THE MUNICIPAL L IMITSARE NOT CAPITAL ASSETS, THEREFORE, EXEMPT FROM CAPITAL GAIN TAX. IN THIS C ASE, ACCORDING TO THE LD.REPRESENTATIVE, NO EVIDENCE WAS PRODUCED TO SHOW THAT THE AGRICULTURAL ACTIVITY WAS CARRIED ON IN THE ABOVE LAND. THEREFO RE, ACCORDING TO THE LD.REPRESENTATIVE, THE CIT(A) IS NOT CORRECT IN DEL ETING THE ADDITION. REFERRING TO THE CERTIFICATE FROM THE VILLAGE OFFIC ER, THE LD.DR SUBMITTED THAT THE VILLAGE OFFICERS CERTIFICATE CANNOT BE RELIED UPON TO HOLD THAT AGRICULTURAL OPERATIONS WERE CARRIED ON. THE LD.REPRESENTATIVE PLACED HIS RELIANCE ON THE JUDGMENT OF THE KERALA HIGH COURT IN SMT. ASHA GEORGE VS ITO 351 ITR 123 (KER). ON A QUERY FROM THE BENCH, IN THE A BSENCE OF ANY RECORDS MAINTAINED BY GOVERNMENT OF KERALA FOR CULTIVATION ACCOUNT, WHAT KIND OF DOCUMENT THE ASSESSEE COULD PRODUCE TO ESTABLISH TH E CULTIVATION, THE LD.DR SUBMITTED THAT IT IS FOR THE ASSESSEE TO PROD UCE NECESSARY MATERIAL IF THEY WANT EXEMPTION FROM INCOME-TAX. ACCORDING TO THE LD.DR MERELY BECAUSE THE LAND WAS SITUATED IN AN AREA BEYOND THE NOTIFIED AREA AND IT WAS CLASSIFIED AS AGRICULTURAL LAW IN THE REVENUE R ECORDS, IT CANNOT BE TREATED AS AGRICULTURAL LAND. THE LD.DR PLACED HIS RELIANCE ON THE DECISION OF THE CHENNAI BENCH OF THIS TRIBUNAL IN THE CASE O F PALLAVARAM 26 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 KOTHANDAAMAN RAMESH IN ITA NO.1808/MDS/2011 DATED 1 7-10-2011, COPY OF WHICH IS AVAILABLE AT PAPER BOOK PAGE 10. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. SECTION 45 OF THE INCOME-TAX ACT PROVIDES FOR TAXATION OF CAPITAL GAIN IN RESPECT OF PROFIT OR GAIN ARISING FROM TRANSFER OF CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR. THEREFORE, FOR THE PURPOSE OF ASSESSMENT OF CAPITAL GAIN, THERE SHALL BE A TRANSFER OF A CAPITAL ASSET IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION. UNLESS THE ASSET TRANSFERRED IS A C APITAL ASSET, THERE CANNOT BE ANY LEVY OF TAX ON THE PROFIT ON SALE U/S 45 OF THE ACT. IN THIS CASE, ADMITTEDLY, THERE WAS A TRANSFER OF AN ASSET IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION EITHER BY S ALE OR BY COMPULSORY ACQUISITION BY GOVERNMENT. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE ASSET TRANSFERRED / ACQUIRED IS A CAPIT AL ASSET WITHIN THE MEANING OF INCOME-TAX ACT OR NOT? CAPITAL ASSET IS DEFINED U/S 2(14) OF THE INCOME-TAX ACT, WHICH READS AS FOLLOWS: 27 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 2(14) CAPITAL ASSET MEANS PROPERTY OF ANY KIND H ELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINES S OR PROFESSION, BUT DOES NOT INCLUDE (I) ANY STOCK-IN-TRADE, CONSUMABLE STORES OR RAW MA TERIALS HELD FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION ; (II) PERSONAL EFFECTS, THAT IS TO SAY, MOVABLE PROP ERTY (INCLUDING WEARING APPAREL AND FURNITURE) HELD FOR PERSONAL USE BY THE ASSESSEE OR ANY MEMBER OF HIS FAMILY DEPENDENT ON HIM, BUT EXCLUDES (A) JEWELLERY; (B) ARCHAEOLOGICAL COLLECTIONS; (C) DRAWINGS; (D) PAINTINGS; (E) SCULPTURES; OR (F) ANY WORK OF ART. EXPLANATION.- FOR THE PURPOSES OF THIS SUB-CLAUSE, JEWELLERY INCLUDES (A) ORNAMENTS MADE OF GOLD, SILVER, PLATINUM OR ANY OTHER PRECIOUS METAL OR ANY ALLOY CONTAINING ONE OR MORE OF SUCH PRECIOUS METALS, WHETHER OR NOT CONTAINING ANY PRECIOUS OR SEMI-PRECIOUS STONE, AND WHETHER OR NOT WORKED OR SEWN INTO ANY WEARING APPAREL; 28 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (B) PRECIOUS OR SEMI-PRECIOUS STONES, WHETHER OR NO T SET IN ANY FURNITURE, UTENSIL OR OTHER ARTICLE OR WORKE D OR SEWN INTO ANY WEARING APPAREL; (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SI TUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURIS DICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOW N 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 (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MOR E THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD REFERRED TO IN ITE M (A), AS THE CENTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANIZATION OF TH AT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE ; (IV) 6 PER CENT GOLD BONDS, 1977, OR 7 PER CENT G OLD BONDS, 1980, OR NATIONAL DEFENCE GOLD BONDS, 1980, ISSUED BY THE CENTRAL GOVERNMENT; (V) SPECIAL BEARER BONDS, 1991, ISSUED BY THE CENTR AL GOVERNMENT; 29 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (VI) GOLD DEPOSIT BONDS ISSUED UNDER THE GOLD DEPOS IT SCHEME, 1999 NOTIFIED BY THE CENTRAL GOVERNMENT; 16. THE DEFINITION IS AN EXCLUSIVE ONE. IT EXCLUDE S CERTAIN ASSETS FROM CAPITAL ASSET UNDER THE INCOME-TAX ACT. BY FINANCE ACT, 1970 WITH EFFECT FROM 01-04-1970, THE ABOVE SUB CLAUSE (III) WAS SUB STITUTED IN THE DEFINITION. BEFORE 01-04-1970, AGRICULTURAL LAND I N INDIA WAS NOT INCLUDED IN THE DEFINITION OF CAPITAL ASSET. IN OTHER WORDS, T HE ENTIRE AGRICULTURAL AREA IN THE CONTRARY IRRESPECTIVE OF ITS LOCATION WAS EXCLU DED FROM THE DEFINITION OF CAPITAL ASSET UPTO 31-03-1970. ONLY WITH EFFECT FR OM 01-04-1970 BY FINANCE ACT, 1970, THE AGRICULTURAL LAND WITHIN THE MUNICIPAL AREA AND WITHIN SUCH DISTANCE NOT BEING MORE THAN 8 KMS FROM THE NOTIFIED MUNICIPALITY WAS EXCLUDED FROM THE DEFINITION OF CA PITAL ASSET. IN OTHER WORDS, THE AGRICULTURAL LAND WITHIN THE MUNICIPAL L IMIT OR WITHIN 8 KMS RADIUS OF THE LOCAL MUNICIPALITY NOTIFIED IS TREATED AS CA PITAL ASSET. BY FINANCE ACT, 2013 WITH EFFECT FROM 01-04-2014, THE LOCAL LI MIT WITHIN THE MUNICIPAL LIMIT WAS FURTHER MODIFIED / AMENDED WITH RESPECT T O THE POPULATION OF THE RESPECTIVE MUNICIPALITY. FOR THE PURPOSE OF THIS A PPEAL, WE HAVE TO CONSIDER THE PROVISIONS OF LAW AS IT EXISTED AFTER 01-04-1970 AND BEFORE 01- 04-2014. AS PER THE DEFINITION OF CAPITAL ASSET WH ICH EXISTED FOR THE YEAR 30 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 UNDER CONSIDERATION, THE PROPERTY SITUATED BEYOND T HE JURISDICTION OF THE MUNICIPAL LIMIT OR BEYOND 8 KMS RADIUS OF THE NOTIF IED MUNICIPAL LIMIT ARE ALL AGRICULTURAL LAND. THEREFORE, THE AGRICULTURAL LAN D WHICH IS SITUATED BEYOND THE MUNICIPAL LIMITS AND BEYOND 8 KMS FROM THE LOCA L LIMITS OF THE NOTIFIED MUNICIPALITY IS EXEMPT OR EXCLUDED FROM THE DEFINIT ION OF CAPITAL ASSET. 17. THE QUESTION NOW ARISES FOR CONSIDERATION IS WH ETHER THE SUBJECT MATTER OF THE LAND WHICH IS SITUATED IN KAKKANAD FA LLS WITHIN THE JURISDICTION OF THE MUNICIPALITY OR WITHIN 8 KMS RADIUS OF THE N OTIFIED MUNICIPALITY. ADMITTEDLY, KAKKANAD VILLAGE WHERE THE PROPERTY IS SITUATED IN ALL THE APPEALS FALLS WITHIN THE TERRITORIAL JURISDICTION O F TRIKKAKARA PANCHAYAT AT RELEVANT POINT OF TIME. TRIKKAKARA PANCHAYAT WAS A NOTIFIED AREA BY THE NOTIFICATION DATED 06-02-1973. THIS NOTIFICATION D ATED 06-02-1973WAS SUPERSEDED BY ANOTHER NOTIFICATION DATED 06-01-1994 OMITTING / EXCLUDING WHEREIN TRIKKAKARA PANCHAYAT FOR THE PURPOSE OF CAP ITAL GAIN. IT MAY NOT BE NECESSARY FOR THIS TRIBUNAL TO EXAMINE THE REASO NS FOR EXCLUSION OR OMISSION OF TRIKKAKARA PANCHAYAT FROM THE NOTIFIED AREA. SUFFICE TO SAY THAT TRIKKAKARA PANCHAYAT IS NOT A NOTIFIED AREA ON AND FROM 06-01-1994. IN THE NOTIFICATION DATED 06-01-1994 THE COCHIN MUN ICIPALITY IS A NOTIFIED 31 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 MUNICIPALITY INCLUDING PART OF ELOOR AND MARAD PANC HAYATS UPTO A DISTANCE OF 8 KMS FROM THE MUNICIPAL LIMITS. FOR THE PURPOS E OF CONVENIENCE, WE ARE REPRODUCING THE RELEVANT PARA OF NOTIFICATION D ATED 06-01-1994 IN RESPECT OF COCHIN MUNICIPALITY: SR. NAME OF THE NAME OF THE DETAILS OF AREAS NO. STATE OR UNION MUNICIPALITY OR FALLING OUTSIDE THE TERRITORY CANTONMENT LOCAL LIMIT OR MUNI- BOARD FALLING IN CIPALITY OR CANTON- THE STATE/UNION MENT BOARD, ETC. TERRITORY MEN- MENTIONED UNDER TIONED UNDER COLUMN 3. COLUMN (2). 1 2 3 4 ___ ______________ _____________ ______________ 12 KERALA 1 TO 1 XXXXX AREAS FORMING PART 3 KOCHI (COCHIN) OF ELOOR AND MARDU PANCHAYATS UPTO A DISTANCE OF 8 KMS. FROM THE MUNICIPAL LIMITS. ____ _____________ _____________ _______________ IT IS AN ADMITTED FACT THAT SUBJECT LANDS ARE BEYON D MUNICIPAL LIMITS OR BEYOND 8 KMS RADIUS FROM THE COCHIN MUNICIPAL LIMIT S. THEREFORE, THE KAKKANAD VILLAGE WHERE THE SUBJECT LAND IS SITUATED DOES NOT FORM PART OF THE NOTIFIED AREA, HENCE THE AGRICULTURAL LAND SITU ATED IN KAKKANAD VILLAGE 32 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 WHICH FALLS IN TRIKKAKARA PANCHAYAT WAS EXCLUDED FR OM THE DEFINITION OF CAPITAL ASSET U/S 2(14) OF THE ACT. IN OTHER WORDS , THE AGRICULTURAL LAND SITUATED IN KAKKANAD VILLAGE WHICH FALLS IN TRIKKAK ARA PANCHAYAT DOES NOT FALL WITHIN THE DEFINITION OF CAPITAL ASSET U/S 2(1 4) OF THE ACT. 18. THE NEXT ISSUE WOULD ARISE FOR CONSIDERATION IS WHETHER THE SUBJECT LAND IS AN AGRICULTURAL LAND OR NOT? IF THE SUBJEC T LAND IS NOT AN AGRICULTURAL LAND THEN IT WOULD FALL WITHIN THE DEFINITION OF CA PITAL ASSET. WHAT IS EXCLUDED IS ONLY THE AGRICULTURAL LAND AND NOT ALL LAND. THEREFORE, WE HAVE TO SEE WHETHER THE SUBJECT LAND IS AN AGRICULTURAL LAND OR NOT? THE TERM AGRICULTURAL LAND IS NOT DEFINED IN THE INCOME-TAX ACT. THE CONSTITUTION OF INDIA, ARTICLE 366(1) DEFINES AGRICULTURE INCOME WH ICH READS AS FOLLOWS: ART.366(1). AGRICULTURAL INCOME MEANS AGRICULTUR AL INCOME AS DEFINED FOR THE PURPOSE OF THE ENACTMENT RELATIN G TO INCOME-TAX. IN VIEW OF THE ABOVE CONSTITUTIONAL PROVISION EVEN FOR AGRICULTURAL INCOME WE HAVE TO REFER TO THE DEFINITION GIVEN IN THE INC OME-TAX ACT. IN THE ABSENCE OF ANY EXPRESS DEFINITION EITHER IN THE CON STITUTION OF INDIA OR IN 33 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 THE INCOME-TAX ACT IN RESPECT OF AGRICULTURAL LAND WE HAVE TO TAKE THE MEANING IN COMMON PARLANCE. IN COMMON PARLANCE, TH E LAND WHICH IS MEANT FOR CULTIVATION IS CONSIDERED TO BE AN AGRICU LTURAL LAND. THIS TRIBUNAL FINDS A SIMILAR REFERENCE AGRICULTURAL LAND IN WE ALTH-TAX ACT. SECTION 2(E) OF THE WEALTH-TAX ACT, 1957 READS AS FOLLOWS: 2. IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQUI RES,- (A) TO (D) XXXXXXXXXXXXXXXXXXX (E) ASSETS INCLUDES PROPERTY OF EVERY DESCRIPTION , MOVABLE OR IMMOVABLE, BUT DOES NOT INCLUDE,- (1) IN RELATION TO ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 1969, OR ANY EARLIER ASSESSMENT YEAR (I) AGRICULTURAL LAND AND GROWING CROPS, GRASS OR STANDING TREES ON SUCH LAND: THEREFORE, AGRICULTURAL LAND AND GROWING CROPS, GRA SS AND STANDING TREES ON SUCH LAND ARE EXCLUDED FROM THE DEFINITION OF A SSET EVEN UNDER THE WEALTH-TAX ACT. AN OCCASION AROSE BEFORE THE APEX COURT IN CWT VS OFFICER INCHARGE (COURT OF WARD PAIGAH (1976) 105 I TR 133 (SC) TO CONSIDER THE TERM AGRICULTURAL LAND OCCURRED IN S ECTION 2(E) OF THE WEALTH- 34 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 TAX ACT. THEREFORE, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE INTERPRETATION GIVEN BY THE APEX COURT IN THE CASE OF CWT VS OFFICER INCHARGE (SUPRA) IN RESPECT OF AGRICULTURAL LAND UN DER THE CONTEXT OF WEALTH-TAX ACT WOULD BE MORE APPROPRIATE AND PROPER FOR DEFINING THE TERM AGRICULTURAL LAND. THE APEX COURT, AFTER REFERRI NG TO THE PROVISIONS OF THE CONSTITUTION OF INDIA, MORE PARTICULARLY ENTRY 86, LIST I TO 7 TH SCHEDULE, FOUND THAT AGRICULTURAL LAND IS ONLY A SPECIES OF L AND. THE MAIN QUESTION IS WHETHER IT SHOULD STAND FOR ALL LANDS WHICH IS CAPA BLE OF BEING UTILIZED FOR AGRICULTURAL PURPOSE AND OR FOR SOME LAND WHICH EIT HER IS BEING ACTUALLY USED OR HAS BEEN SET APART OR PREPARED FOR USE FOR AGRICULTURAL PURPOSE SO AS TO INDICATE THE INTENTION OF THE OWNER OR OCCUPI ER OF THE LAND TO PUT IT TO AGRICULTURAL USES. REFERRING TO THE EARLIER JUDGME NT OF THE APEX COURT IN CIT VS RAJA BINOY KUMAR SUHAS ROY (1957) 32 ITR 466 THE APEX COURT FOUND THAT THE DETERMINATION OF THE CHARACTER OF TH E LAND ACCORDING TO THE PURPOSE FOR WHICH IT IS MEANT OR SET UP FOR AND CAP ABLE USE IS A MATTER WHICH OUGHT TO BE DETERMINED ON THE FACTS OF EACH P ARTICULAR CASE. IN FACT, THE APEX COURT HELD AS FOLLOWS: 35 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 . WHAT IS REALLY REQUIRED TO BE SHOWN IS THE CON NECTION WITH AN AGRICULTURAL PURPOSE AND USER AND NOT THE M ERE POSSIBILITY OF USER OF LAND, BY SOME POSSIBLE FUTUR E OWNER OR POSSESSOR, FOR AN AGRICULTURAL PURPOSE. IT IS NOT THE MERE POTENTIALITY, WHICH WILL ONLY AFFECT ITS VALUATION AS PART OF ASSETS, BUT ITS ACTUAL CONDITION AND INTENDED USE R WHICH HAS TO BE SEEN FOR PURPOSES OF EXEMPTION FROM WEALTH-TA X. IN VIEW OF THE ABOVE JUDGMENT OF THE APEX COURT THE RE SHOULD BE AN CONNECTION TO INDICATE THE INTENTION OF THE OWNERS OR POSSESSORS SO AS TO CONNECT WITH AGRICULTURAL PURPOSE IN RESPECT OF THE LAND. THE ENTRIES IN THE REVENUE RECORD ARE PRIMA FACIE EVIDENCE TO INDICATE THAT THE LAND IN QUESTION IS AGRICULTURAL LAND. 19. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISI ONS OF SECTION 10(37) OF THE ACT WHICH READS AS FOLLOWS: 10(37) IN THE CASE OF AN ASSESSEE, BEING AN INDIVID UAL OR A HINDU UNDIVIDED FAMILY, ANY INCOME CHARGEABLE UND ER THE HEAD CAPITAL GAINS ARISING FROM THE TRANSFER OF A GRICULTURAL LAND, WHERE 36 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (I) SUCH LAND IS SITUATED IN ANY AREA REFERRED TO I N ITEM (A) OR ITEM (B) OF SUB-CLAUSE (III) OF CLAUSE (14) OF SECTION 2; (II) SUCH LAND, DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER, WAS BEING USED FOR AGRICULTURAL PURPOSE BY SUCH HINDU UNDIVIDED FAMILY OR INDIVIDUAL OR A PARENT OF HIS; (III) SUCH TRANSFER IS BY WAY OF COMPULSORY ACQUISI TION UNDER ANY LAW, OR A TRANSFER THE CONSIDERATION FOR WHICH IS DETERMINED OR APPROVED BY THE CENTRAL GOVERNMENT OR THE RESERVE BANK OF INDIA; (IV) SUCH INCOME HAS ARISEN FROM THE COMPENSATION O R CONSIDERATION FOR SUCH TRANSFER RECEIVED BY SUCH ASSESSEE ON OR AFTER THE 1 ST DAY OF APRIL, 2004. EXPLANATION.- FOR THE PURPOSES OF THIS CLAUSE, THE EXPRESSION COMPENSATION OR CONSIDERATION INCLUDES THE COMPENSATION OR CONSIDERATION ENHANCED OR FURTH ER ENHANCED BY ANY COURT, TRIBUNAL OR OTHER AUTHORITY; SECTION 10(37) WAS INTRODUCED FOR THE FIRST TIME IN THE STATUTE BOOK BY FINANCE ACT, 2004 WITH EFFECT FROM 01-04-2005. SEC TION 10(37) EXCLUDES THE CAPITAL GAIN ARISING FROM TRANSFER OF AGRICULTU RAL LAND WHICH WAS BEING USED FOR AGRICULTURAL PURPOSE IMMEDIATELY TWO PRECE DING YEARS. IN VIEW OF SECTION 10(37) TRANSFER OF AGRICULTURAL LAND WHICH IS SITUATED WITHIN THE 37 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 JURISDICTION OF MUNICIPALITY ARE EXCLUDED FROM CAPI TAL GAIN TAX PROVIDED SUCH LAND IS USED FOR AGRICULTURAL PURPOSE DURING THE PE RIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. HOWEVE R, THIS CONDITION OR REQUIREMENT OF USING THE LAND FOR AGRICULTURAL PURP OSE DURING THE TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER WAS NOT PROVIDED IN RESPECT OF AGRICULTURAL LAND WHICH SITUATE OUTSIDE THE JURISDI CTION OF THE MUNICIPAL LIMITS IN SECTION 2(14) OF THE ACT. SECTION 10(37) WAS IN TRODUCED IN THE STATUTE BOOK TO MITIGATE THE HARDSHIP FACED BY THE LAND OWN ERS WITHIN THE SPECIFIED URBAN AREA. IN THE MEMORANDUM EXPLAINING THE PROVI SIONS OF THE FINANCE BILL, IT HAS BEEN CLEARLY STATED THAT SECTION 10(3 7) WAS INTRODUCED WITH A VIEW TO MITIGATE THE HARDSHIP FACED BY THE FARMERS WHOSE AGRICULTURAL LAND SITUATE IN SPECIFIED URBAN LIMIT HAS BEEN COMPULSOR ILY ACQUIRED. THEREFORE, IN RESPECT OF THE AGRICULTURAL LAND WHICH WAS USED FOR AGRICULTURAL PURPOSE DURING THE TWO YEARS IMMEDIATELY PRECEDING THE DATE OF COMPULSORILY ACQUITION UNDER ANY LAW OR TRANSFER FOR A CONSIDERA TION WHICH WAS DETERMINED OR APPROVED BY CENTRAL GOVERNMENT OR RES ERVE BANK OF INDIA, THEN SUCH CAPITAL GAIN WOULD NOT FORM PART OF THE T OTAL INCOME OF THE ASSESSEE. 38 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 20. SIMILARLY, SECTION 54B ALSO REQUIRES THE ASSESS EE WHO CLAIMS EXEMPTION TO USE THE LAND FOR AGRICULTURAL PURPOSE FOR TWO YEAR IMMEDIATELY PRECEDING THE DATE OF TRANSFER. HOWEVER, SUCH REQU IREMENT OF USE OF AND FOR AGRICULTURAL PURPOSE FOR TWO YEARS IMMEDIATELY PRECEDING THE TRANSFER IS EXPRESSLY OMITTED BY THE PARLIAMENT IN SECTION 2(14 ) OF THE ACT. IT IS WELL SETTLED PRINCIPLES OF LAW THAT A TAXING STATUTE SHO ULD BE STRICTLY INTERPRETED OR CONSTRUED. EQUITY, LOGIC, ETHIC AND MORALITY HA VE NO ROLE TO PLAY IN INTERPRETATION OF TAXING STATUTE. IT IS ALSO WELL SETTLED THAT NOTHING COULD BE IMPLIED AND PLAIN LANGUAGE USED BY THE PARLIAMENT H AS TO BE READ AS SUCH. IN FACT, THE APEX COURT IN ASST.DIRECTOR OF INSPECT ION VS KUM. A.B. SHANTHI (2002) 255 ITR 258 (SC) AFTER REFERRING TO ITS EARL IER JUDGMENT IN EAST INDIA TOBACCO CO VS STATE OF ANDHRA PRADESH (1962) AIR 19 62 SC 1733 FOUND THAT PARLIAMENT HAS POWER TO PICK AND CHOOSE DISTRI CTS, OBJECTS, PERSONS, METHODS AND EVEN RATE FOR TAXATION IF IT DOES SO RE ASONABLY. BY APPLYING THE ABOVE PRINCIPLE LAID DOWN BY APEX COURT, SECTIO N 2(14) HAS TO BE INTERPRETED STRICTLY. THEREFORE, THE REQUIREMENT U SING THE LAND FOR TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER CANNOT B E A PRE-CONDITION FOR THE PURPOSE OF SECTION 2(14) OF THE ACT. HENCE, TH E JUDGMENT OF THE KERALA HIGH COURT IN SMT. ASHA GEORGE (SUPRA) WHICH DEALS WITH SECTION 54B AND 39 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 54F MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHAT IS REQUIRED FOR SECTIO N 2(14) IS CONNECTION WITH AGRICULTURAL PURPOSE. 21. THE NEXT QUESTION THAT WOULD FOLLOW IS THAT WHE THER THE SUBJECT LAND HAS ANY CONNECTION WITH AGRICULTURAL PURPOSE AND WH ETHER IT IS USED FOR AGRICULTURAL PURPOSE? THE ASSESSEE CLAIMS THAT THE STATE GOVERNMENT HAS NOT MAINTAINED ANY RECORDS FOR CULTIVATION OF THE L ANDED PROPERTIES EXCEPT CLASSIFICATION OF THE LAND AS WETLAND, RESIDENTIAL LAND, ETC. THE ASSESSEE ALSO CLAIMS THAT THE GOVERNMENT IS COLLECTING AGRIC ULTURAL WORKERS WELFARE FUND FROM THE LAND OWNERS WHO CULTIVATED THE LAND. THE BASIC TAX REGISTER PREPARED BY THE VILLAGE ADMINISTRATIVE OFFICER FOR COLLECTION OF TAX ALSO SHOWS THAT THE LAND IS AN AGRICULTURAL LAND. THE V ILLAGE ADMINISTRATIVE OFFICER OFFICER CERTIFIES THAT THE LAND IN QUESTION WAS A PADDY FIELD EARLIER AND SOME OF THE LANDS WERE FILLED IN SUBSEQUENTLY A ND THEY HAVE CULTIVATED BANANA AND GINGER. IN ONE APPEAL, THE LAND WAS ACQ UIRED BY THE GOVERNMENT IMMEDIATELY AFTER FILLING UP FOR THE PUR POSE OF CULTIVATING THE OTHER CROPS, VIZ. BANANA AND GINGER. THEREFORE, TH E MATERIAL NOW AVAILABLE 40 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ON RECORD TO PROVE THE USAGE OF LAND FOR AGRICULTUR AL PURPOSE OR CONNECTION WITH AGRICULTURAL PURPOSE ARE (I) THE CERTIFICATE ISSUED BY THE VILLAGE ADMINIS TRATIVE OFFICER; (II) THE CERTIFICATE ISSUED BY THE AGRICULTURAL O FFICER; (III) CLASSIFICATION OF LAND BY THE STATE GOVERNM ENT AS AGRICULTURAL LAND; (IV) RECEIPT FOR PAYMENT OF CONTRIBUTION TO AGRIC ULTURAL WORKERS WELFARE FUND; AND (V) BASIC TAX REGISTER. 22. BEFORE INDEPENDENCE, LAND WHICH WAS UNDER THE D IRECT CONTROL OF THE BRITISH RULE / ADMINISTRATION, MORE PARTICUL ARLY, THE LAND WHICH FALLS WITHIN THE JURISDICTION OF ERSTWHILE MADRAS P ROVINCE, THE BRITISH RULERS PRESCRIBED PROCEDURE METHOD AND FORMS FOR TA KING CULTIVATION ACCOUNTS. AS PER THE PROCEDURE PRESCRIBED BY THE B RITISH RULERS IN THE REVENUE BOARDS STANDING ORDERS, THE VILLAGE OF FICER HAS TO VISIT EVERY AGRICULTURAL LAND AND TAKE NOTE OF THE CULTIV ATION MADE, STANDING TREES, SOURCE OF IRRIGATION, ETC. ONCE IN SIX MONTHS. THE CULTIVATION AND OTHER DETAILS HAD TO BE RECORDED IN VILLAGE ACCOUNT NO.2 WHICH WOULD OTHERWISE KNOWN AS ADANGAL. APART FROM THIS, THE 41 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 VILLAGE OFFICER HAS TO MAINTAIN OTHER RECORDS FOR C OLLECTING LAND REVENUE, WATER CESS, IRRIGATION TAX, ETC. THE ENTR Y MADE BY VILLAGE OFFICER HAS TO BE VERIFIED BY TAHSILDAR OR ANY OFFI CER FROM THE TAHSILDAR OFFICE. THE VERY SAME METHOD OF TAKING C ULTIVATION ACCOUNT ONCE IN SIX MONTHS WAS FOLLOWED BY THE STATE GOVERN MENTS AFTER INDEPENDENCE. KEEPING THIS METHOD FOLLOWED BY BRIT ISH RULERS IN MIND, THIS TRIBUNAL WAS OF THE OPINION THAT SOME KI ND OF MATERIAL WOULD BE AVAILABLE WITH THE STATE GOVERNMENT WITH R EGARD TO THE CULTIVATION MADE BY THE RESPECTIVE OWNERS / POSSESS ORS OF THE LAND WHICH IS IN QUESTION NOW. 23. WE ARE CONSCIOUS THAT COCHIN IS AN INDEPENDENT PRINCELY STATE UNDER THE DIRECT ADMINISTRATION OF COCHIN MAHARAJA DURING BRITISH RULE. THEREFORE, THE FORMS AND RULES PRESCRIBED BY BRITIS H AUTHORITIES BEFORE INDEPENDENCE OF INDIA MAY NOT HAVE BEEN FOLLOWED IN THE PRINCELY STATE OF COCHIN. HOWEVER, THE PRINCELY STATE OF COCHIN IS T HE FIRST STATE WHO WILLINGLY JOINED ITSELF WITH THE INDEPENDENT INDIA. AFTER IN DEPENDENCE GOVERNMENT OF INDIA IS TAKING STATISTICAL REPORT ABOUT THE FOO D PRODUCTION IN THE COUNTRY INCLUDING THE STATE OF KERALA AND PROJECTING THE ST ATISTICAL FIGURE WITH REGARD 42 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 TO ANTICIPATED FOOD PRODUCTION, ANTICIPATED DEMAND AND WHETHER THE FOOD PRODUCTION WOULD BE SHORT OR EXCESS. THEREFORE, IN THE STATE OF KERALA ALSO EVEN THOUGH THE SUBJECT LAND WAS SITUATED IN THE ER STWHILE PRINCELY STATE OF COCHIN, SOME KIND OF RECORDS SHOULD BE AVAILABLE WI TH STATE GOVERNMENT ATLEAST AFTER INDEPENDENCE FOR CULTIVATION. THEREF ORE, WE CALLED FOR A REMAND REPORT DIRECTING THE ASSESSING OFFICER TO EX AMINE THE CONCERNED VILLAGE ADMINISTRATIVE OFFICER, TAHSILDAR, AGRICULT URAL OFFICER AND ANY RESPONSIBLE OFFICER IN THE COLLECTORATE. FOR THE P URPOSE OF CONVENIENCE, WE ARE REPRODUCING THE ORDER OF THE TRIBUNAL CALLING F OR THE REMAND REPORT BELOW: I.T.A. NO.311/COCH/2011 ASSESSMENT YEAR 2007-08 DY.CIT, CIR.2(2), ERNAKULAM VS SHRI M.J. THOMAS, MUKKADAYIL HOUSE ST. VINCENT ROAD, ERNAKULAM 08-10-2013 THE ASSESSEE CLAIMS THAT HE WAS CULTIVATING 4.448 ACRES OF LAND AT KAKKANAD WHICH WAS COMPULSOR ILY ACQUIRED BY GOVERNMENT FOR KINFRA SMART CITY PROJEC T. 43 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ACCORDING TO THE ASSESSEE, WHILE PAYING THE COMPENS ATION FOR LAND ACQUISITION, THE DISTRICT COLLECTOR HAS NOT DE DUCTED ANY TAX AT SOURCE SINCE IT WAS AGRICULTURAL LAND. ACCO RDING TO THE ASSESSEE, THE LAND AT KAKKANAD, WHICH IS SUBJECT MA TTER OF APPEAL IS USED FOR CULTIVATION OF BANANA, GINGER, E TC. AND THE ASSESSEE ALSO RETURNED AGRICULTURAL INCOME REGULARL Y. THE ASSESSEE HAS ALSO PRODUCED THE CERTIFICATE FROM THE VILLAGE OFFICER TO SUPPORT THE CLAIM THAT THE LAND IN QUEST ION WAS CULTIVATED BEFORE ACQUISITION. ON A QUERY FROM THE BENCH WHETHER THE STATE GOVERNMENT IS MAINTAINING ANY REC ORD FOR CULTIVATION OF LAND, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE STATE GOVERNMENT IS NOT MAINTAIN ING ANY RECORD FOR CULTIVATION OF THE LAND. THE DR ALSO SA YS NO RECORDS WERE FOUND TO BE MAINTAINED BY THE STATE GOVERNMENT FOR CULTIVATION OF LAND. THIS TRIBUNAL IS OF THE CONSI DERED OPINION THAT THE STATE GOVERNMENT THROUGH THE REVENUE DEPAR TMENT IS MAINTAINING CULTIVATION ACCOUNT. IN FACT, THE VILL AGE OFFICER HAS TO RECORD THE CULTIVATION IN THE RESPECTIVE ACCOUNT IN THE FORM PRESCRIBED BY THE STATE GOVERNMENT. THE ACCOUNTS P REPARED BY THE VILLAGE OFFICER HAVE TO BE VERIFIED BY A HIG HER AUTHORITY AT THE TALUK LEVEL. THEN THERE WILL BE A STATISTIC AL COMMITTEE AT THE TALUK LEVEL TO EXAMINE THE FOOD PRODUCTION OF T HE TALUK. THE STATISTICAL COMMITTEE AT TALUK LEVEL WILL CONSO LIDATE ALL THE REPORTS RECEIVED FROM THE RESPECTIVE VILLAGE OFFICE RS AND THEN FORWARD THE SAME TO THE DISTRICT COLLECTOR. THE ST ATISTICAL 44 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 COMMITTEE IN THE DISTRICT HEADED BY THE DISTRICT CO LLECTOR WOULD EXAMINE THE DETAILS COLLECTED BY THE TALUK OF FICE AND WILL CONSOLIDATE THE EXPECTED FOOD PRODUCTION OF THE DIS TRICT AND THE SAME WOULD BE FORWARDED TO THE STATE GOVERNMENT . THE STATE GOVERNMENT, AFTER CONSOLIDATING ALL THE REPOR TS RECEIVED FROM THE RESPECTIVE DISTRICT COLLECTOR WOULD FORWAR D THE FOOD PRODUCTION ESTIMATE TO THE CENTRAL GOVERNMENT. THE CENTRAL GOVERNMENT, IN TURN, CONSOLIDATES ALL THE REPORTS R ECEIVED FROM THE RESPECTIVE STATE GOVERNMENT AND ESTIMATE THE FO OD PRODUCTION FOR THE YEAR. WHEN THIS IS THE PATTERN OF ADMINISTRATION IN THIS COUNTRY, IT IS NOT KNOWN HOW THE GOVERNMENT IN THE STATE OF KERALA IS NOT MAINTAININ G ANY RECORDS FOR CULTIVATION OF LAND. IF NO RECORD IS M AINTAINED FOR CULTIVATION OF THE LANDS THEN THE FOOD PRODUCTION I N KERALA CANNOT BE ESTIMATED. IN THAT CASE, THE STATISTICAL FIGURE PROJECTED BY THE GOVERNMENT OF INDIA FOR FOOD PRODU CTION IN THE COUNTRY MAY NOT INCLUDE THE FOOD PRODUCTION FIG URE OF KERALA STATE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CENTRAL GOVERNMENT WILL NEVER EXCLUDE THE EXPEC TED FOOD PRODUCTION OF KERALA WHILE ESTIMATING THE FOOD PROD UCTION OF THE COUNTRY AS A WHOLE. THEREFORE, SOME KIND OF MA TERIAL WOULD BE PREPARED AT THE TALUK LEVEL TO RECORD THE CULTIVATION OF THE LANDS. 45 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 2. SINCE THE DETAILS ARE NOT FORTHCOMING EITHER FRO M THE ASSESSEE OR FROM THE DEPARTMENT, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT THE EXAMINATION OF THE RESP ECTIVE VILLAGE OFFICER AND THE TAHSILDAR WITH REGARD TO RE CORDS MAINTAINED BY THE STATE GOVERNMENT FOR CULTIVATION OF LAND WOULD THROW SOME LIGHT FOR EFFECTIVE DISPOSAL OF TH IS APPEAL. THEREFORE, THE ASSESSING OFFICER IS HEREBY DIRECTED TO SUMMON THE VILLAGE OFFICER, KAKKANAD VILLAGE AND THE CONCE RNED TAHSILDAR IN PERSON AND EXAMINE THEM IN RESPECT OF THE FOLLOWING ASPECT: (1) WHETHER THE VILLAGE OFFICER AND THE TAHSILDAR A RE MAINTAINING ANY RECORDS FOR CULTIVATION OF LAND IN THEIR JURISDICTION? IF THAT IS SO, WHAT KIND OF RECORDS ARE MAINTAINED AND THE COPIES OF THE RESPECTIVE RECORDS / ACCOUNTS FROM THE FINANCIAL YEARS 2003 TO 2008 SHALL BE OBTAINED BY T HE ASSESSING OFFICER FOR THE LAND WHICH IS SUBJECT MAT TER OF APPEAL BEFORE THIS TRIBUNAL? (2) IN CASE, NO RECORDS ARE MAINTAINED FOR CULTIVAT ION OF LAND, THEN ASCERTAIN HOW THE STATISTICAL REPORT WIT H REGARD TO ESTIMATION OF THE FOOD PRODUCTION OF THE TALUK IS P REPARED. (3) WHAT ARE THE BASIC DOCUMENTS WHICH ARE CONSIDER ED FOR ESTIMATION OF THE FOOD PRODUCTION OF THE TALUK WHIL E SENDING THE STATISTICAL REPORT TO THE DISTRICT COLLECTOR. 46 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 (4) IN CASE, THE TAHSILDAR AND VILLAGE OFFICER COUL D NOT EXPLAIN THE MATTER IT IS OPEN TO THE ASSESSING OFFI CER TO SUMMON SOME RESPONSIBLE OFFICER FROM THE DISTRICT C OLLECTORS OFFICE, WHO IS IN-CHARGE OF THE REVENUE ADMINISTRAT ION INCLUDING THE CONCERNED AGRICULTURAL OFFICER TO FIND OUT THE ACTUAL RECORD WHICH IS MAINTAINED BY THE STATE GOVERNMENT FOR CUL TIVATION OF LAND IN THE STATE OF KERALA. (5) THE ASSESSING OFFICER SHALL ALSO ASCERTAIN FROM THE VILLAGE OFFICER AND TAHSILDAR WITH REGARD TO CULTIV ATION SAID TO BE CARRIED OUT BY THE ASSESSEE AND THE NATURE OF CR OP CULTIVATED ON THE LAND WHICH IS SUBJECT MATTER OF A PPEAL. THE EXAMINATION SHALL BE MADE IN THE PRESENCE OF THE AS SESSEE OR HIS REPRESENTATIVE AND AN OPPORTUNITY TO CROSS EXAM INE MAY BE GIVEN IF THE ASSESSEE SO DESIRES. IN CASE THE A SSESSEE FAILS TO APPEAR AFTER RECEIVING NOTICE FROM THE ASS ESSING OFFICER ON THE DATE OF EXAMINATION, THE EXAMINATION MAY BE MADE IN THE ABSENCE OF THE ASSESSEE. THE ASSESSING OFFICER, AFTER EXAMINATION OF THE RESPECTIVE PERSONS AS STATED ABO VE, SHALL FILE HIS REPORT ALONG WITH THE COPIES OF THE STATEM ENT RECORDED INCLUDING THE DOCUMENTS, IF ANY, OBTAINED FROM THE RESPECTIVE OFFICERS BEFORE THIS TRIBUNAL ON OR BEFORE 29-11-20 13 AFTER SERVING A COPY OF THE REPORT TO THE ASSESSEE. IF T HE ASSESSEE INTENDS TO FILE OBJECTION TO THE REPORT FILED BY TH E ASSESSING 47 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 OFFICER, HE MAY DO SO ON OR BEFORE 06-12-2013. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR FURTHER HEARING ON 09-12-2013. 3. THE REGISTRY IS FURTHER DIRECTED TO FORWARD THE COPY OF THIS ORDER TO THE ASSESSING OFFICER AND THE ASSESSE E. SD/- SD/- ACCOUNTANT MEMBER JUDICIAL MEMBER 24. IN PURSUANCE TO THE REMAND REPORT, THE ASSESSIN G OFFICER EXAMINED THE VILLAGE ADMINISTRATIVE OFFICER, KAKKANAD, ADDIT IONAL TAHSILDAR AND AGRICULTURAL OFFICER. FOR THE PURPOSE OF CONVENIEN CE, WE ARE REPRODUCING REMAND REPORT FILED BY THE ASSESSING OFFICER BEFORE THIS TRIBUNAL: NO.REMAND REPORT/C-2(2)/2013-14 DATED:29-11-2013 TO THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN SIR SUB: CALLING FOR REMAND REPORT IN THE CASE OF S RI M.J. THOMAS FOR THE ASST.YEAR 2007-08 REG. REF: ITA NO.311/COCH/2011 DATED 08/10/2013 ********** 48 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 KINDLY REFER TO THE ABOVE. A REMAND REPORT HAS BEEN CALLED FOR BY THE HONBLE ITAT IN THE CASE OF SRI M.J. THOMAS FOR THE ASST.YE AR 2007-08 TO CARRY OUT NECESSARY VERIFICATION REGARDING MAINT ENANCE OF RECORDS FOR CULTIVATION OF AND BY THE STATE GOVT. O F KERALA. THE HONBLE ITAT DIRECTED THE ASSESSING OFFICER TO SUMM ON THE VILLAGE OFFICER, KAKKANAD VILLAGE AND THE CONCERNED TAHSILDAR IN PERSON AND EXAMINE THEM IN RESPECT OF THE FOLLOW ING ASPECT: (1) WHETHER THE VILLAGE OFFICER AND TAHSILDAR ARE M AINTAINING ANY RECORDS FOR CULTIVATION OF LAND IN THEIR JURISD ICTION? IF THAT IS SO, WHAT KIND OF RECORDS ARE MAINTAINED AND THE COPIES OF THE RESPECTIVE RECORDS / ACCOUNTS FROM TH E FINANCIAL YEARS 2003 TO 2008 SHALL BE OBTAINED BY T HE AO. (2) IN CASE, NO RECORDS ARE MAINTAINED FOR CULTIVAT ION OF LAND, THEN HOW THE STATISTICAL REPORT WITH REGARD TO ESTI MATION OF THE FOOD PRODUCTION OF THE TALUK IS PREPARED. (3) WHAT ARE THE BASIC DOCUMENTS WHICH ARE CONSIDER ED FOR ESTIMATION OF THE FOOD PRODUCTION OF THE TALUK WHIL E SENDING THE STATISTICAL REPORT TO THE DISTRICT COLLECTOR. ACCORDINGLY, ON THE BASIS OF THE INFORMATION AND DOCUMENTS PROVIDED BY THE AUTHORITY CONCERNED, THE REMAND REPORT IS SUBMITTED AS FOLLOWS: 1. THE VILLAGE OFFICER, THE ADDITIONAL TAHSILDAR AN D THE PRINCIPAL AGRICULTURAL OFFICER WERE SUMMONED AND NO NE OF 49 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 THESE PEOPLE COULD SHED ANY LIGHT WHETHER THE PARTI CULAR PIECE OF LAND IN QUESTION HAS BEEN CULTIVATED OR NO T. 2. THE CONCERNED VILLAGE OFFICER AND THE ADDITIONAL TAHSILDAR APPEARED BEFORE ME AND DEPOSED THAT NO RECORDS ARE MAINTAINED AT THEIR LEVEL. IT IS MAINTAINED AT THE LEVEL OF AGRICULTURAL OFFICER WHO OPERATES IN INDIVIDUAL PAN CHAYAT AT THE KRISH BHAVAN AND ARE RESPONSIBLE FOR IMPLEMENTA TION OF THE CENTRALLY SPONSORED, STATE GOVT. AND GRAM PANCH AYAT SCHEME ON AGRICULTURE AND IS HEADED BY PRINCIPAL AGRICULTURAL OFFICER AT THE DISTRICT LEVEL. 3. THE DDITIONAL TAHSILDAR AS WELL AS THE VILLAGE O FFICER DEPOSED THAT THE ONLY REGISTER AVAILABLE IN THIS RE GARD IN THEIR OFFICES IS THE KERALA AGRICULTURAL WORKERS WE LFARE FUND (KAWWF) REGISTER IN WHICH THE LEVY CAST UPON T HE LAND OWNERS ARE RECORDED. FURTHER, THEY ELABORATED THAT THIS IS A LEVY COLLECTED FROM LAND OWNERS ON BEHALF OF AGRICULTURE LABOURERS BY THE STATE, UNDER THE STATU TE KAWWF ACT. THIS IS COLLECTED AT THE RATE OF RS.15. 00 PER ANNUM FROM LAND OWNERS WHO OWN MORE THAN 50 ARES AN D LESS THAN 100 ARES OF LAND, AND RS.20.00 PER ANNUM FROM LAND OWNERS WHO OWN MORE THAN 100 ARES OF AND. AN ATTEMPT WAS MADE BY THE ASSESSEE TO EQUATE THIS LEV Y WITH AGRICULTURISTS AS IT IS A LEVY COLLECTED ON BEHALF OF AGRICULTURAL LABOURERS. HOWEVER BOTH THE VILLAGE O FFICER AND THE ADDITIONAL TAHSILDAR CATEGORICALLY STATED T HAT IT IS 50 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 COLLECTED IN A ROUTINE MANNER FROM ALL THE LAND OWN ERS WHO OWN MORE THAN A THRESHOLD LIMIT AND NOT RESTRICTED TO AGRICULTURISTS ALONE AND ALSO THAT THIS LEVY HAS NO T BEEN COLLECTED SINCE 31.03.2005 IN KAKKANAD VILLAGE. 4. THE VILLAGE OFFICER DEPOSED THAT HE MAINTAINS NO REGISTER EXCEPT FOR BASIC TAX REGISTER (BTR) AND KERALA AGRICULTURAL WORKERS WELFARE FUND (KAWWF). BTR REC ORDS THE BASIC CHARACTER OF LAND AS NILAM OR PURAYIDO M WHICH IS WET LAND AND DRY LAND RESPECTIVELY. THE WET LAND CAN BE AGRICULTURAL LAND WHICH IS PADDY OR OTHERWISE ND ALL OTHER LANDS WHICH ARE EITHER WATER LOGGED OR LIKELY TO BE WATER LOGGED AT SOME POINT OF TIME IN AN YEAR AND ALSO FA LLOW LAND AND ALSO THAT THEY HAD NO MEANS OF ASCERTAINING WHE THER THIS PARTICULAR PIECE OF LAND WAS FALLOW, CULTIVABL E OR CULTIVATED. 5. THE PRINCIPAL AGRICULTURAL OFFICER ON BEING QUES TIONED DEPOSED THAT SHE ALSO DOES NOT HAVE ANY RECORD IN H ER OFFICE OR AT THE OFFICE OF HER SUBORDINATES TO ASCE RTAIN WHETHER A PARTICULAR PIECE OF LAND WAS CULTIVATED O R NOT. HOWEVER SHE DEPOSED THAT A CERTIFICATE IS ALWAYS GR ANTED BY THE AGRICULTURAL OFFICER OF THE PANCHAYAT FOR U TILIZATION OF LAND AFTER DUE INSPECTION OF PROPERTY. SINCE THE A GRICULTURAL OFFICER SAID THAT AN INSPECTION IS ALWAYS ONE BEFOR E ISSUING, THE CERTIFICATE AVAILABLE IN OUR RECORD, ISSUED BY THE THEN AGRICULTURAL OFFICER ON 04/10/2009, WAS SHOWN AND S HE WAS 51 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 ASKED TO EXPRESS HER OPINION ON IT. SHE REPLIED TH AT THE AGRICULTURAL OFFICER HAD TERMED THE LAND AS CULTIV ABLE BUT LEFT FALLOW. SHE WAS ASKED TO EXPLAIN FALLOW LAND DURING CROSS EXAMINATION AGAINST WHICH SHE REPLIED ANY LAN D CULTIVABLE BUT NOT CULTIVATED FOR THE LAST 10-15 YE ARS CAN BE TERMED AS FALLOW LAND. AND DURING RE-EXAMINATION S HE EXPLAINED FURTHER THAT THE LAND NEED NOT BE CULTIVA TED AT ALL TO BE TERMED AS FOLLOW. 6. BTR IS A FUNDAMENTAL REGISTER AVAILABLE IN THE O FFICE OF AGRICULTURAL OFFICER. THERE IS A FARMERS REGISTER INTRODUCED SINCE 2012 WHEREIN THE FARMERS ARE REGISTERED ALONG WITH THEIR DETAILS WHICH ALSO CONTRIBUTES TO THE ESTIMAT ION OF FOOD PRODUCTION OF THE DISTRICT. 7. THE AGRICULTURAL OFFICER ALSO DO NOT HAVE RECORD S OF CULTIVATION OF INDIVIDUAL PROPERTIES, BUT HAS RECOR DS OF PADASHEGHRAMS (COLLECTION OF PADDY FIELDS) AND OTH ER PROPERTIES. THE EXTENT OF PADASHEGHARAMS ARE ARRI VED AT AND YIELD IS MULTIPLIED TO REACH THE FOOD PRODUCTIO N OF THE DISTRICT. 8. HENCE, MY CONCLUSION IS THAT, ON THE BASIS OF AV AILABLE RECORDS AND CERTIFICATES THE LAND IN QUESTION IS FA LLOW LAND, NOT CULTIVATED FOR A LONG TIME ATLEAST FOR A PERIOD OF 10-15 YEARS, BOUGHT AND LEFT FALLOW IN ANTICIPATION OF RI SE IN PRICES DUE TO URBANIZATION AND LAND PRICE BOOM WHICH WAS T AKING PLACE DURING THE PERIOD IN QUESTION. THE ASSESSEE IS NOT 52 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 AN AGRICULTURIST BY PROFESSION AND THE ASSESSEE HAS NOT INDULGED IN AGRICULTURE PRACTICES OR AGRICULTURE BE FORE OR AFTER THE PURCHASE AND ACQUISITION. THUS, THE CIRCUMSTANTIAL EVIDENCES TOO ALONG WITH AVAILABLE DOCUMENTS AND EVIDENCES, ARE AGAINST THE ASSESSEES CLAIM OF THE SAID PIECE OF LAND BEING AN AGRICULTUR E LAND. 9. HENCE, ON THE BASIS OF MY INVESTIGATION IN THE M ATTER, I RECOMMEND THAT THE SAID PIECE OF LAND LYING IN SY.NOS.645/4, 646/4, 646/5 & 646/6 AND 647/1 AMOUNT ING TO TOTAL AREA OF 173.08 ARES MAY BE CONSIDERED AS A LLOW LAND, NOT CULTIVATED AND NOT AGRICULTURAL LAND. YOURS FAITHFULLY, SD/- (V. SRIVIJAY) ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-2(2), KOCHI ENCLS: 1. COPY OF THE REPLY OF THE PRINCIPAL AGRICULTURAL OFFICER, ERNAKULAM 2. COPY OF THE REPLY OF THE ADDITIONAL TAHSILDAR, K ANAYANNUR TALUK. 3. COPY OF THE STATEMENT RECORDED FROM THE PRINCIPA L AGRICULTURAL OFFICER, ADDITIONAL TAHSILDAR AND VILLAGE OFFICER. 4. COPY OF THE LEVY COLLECTION REPORT OF KERALA AGR ICULTURAL LABOURER WELFARE BOARD. 53 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 25. IN ORDER TO GIVE AN OPPORTUNITY TO ALL THE ASSE SSEES COPIES OF THE REMAND REPORT ALONGWITH ITS ENCLOSURES WERE FURNISH ED TO ALL THE ASSESSEES. THE ASSESSEE IN THE CASE OF SHRI M.J. T HOMAS HAS FILED HIS OBJECTIONS / REPLY. IN RESPECT OF ALL OTHER ASSESS EES THEY HAVE NOT FILED ANY REPLY. ON A QUERY FROM THE BENCH, WHY THEY COULD N OT FILED THEIR REPLY / OBJECTION, THEY SIMPLY SAID THAT THE REMAND REPORT FILED BY THE ASSESSING OFFICER IS NOT AGAINST THE ASSESSEES AND THE ASSESS ING OFFICER HAS CLARIFIED THAT NO RECORDS ARE MAINTAINED BY THE STATE GOVERNM ENT FOR THE PURPOSE OF CULTIVATION. THEREFORE, THE EFFORT TAKEN BY THIS T RIBUNAL TO FIND OUT THE RECORDS MAINTAINED BY THE STATE GOVERNMENT HAS ENDE D IN VAIN. 26. NOW THE QUESTION ARISES FOR CONSIDERATION IS IN THE ABSENCE OF RECORDS MAINTAINED BY THE STATE GOVERNMENT FOR CULT IVATION WHETHER THE MATERIAL FILED BY THE ASSESSEES WOULD BE SUFFICIENT TO PROVE TO SHOW THAT THE ASSESSEES WERE USING THE LAND FOR AGRICULTURAL PURPOSE / AND THE LAND IN QUESTION HAS ANY CONNECTION WITH AGRICULTURAL PU RPOSE. ALL THE ASSESSEES ARE INDIVIDUAL ASSESSEES. AGRICULTURE IN THIS COUNTRY IS UNORGANISED. NORMALLY ILLITERATE CITIZENS OF THIS COUNTRY ARE ENGAGED IN AGRICULTURAL ACTIVITIES. THOUGH THE RESPECTIVE STA TE GOVERNMENTS ARE TAKING 54 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 STEPS TO SELL THE AGRICULTURAL PRODUCE IN THE MARKE TS, STILL, THE SALE OF AGRICULTURAL PRODUCE IS NOT REGULATED PROPERLY. TH E AGRICULTURAL LABOURERS, WHO ARE ENGAGED FOR CULTIVATION, ARE ALSO ILLITERAT E. IN THOSE CIRCUMSTANCES, EXPECTING MATERIAL EVIDENCES FROM THE AGRICULTURIST S FOR CULTIVATION MAY BE FAR-FETCHED. IN RESPECT OF CORPORATE COMPANIES THA T ARE ENGAGED IN CULTIVATION, MAY MAINTAIN EVIDENCE FOR PURCHASE OF FERTILIZERS, PAYMENT OF WAGES TO LABOURERS AND IN RESPECT OF SALE OF AGRICU LTURAL PRODUCES. HOWEVER, SUCH KIND OF EVIDENCE MAY NOT BE EXPECTED FROM INDIVIDUAL FARMERS SO LONG AS THE GOVERNMENT DOES NOT REGULATE THE CULTIVATION OF LAND AND SALE OF AGRICULTURAL PRODUCE IN THIS COUNTRY. THIS GROUND REALITY CANNOT BE IGNORED BY JUDICIAL AUTHORITIES WHILE ADJUDICATI NG THE DISPUTE WITH REGARD TO CULTIVATION. THEREFORE, THIS TRIBUNAL CANNOT BL AME THE ASSESSEES FOR NOT MAINTAINING RECORDS FOR CULTIVATION. 27. THE STATE GOVERNMENT IS EXPECTED TO MAINTAIN CU LTIVATION ACCOUNT FOR THE PURPOSE OF ESTIMATION OF FOOD PRODUCTION OF THE STATE AND POSSIBLE EXCESS OR DEFICIT IN THE FOOD PRODUCTION SO AS TO M AKE NECESSARY ARRANGEMENT FOR SUPPLY OF FOOD TO THE PEOPLE. IN S PITE OF BEST EFFORTS TAKEN BY THIS TRIBUNAL, NO EVIDENCE IS COMING FORWARD FRO M THE REVENUE TO SHOW 55 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 THAT THE STATE GOVERNMENT WAS MAINTAINING ANY RECOR D. IN FACT, THE ASSESSING OFFICER, AFTER EXAMINING THE VILLAGE ADMI NISTRATIVE OFFICER, ADDITIONAL TAHSILDAR AND AGRICULTURAL OFFICER, FOUN D THAT THE VILLAGE ADMINISTRATIVE OFFICER AND TAHSILDAR ARE NOT MAINTA INING ANY RECORD FOR THE PURPOSE OF CULTIVATION. EVEN THE AGRICULTURAL OFFI CER IS NOT MAINTAINING ANY RECORDS FOR CULTIVATION. THE RECORDS AVAILABLE WIT H THE STATE GOVERNMENT ARE ONLY THE REGISTER FOR COLLECTION OF CONTRIBUTIO N TOWARDS KERALA AGRICULTURAL WORKERS WELFARE FUND, BASIC TAX REGIS TER AND THE CLASSIFICATION OF LAND AS AGRICULTURAL LAND. APART FROM THESE, THERE IS NO OTHER MATERIAL AVAILABLE WITH THE STATE GOVERNMENT. IF THAT IS SO, IT IS NOT KNOWN HOW THE FOOD PRODUCTION OF THE STATE WAS ESTI MATED SO AS TO ENSURE SUFFICIENT SUPPLY OF FOOD TO THE PEOPLE OF THE STAT E. THE FACT REMAINS IS THAT THE REVENUE COULD NOT PRODUCE ANY EVIDENCE FOR CULT IVATION OF LAND MAINTAINED BY GOVERNMENT OF KERALA. FROM THE REMAN D REPORT FILED BY THE ASSESSING OFFICER THE FOOD PRODUCTION OF THE STATE APPEARS TO HAVE BEEN ESTIMATED ON THE BASIS OF THE FARMERS, WHO WERE REG ISTERED ON THE RECORDS OF PADDY FIELD WITHOUT CONSIDERING THE ACTUAL CULTI VATION. THEREFORE, THE STATE GOVERNMENT FOR THE PURPOSE OF FOOD PRODUCTION CONSIDERS THE PADDY FIELDS AND THE AGRICULTURISTS AS A BASIS FOR FOOD P RODUCTION. IN THOSE 56 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 SITUATIONS, THE ASSESSEE HAS PRODUCED CERTIFICATES FROM THE VILLAGE OFFICER TO SHOW THAT THE SUBJECT LANDS WERE UNDER CULTIVATI ON. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF ANY O THER RECORD MAINTAINED BY THE STATE GOVERNMENT FOR CULTIVATION OF THE LAND , THE CERTIFICATE GIVEN BY THE VILLAGE ADMINISTRATIVE OFFICER, WHO IS PERSONAL LY ACQUAINTED WITH THE LAND MAY BE ONE OF THE FACTORS TO BE TAKEN INTO CON SIDERATION. THIS TRIBUNAL CANNOT IGNORE THE CERTIFICATE GIVEN BY THE VILLAGE ADMINISTRATIVE OFFICER ON THE BASIS OF HIS ACQUAINTANCE WITH THE F IELD CERTIFYING THAT THE SUBJECT LANDS WERE SUBJECTED TO CULTIVATION. 28. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE APEX COURT IN THE CASE OF SARIFABIBI MOHMED IBRAHIM AND OTHERS VS CIT (1993) 204 ITR 631 (SC). IN THE CASE BEFORE THE APEX COURT, THE A SSESSEE SOLD A PIECE OF LAND SITUATED WITHIN THE REVENUE LIMITS OF NAVAGAON VILLAGE IN THE MUNICIPAL LIMITS OF SURAT MUNICIPALITY. IN THE YEAR 1967, TH E ASSESSEE AGREED TO SELL THE LAND TO A HOUSING SOCIETY. THE ASSESSEE CLAIME D THE GAIN ON TRANSFER OF SUCH LAND AS EXEMPT U/S 2(14) OF THE ACT. THE A PEX COURT FOUND THAT THE ASSESSEE APPLYING FOR PERMISSION TO SELL THE LA ND FOR NON AGRICULTURAL PURPOSE AND IMMEDIATELY AFTER APPLICATION FOR CONVE RSION OF LAND, THE LAND 57 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 WAS NOT CULTIVATED FOR A PERIOD OF FOUR YEAR. IN TH OSE FACTUAL CIRCUMSTANCES, THE APEX COURT FOUND THAT THE LAND IN QUESTION IS N OT AN AGRICULTURAL LAND. IN THE CASE BEFORE US, THE ASSESSEE HAS NOT APPLIED FO R CONVERSION OF LAND FOR NON AGRICULTURAL PURPOSE. THE LAND IN QUESTION IS CLASSIFIED AS AGRICULTURAL LAND AND THE VILLAGE OFFICER CERTIFIED THAT THE LAN D WAS SUBJECTED TO CULTIVATION. THE ASSESSEE IS CONTRIBUTING TO THE A GRICULTURAL LABOURERS WELFARE FUND AND ALSO PAYING REVENUE TAX AS AGRICUL TURAL LAND WHICH IS EVIDENCE FROM BASIC TAX REGISTER. IN VIEW OF THE M ATERIAL AVAILABLE ON RECORD DISCLOSING THE CULTIVATION OF LAND, THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT JUDGMENT OF THE APEX COURT IN THE CASE OF SARIFABIBI MOHMED IBRAHIM AND OTHERS (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. 29. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMEN T OF THE KERALA HIGH COURT IN THE CASE OF SMT. ASHA GEORGE (SUPRA). IN THE CASE BEFORE THE KERALA HIGH COURT IN THE CASE OF SMT. ASHA GEOR GE (SUPRA), THE QUESTION AROSE FOR CONSIDERATION WAS EXEMPTIONS U/S 54B AND 54F OF THE ACT. ONE OF THE PRE-CONDITIONS FOR GRANT OF EXEMPT IONS U/S 54B AND 54F IS THAT THE LAND SHOULD BE USED FOR CULTIVATION IMMEDI ATELY TWO YEARS BEFORE THE DATE OF TRANSACTION. SUCH A CONDITION IS NOT A VAILABLE FOR TREATING THE 58 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 LAND AS CAPITAL ASSET U/S 2(14) OF THE ACT. THEREF ORE, AS OBSERVED EARLIER, WHAT IS REQUIRED IS THE CONNECTION BETWEEN THE LAND AND THE AGRICULTURAL PURPOSE AND IF THE LAND IS CULTIVATED IN ANY OF THE EARLIER YEARS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LAND HAS TO B E TREATED AS AGRICULTURAL LAND. THE MATERIAL EVIDENCE PRODUCED BY THE ASSESS EES ARE - (I) THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER; (II) CER TIFICATE ISSUED BY THE AGRICULTURAL OFFICER; (III) CLASSIFICATION OF LAND BY STATE GOVERNMENT AS AGRICULTURAL LAND; (IV) RECEIPT FOR PAYMENT OF CONT RIBUTION TO AGRICULTURAL WORKERS WELFARE FUND; AND (V) BASIC TAX REGISTER. FROM THESE MATERIALS, IT APPEARS THAT THE STATE GOVERNMENT HAS CLASSIFIED THE SUBJECT LAND AS AGRICULTURAL LAND. THE GOVERNMENT IS COLLECTING TA X AS AGRICULTURAL LAND WHICH IS EVIDENT FROM THE BASIC TAX REGISTER. THE ASSESSEES ARE ALSO CONTRIBUTING TOWARDS AGRICULTURAL WORKERS WELFARE FUND. THE VILLAGE OFFICER CERTIFIED THAT THE SUBJECT LANDS WERE SUBJE CTED TO CULTIVATION. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE SUBJECT LANDS WERE AGRICULTURAL LANDS BEYOND THE MU NICIPAL LIMITS OR BEYOND 8 KMS RADIUS OF THE NOTIFIED MUNICIPALITY. THEREFO RE, THE SUBJECT LAND CANNOT BE TREATED AS CAPITAL ASSET WITHIN THE MEANI NG OF SECTION 2(14) OF THE ACT; HENCE NOT LIABLE FOR CAPITAL GAIN TAX UNDE R THE INCOME-TAX ACT. 59 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 30. THE REVENUE, IN THE CASES OF JOHN AUGUSTY AND S MT. MARY JOHN POOMKUDY HAS TAKEN ONE MORE GROUND WITH REGARD TO I NTEREST ON FIXED DEPOSITS. 31. SHRI K.K. JOHN, THE LD.DR SUBMITTED THAT THE AS SESSEE, SMT. MARY JOHN POOMKUDY HAS RECEIVED RS.76,87,732 TOWARDS INT EREST ON FIXED DEPOSIT. HOWEVER, THE ASSESSEE HAS DEDUCTED RS. 23 ,43,701 FROM THE TOTAL INTEREST RECEIVED. INA THE CASE OF SHRI JOHN AUGUSTY POOMKUDY, THE ASSESSEE RECEIVED RS. 3,25,06,266 ARE INTEREST AND THE DEDUCTION CLAIMED FROM THAT WAS RS. 2,12,92,818. THE ASSESSING OFFIC ER DISALLOWED THE DEDUCTION MADE BY THE ASSESSEES. ACCORDING TO THE LD.DR, THE ENTIRE INTEREST RECEIVED ON FIXED DEPOSIT SHALL BE TREATED AS INCOME OF THE ASSESSEES. THE LD.DR HAS PLACED HIS RELIANCE ON TH E JUDGMENT OF THE APEX CORT IN THE CASE OF DR. V GOPINATH VS CIT 248 ITR 449 (SC). 32. ON THE CONTRARY, SHRI P.K. SASIDHARAN, THE LD.R EPRESENTATIVE FOR THE ASSESSEES SUBMITTED THAT THE ASSESSEES MADE FIXED D EPOSIT AND RECEIVED INTEREST OF RS.76,87,732 IN THE CASE OF SMT. MARY J OHN POOMKUDY AND RS. 60 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 3,25,06,266 IN THE CASE OF SHRI JOHN AUGUSTY POOMKU DY. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEES BORROWED OVERDRAFT BY PLEDGING THE FIXED DEPOSITS. IF THE FIXED DEPOSIT ACCOUNTS WERE TO BE CLOSED, THE ASSESSEE HAD TO FORGO INTEREST FOR PREMATURE CLOSURE OF THE FIXED DEPOSITS. THEREFORE, ON THE ADVICE OF THE BANKERS, THE ASSESS EE PREFERRED TO TAKE OVERDRAFT AGAINST THE FIXED DEPOSITS. ACCORDINGLY, THE INTEREST PAID ON THE OVERDRAFT FACILITY AVAILED BY THE ASSESSEES WERE DE DUCTED FROM THE INTEREST RECEIVED AND THE NET INTEREST WAS OFFERED FOR TAXAT ION. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEES. 33. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE DEPO SITS WERE MADE FOR THE PURPOSE OF EARNING INTEREST. THEREFORE, THE INTERE ST INCOME ARISING OUT OF THE FIXED DEPOSITS HAS TO BE CLASSIFIED AS INCOME FROM OTHER SOURCES AND IT HAS TO BE ASSESSED ACCORDINGLY. THE ASSESSEES H AVE ALSO AVAILED OVERDRAFT FACILITY ON THE BASIS OF THE FIXED DEPOSI T FOR THE PURPOSE OF BUSINESS. THEREFORE, THE INTEREST PAYABLE BY THE A SSESSEES MAY BE LIABLE FOR DEDUCTION AS BUSINESS EXPENDITURE. HOWEVER, IT CANNOT BE DEDUCTED 61 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 FROM THE INTEREST RECEIVED ON THE FIXED DEPOSITS. THE APEX COURT IN THE CASE OF DR V GOPINATH (SUPRA) CONSIDERED AN IDENTIC AL SITUATION AND FOUND THAT INTEREST PAID UNDER SUCH CIRCUMSTANCES CANNOT BE DEDUCTED FROM THE INTEREST ON THE FIXED DEPOSIT. THEREFORE, THE CIT( A) IS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEES. BY RESPECTFUL LY FOLLOWING THE JUDGMENT OF THE APEX COURT IN THE CASE OF DR V GOPI NATH (SUPRA), THE ORDERS OF THE CIT(A) ON THIS ISSUE ARE SET ASIDE AN D THAT OF THE ASSESSING OFFICER ARE RESTORED. 34. NOW COMING TO THE ASSESSEES APPEAL IN ITA NO.2 24/COCH/2011 IN THE CASE OF SHRI M.J. THOMAS, THE ASSESSEE HAS RAIS ED AN ISSUE WITH REGARD TO COMMISSION. THE ONLY CONTENTION OF THE A SSESSEE IS THAT THE PAYMENT OF COMMISSION WAS DISALLOWED ON THE BASIS O F THE STATEMENT RECORDED FROM THIRD PARTIES. ACCORDING TO THE LD.R EPRESENTATIVE, THE ASSESSING OFFICER HAD NOT FURNISHED TO THE ASSESSEE THE COPIES OF THE STATEMENTS RECORDED FROM THIRD PARTIES. HOWEVER, T HE SAME WERE USED TO DISALLOW THE CLAIM OF THE ASSESSEE. WE HEARD SHRI K.K. JOHN, THE LD.DR ALSO. 62 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 35. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. NO MATER IAL IS AVAILABLE ON RECORD TO SUGGEST THAT THE STATEMENTS SAID TO BE RE CORDED FROM THIRD PARTIES WITH REGARD TO COMMISSION PAYMENTS WERE FURNISHED T O THE ASSESSEE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT UNLESS A ND UNTIL THE COPIES OF THE STATEMENTS RECORDED FROM THIRD PARTIES ARE FURNISHE D TO THE ASSESSEE, THE SAME CANNOT BE USED AGAINST THE ASSESSEE. THEREFOR E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT BEFORE PLACING ANY RELI ANCE ON THE STATEMENT OF THIRD PARTIES, THE SAME SHALL BE FURNISHED TO THE A SSESSEE. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ON THIS ISSUE A RE SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL FURNISH THE STATEMENTS RECORDED FROM THIRD PA RTIES TO THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANC E WITH LAW. THE ASSESSEE MAY ALSO BE PROVIDED WITH AN OPPORTUNITY T O CROSS EXAMINE THE THIRD PARTIES, IF HE SO DESIRES. 36. IN THE REVENUES APPEAL IN THE CASE OF SHRI M.J . THOMAS IN ITA NO.311/COCH/2011 THE REVENUE HAS TAKEN ONE MORE GRO UND WITH REGARD TO UNEXPLAINED CASH CREDIT OF RS. 97 LAKHS. 63 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 37. SHRI KK JOHN, THE LD.DR SUBMITTED THAT THE ASSE SSEE CLAIMED THAT HE AVAILED A LOAN OF RS.97 LAKHS FROM MRS. SUNITHA ELI ZEBATH GEORGE AND THE SAME WAS USED FOR STATEMENT OF ACCOUNT WITH MEGA CI TY PROMOTERS. THE ASSESSING OFFICER SUMMONED MRS. SUNITHA ELIZEBATH G EORGE U/S 131 OF THE ACT. AFTER RECEIVING THE SUMMONS U/S 131 OF THE AC T MRS. SUNITHA ELIZEBATH GEORGE REQUESTED FOR ADJOURNMENT, HOWEVER , SHE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER AND FILED A LET TER ON 30-12-2009 SAYING THAT THE TEMPORARY LOAN OF RS.97 LAKHS WAS GIVEN TO HER BROTHER IN LAW, SHRI M.J. THOMAS. MRS. SUNITHA ELIZEBATH GEORGE FURTHER CLAIMED IN THE LETTER DATED 30-12-2009 THAT THE LOAN WAS ADVANCED FROM TH E SALE PROCEEDS OF THEIR ANCESTRAL PROPERTY AT KAKKANAD. HOWEVER, THE DETAILS OF LAND SOLD WERE NOT FURNISHED TO THE ASSESSING OFFICER. MRS. SUNITHA ELIZEBATH GEORGE HAS NOT FILED ANY RETURN OF INCOME. SINCE THE ASSE SSEE FAILED TO DISCHARGE THE ONUS FOR TAKING THE TEMPORARY LOAN, THE ASSESSI NG OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE. HOWEVER, THE CIT(A) OBSERVE D THAT THE ASSESSEE HAS FURNISHED THE PERMANENT ACCOUNT NUMBER OF THE L ENDER, STATEMENT OF BANK ACCOUNT TO THE CIT(A). ON THE BASIS OF THE MA TERIAL SAID TO BE FILED BEFORE THE CIT(A), HE ALLOWED THE CLAIM OF THE ASSE SSEE. ACCORDING TO THE 64 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 LD.DR, THE ASSESSEE HAS NOT ESTABLISHED THE GENUINE NESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CREDITO R, THEREFORE, IT CANNOT BE ALLOWED. 38. ON THE CONTRARY, SHRI R LOKANATHAN, THE LD.REPR ESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PRODUCED A COPY OF THE BANK STATEMENT FROM INDUSIND BANK, KAKKANAD FROM WHERE T HE MONEY WAS TRANSFERRED TO THE ACCOUNT OF THE ASSESSEE. ACCORD ING TO THE LD.REPRESENTATIVE, THE ASSESSEE HAS FURNISHED PERMA NENT ACCOUNT NUMBER OF MRS. SUNITHA ELIZEBATH GEORGE. THEREFORE, ACCOR DING TO THE LD.REPRESENTATIVE, THE GENUINENESS OF THE TRANSACTI ON WAS ALSO PROVED; HENCE, THE CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. 39. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSE SSEE CLAIMS THAT RS.97 LAKHS WAS RECEIVED AS TEMPORARY LOAN FROM MRS. SUNI THA ELIZEBATH GEORGE. THE SOURCE FOR MRS. SUNITHA ELIZEBATH GEORGE IS SAI D TO BE THE SALE PROCEEDS OF ANCESTRAL PROPERTY. HOWEVER, THE FACT REMAINS IS THAT THE DETAILS OF SALE OF AGRICULTURAL PROPERTY WAS NOT FU RNISHED TO THE ASSESSING 65 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 OFFICER. THE CIT(A) OBSERVED THAT THE ASSESSEE HAS FILED COPIES OF THE BANK STATEMENTS AND PERMANENT ACCOUNT NUMBER OF MRS . SUNITHA ELIZEBATH GEORGE. THE FACT REMAINS IS THAT MRS. SUNITHA ELIZ EBATH GEORGE HAS NOT FILED ANY RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION. THE DETAILS OF LAND SOLD ARE ALSO NOT FURNISHED TO THE ASSESSING O FFICER. THE PERMANENT ACCOUNT NUMBER AND THE BANK STATEMENTS APPEAR TO BE FILED FOR THE FIRST TIME BEFORE THE CIT(A). THEREFORE, THIS TRIBUNAL I S OF THE CONSIDERED OPINION THAT THE CIT(A) IS NOT JUSTIFIED IN DELETIN G THE ADDITION. HOWEVER, WE ARE OF THE OPINION THAT GIVING ONE MORE OPPORTUN ITY TO THE ASSESSEE TO PROVE THE CREDIT WOULD NOT PREJUDICE THE INTEREST O F THE REVENUE. HENCE, THE ORDER OF THE CIT(A) ON THIS ISSUE IS SET ASIDE AND THE ISSUE OF UNEXPLAINED CASH CREDIT OF RS.97 LAKHS IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CON SIDER THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. IT IS OPEN TO THE ASSESSEE TO PRODUCE NECESSARY MATERIAL TO ESTABLISH THE IDENTIT Y OF THE CREDITOR, CREDITWORTHINESS OF THE CREDITOR AND THE GENUINENES S OF THE TRANSACTION. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AF RESH AFTER CONSIDERING THE MATERIALS, IF ANY, THAT MAY BE FILED BY THE ASS ESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 66 ITA NO. 224/COCH/2011 ITA NO. 311/COCH/2011 ITA NO.559/COCH/2011 ITA NO.556/COCH/2011 ITA NO.561/COCH/2011 ITA NO.336/COCH/2013 C.O. NO.03 TO 05/COCH/2012 40. IN THE RESULT, APPEALS IN ITA NO.224/COCH/2011 IS ALLOWED FOR STATISTICAL PURPOSE, ITA NO.311/COCH/2011 IS PARTLY ALLOWED FOR STATISTICAL PURPOSE; ITA NO.336/COCH/2011 IS ALLOWED; ITA NOS.5 56, 559 & 561/COCH/2011 ARE DISMISSED AND THE CROSS OBJECTION S IN CO NOS 03 TO 05/COCH/2012 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 TH JUNE, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 06 TH JUNE, 2014 PK/- COPY TO: 1. SMT. MARY JOHN POOMKUDY, 12-A LINK HEIGHTS, KOCH I-36 / SMT. ANITHA ZACHARIS, POOMKUDY VILLA, KUNNUMPURAM PO, KAKKANAD, COCHIN 30 / JOHN AUGUSTY, POOMKUDY LINK HEIGHTS, PANAMPILLY NAG AR, KOCHI-36 / GEORGE THOMAS, MALABAR CANNING, 33/1885 B7, FRUITOM ANS BUILDING, COCHIN BYPASS, VENNALA P.O., KOCHI / SHRI M.J. THOM AS, MUKKADAYIL HOUSE, ST. VINCENT ROAD, ERNAKULAM 2. THE DY.CIT, CIR.4(1) / CIR.2(1) / 1(2) / 2(2), E RNAKULAM 3. THE COMMISSIONER OF INCOME-TAX, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-II, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH