Jaydeep Kumar Maheswari, CHENNAI V. ITO, CHENNAI

ITA 1157/CHNY/2015

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9926 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-05-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Keywords: Capital asset; Onus to prove

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . !' , # $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO. 1157/MDS/2015 / ASSESSMENT YEAR : 2011-12 JAYDEEP KUMAR MAHESWARI, PROP. M/S. ALCO METALS, 57/1, MOORE STREET, CHENNAI 600 001. PAN ACNPJ7942F. (/ APPELLANT) BY SHRI JAYDEEP KUMAR MAHESWARI, ASSESSEE V. THE INCOME-TAX OFFICER, BUSINESS WARD-VIII(4), CHENNAI 600 006. (/ RESPONDENT) BY SHRI P. RADHAKRISHNAN, JCIT ./ ITA NO. 1159/MDS/2015 / ASSESSMENT YEAR : 2011-12 BIRAJLATA DEVEI MAHESWARI, PROP. M/S. SWASTIC ENTERPRISES, 57/1, MOORE STREET, CHENNAI 600 001. PAN AELPM3802M (/ APPELLANT) V. THE INCOME-TAX OFFICER, BUSINESS WARD-VIII(1), CHENNAI 600 006. (/ RESPONDENT) B Y BY SHRI JAYDEEP KUMAR MAHESWARI SHRI P. RADHA KRISHNAN, JCIT SON OF ASSESSEE / DATE OF HEARING : 30.06.2015 ! / DATE OF PRONOUNCEMENT : 09.07.2015 - - ITA 1157 & 1159/15 2 & / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTE D AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TA X(APPEALS) DATED 10.3.2015. SINCE, COMMON ISSUE IS INVOLVED IN THESE APPEALS, THEY ARE CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE . FOR THE SAKE OF BREVITY, WE CONSIDER THE FACTS NARRATED IN ITA NO.1157/MDS/2015. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E AND FOUR OTHERS HAVE JOINTLY SOLD A PROPERTY ON 16.11.2010 F OR ` 2,45,00,000/-. IN THE RETURN OF INCOME FILED BY TH E ASSESSEE, NO DETAILS OF CAPITAL GAIN OR CLAIM OF EXEMPTION WERE FURNISHED. DURING THE COURSE OF HEARING BEFORE AO, THE ASSESSE E WAS REQUESTED TO FURNISH COMPLETE DETAILS OF THE ABOVE SALE AND THE APPLICABILITY OF TAX ON CAPITAL GAINS BY AO. IN RE SPONSE, THE ASSESSEE FILED COPY OF THE SALE DEED DATED 16.11.20 10. THE ASSESSEE STATED THAT THE SAID LAND WAS PURCHASED ON 1.2.1961 AND THE LAND IS AN AGRICULTURAL LAND SITUATED AT T AL VILLAGE, ALLOT - - ITA 1157 & 1159/15 3 TAHSIL, RATLAM DISTRICT OF MADYA PRADESH. FURTHE R, THE ASSESSEE CLAIMED THAT THE SAID LAND WAS AN AGRICULT URAL LAND UTILIZED FOR AGRICULTURAL ACTIVITIES AND HENCE, THE SALE RECEIPTS OF THE ABOVE LAND DOES NOT ATTRACT CAPITAL GAIN TAX. THE ASSESSEE CLAIMED THE ABOVE SALE PROCEEDS AS EXEMPTED INCOME UNDER SEC.10(37) OF THE ACT, STATING THAT CAPITAL GAIN A RISES ON TRANSFER OF AGRICULTURE LAND IS NOT TAXABLE. THE CLAIM OF THE ASSESSEE THAT THE SALE PROCEEDS OF THE ABOVE LAND ARE EXEMPTED U/ S.10(37) OF THE ACT, WAS EXAMINED IN DETAIL. THE SAID SALE DEE D WAS REGISTERED WITH THE DEPUTY REGISTRAR, ALOTE, RATLAM DISTRICT. IN ORDER TO ASCERTAIN THE LOCATION AND ALSO GUIDELINE VALUE OF THE LAND, WHICH WAS SOLD, A LETTER DATED 4.9.2013 WAS I SSUED U/S.133(6) OF THE ACT, THE DEPUTY REGISTRAR, ALOTE, RATLAM DISTRICT BY THE AO. IN RESPONSE, A REPLY DATED 11.9.2013 WA S RECEIVED FROM THE DEPUTY REGISTRAR FURNISHING THE FOLLOWING INFORMATION: (A) THE LAND SOLD IS SITUATED IN NAGAR PANCHAYAT, (B) SAID LAND WAS SOLD FOR ` 2,45,00,000. ACCORDINGLY, THE AO OBSERVED THAT THE LAND IS SITUA TED IN THE MUNICIPALITY AND IT IS A CAPITAL ASSET AND NON-AGRI CULTURAL LAND. THEREFORE, HE BROUGHT CAPITAL GAINS FOR TAXATION. ON APPEAL, THE - - ITA 1157 & 1159/15 4 CIT(APPEALS) CONFIRMED THE FINDING OF THE AO. AGAI NST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LD. AR SUBMITTED THAT THE LAND SOLD IS AN AG RICULTURAL LAND. AGRICULTURAL ACTIVITY HAS BEEN CARRIED ON AN D IT IS DISCLOSED REGULARLY IN THE RETURN OF INCOME. THE VILLAGE REV ENUE OFFICER HAS ASSESSED THE SAID LAND TO KIST. THE LAND IS SITUAT ED 20 KMS. AWAY FROM THE NEAREST MUNICIPALITY. THE AO HAS ACC EPTED THE ABOVE FACTS AND BASED ON DEPUTY REGISTRARS INFORMA TION, AO CONCLUDED THAT TAL IS A NAGAR PANCHAYAT. IT HAS A POPULATION OF MORE THAN 10,000. WHEREAS PANCHAYAT IS ESSENTIALLY A RURAL SELF-GOVERNMENT INSTITUTION. THUS, THERE IS NO ROO M FOR THE APPLICATION OF EJUSDEM GENERIS DOCTRINE IN INCLUDING PANCHAYATS WHICH ARE A DISTINCT GENUS OR CATEGORY IN THE TERM ANY OTHER NAME AND TO CLASSIFY THE SAME AS A MUNICIPALITY WI TH ITS DIFFERENT VARIATIONS AS SPELT OUT IN SEC.2(14)(III)(A). ACC ORDING TO THE LD. AR, AS PER PROVISIONS OF SEC.2(14)(III)(A), AGRICUL TURAL LAND IS A CAPITAL ASSET IF BOTH THE FOLLOWING CONDITIONS ARE SATISFIED: (A) IT IS SITUATED IN MUNICIPALITY OR CANTONMENT (B) POPULATION OF THE AREA IS NOT LESS THAN 10000. - - ITA 1157 & 1159/15 5 IN THE PRESENT CASE, THE ABOVE CONDITIONS WERE NOT SATISFIED AND HENCE, LAND TO BE TREATED AS AGRICULTURAL LAND. 4. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE R OF THE CIT(APPEALS). 5. WE HAVE HEARD BOTH PARTIES AND PERUSED THE MATER IAL ON RECORD. SEC. 2(14), WHICH DEFINES AS FOLLOWS: 'SEC.2(L4) 'CAPITAL ASSET' MEANS PROPERTY OF ANY KI ND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT INCLUDE- (I) ANY STOCK-IN-TRADE, CONSUMABLE STORES OR RAW MATERIALS HELD FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION; (II) PERSONAL EFFECTS, THIS IS TO SAY, MOVABLE PROP ERTY (INCLUDING WEARING APPAREL, JEWELLERY AND FURNITURE ) HELD FOR PERSONAL USE BY THE ASSESSEE OR ANY MEMBER OF HIS FAMILY DEPENDENT ON HIM; (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SI TUATE- (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE 1 ST DAY OF THE PREVIOUS YEAR ; O R (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MOR E THAN EIGHT KILOMETRES 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, URBANISATION OF TH AT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE;' - - ITA 1157 & 1159/15 6 6. THE ASSESSEE POINTED OUT THAT THE LAND IS AGRICU LTURAL IN NATURE AND IT IS OUTSIDE THE PURVIEW OF CAPITAL ASS ET. THE ASSESSEE TOOK A STAND THAT AGRICULTURAL ACTIVITIES WERE CARRIED OUT IN THIS LAND. THE ASSESSEE ALSO TOOK A STAND THAT THE PROPERTY IS NOT SITUATED WITHIN THE JURISDICTION OF A MUNICIPAL ITY OR A CANTONMENT BOARD. THEREFORE, IT DID NOT FALL WITHI N THE EXCLUSION OF CLAUSE (A) MENTIONED ABOVE. THE CONDITION FOR A PPLICABILITY OF CLAUSE (A) TO SEC.2(14)(III) OF THE ACT IS THAT THE LAND SHOULD BE SITUATED WITHIN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTIO N OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BO ARD. THE FURTHER CONDITION FOR APPLICABILITY OF CLAUSE (A) TO SEC.2(14)(III) IS THAT THE MUNICIPALITY, MUNICIPAL CORPORATION, NOTIF IED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME OR A CANTONMENT BOARD SHOULD HAVE A POPU LATION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE LAST PR ECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBL ISHED BEFORE THE 1 ST DAY OF THE PREVIOUS YEAR. THE PROPERTY IN QUESTIO N IS WITHIN THE JURISDICTION OF A PANCHAYAT. THE MADRAS HIGH COURT IN - - ITA 1157 & 1159/15 7 THE CASE OF CIT VS. P.J. THOMAS (211 ITR 897) HAD T O DEAL WITH THE FOLLOWING QUESTION: 2. WHETHER THE TRIBUNALS VIEW THAT THE AGRICULTU RAL LANDS WITHIN THE PANCHAYAT CANNOT BE REGARDED AS FALLING WITHIN THE SCOPE OF S.2(14) IS REASONABLE, SUPPORTED BY VALID MATERIALS AND SUSTAINABLE IN LAW ? THEREFORE, WE DO NOT SEE ANY DIFFICULTY IN COMING T O THE CONCLUSION THAT THE PROPERTY IN QUESTION IS NOT AN URBAN LAND WITHIN THE MEANING OF CLAUSE (A) TO SEC.2(14) OF TH E ACT. 7. THE NEXT ASPECT TO BE SEEN IS AS TO WHETHER THE PROPERTY IS URBAN LAND WITHIN THE MEANING OF CLAUSE (B) OF S EC.2(14)(III) OF THE ACT. THE ASSESSING OFFICER HEREIN, WAS OF THE OPINION THAT THE POPULATION OF THE PANCHAYAT IS MORE THAN 10,000 AND IT DOES NOT AUTOMATICALLY MAKE IT AN AGRICULTURAL LAND AND SUCH LAND HAS TO BE USED FOR AGRICULTURAL PURPOSES. THEREFORE, W E FIND THAT THERE IS NO IOTA OF EVIDENCE PRODUCED BY THE ASSESS EE TO SUGGEST THAT AGRICULTURAL ACTIVITIES WERE CARRIED OUT IN TH E INDIVIDUAL LAND. THE SUPREME COURT IN THE CASE OF CWT V. OFFICER-IN- CHARGE (COURT OF WARDS), PAIGAH (105 ITR 133) , WHEREIN QUESTION TO BE DECIDED WAS WHETHER 108 ACRES OF VACANT LAND ENCLOS ED IN COMPOUND WALLS OF A PALACE SITUATED BY THE SIDE OF A LAKE AND - - ITA 1157 & 1159/15 8 CLASSIFIED AND ASSESSED TO LAND REVENUE , WHICH WERE NEITHER CULTIVATED NOR HAD BEEN PUT TO NON-AGRICULTURAL USE IN THE PAST COULD BE REGARDED AS ' AGR I CULTURAL LAND ' WITHIN THE MEANING OF THAT EXPRESSION WHICH OCCURRED IN THE DEFINITION OF 'ASSET' IN SECTION 2(E) OF THE WT ACT , 1957 . THE HON ' BLE SUPREME COURT HELD THAT MUCH WEIGHT CANNOT BE GIVEN TO MERE 'POTE NTIALITY' OF THE LAND FOR USE FOR AGRICULTURAL PURPOSES AND WHAT IS REALLY REQUIRED TO BE SHOWN IS THE CONNECT I ON WITH AN AGRICULTURAL PURPOSE AND USER AND NOT THE MERE POSSIBILITY OF US ER OF THE LAND, BY SOME POSSIBLE FUTURE OWNER OR POSSESSOR , FOR AN AGRICULTURAL PURPOSE . IT IS NOT MERE POTENTIALITY, BUT ITS ACTUAL CONDITI ON AND INTENDED USER WHICH HAS TO BE SEEN . ONE OF THE OBJECTS FOR EXEMPTION I S TO ENCOURAGE CULTIVATION OR ACTUAL UT IL ISATION OF LAND FOR AGRICULTURA L PURPOSES AND HENCE I F THERE IS NE I THE R ANYTHING IN ITS CONDITION , NOR ANYTHING I N THE EV I DENCE TO I ND I CATE THE I NTENT I ON OF I TS OWNERS OR POSSESSORS SO AS TO CONNECT IT WITH A N AGR I CULTURA L PURPOSE , THE LAND COULD NOT BE ' AGR I CULTURA L L AND ' . 8. IN THE CASE BEFORE THE SUPREME COURT THE FOLLOWING CIRCUMSTANCES WERE EMPHASISED VIZ . (I) AREA WAS VERY LARGE - - ITA 1157 & 1159/15 9 (108 ACRES) AND WAS ABUTTING A LAKE, (II) THERE WERE TWO WELLS ON IT (III) IT WAS CAPABLE OF BEING USED (THOUGH NOT A CTUALLY USED) FOR AGRICULTURAL PURPOSES , (IV) IT HAD NOT BEEN PUT TO ANY USE WHICH COULD CHANGE ITS CHARACTER BY MAKING IT UNFIT FOR I MMEDIATE CULTIVATION; AND (V) IT WAS CLASSIFIED AND ASSESSED TO LAND REVENUE AS 'AGRICULTURAL LAND' UNDER THE RELEVANT R EVENUE ENACTMENT . THE SUPREME COURT HELD THAT FIRST FOUR CIRCUMSTANCES RELATING TO ABSENCE OF NON-AGRICULTURAL USER WERE NEUTRAL CIRCUMSTANCES AND ONLY FIFTH CIRCUMSTANCE W AS GOOD PRIMA FACIE EVIDENCE OF LAND BEING AGRICULTURAL LAN D BUT PRESUMPTION ARISING THEREFROM COULD BE REBUTTED BY OTHER CIRCUMSTANCES. IN THAT CASE THE ASSESSEE HAD NOT LE D ANY EVIDENCE ABOUT INTENDED USER BECAUSE ASSESSEE WAS U NDER MISTAKEN IMPRESSION THAT IT WAS NOT NECESSARY TO DO SO IN VIEW OF EXISTENCE OF PRIMA FACIE EVIDENCE IN THE FORM OF EN TRIES IN THE REVENUE RECORD AND THEREFORE, THE SUPREME COURT RES TORED THE MATTER TO TRIBUNAL TO RECORD A FINDING ON THE QUEST ION OF INTENDED USER AND THEN DECIDE THE POINT WHETHER THE LAND IN QUESTION WAS AGRICULTURAL LAND . THE SUPREME COURT DISAPPROVED THE VIEW THAT THAT LAND WHICH IS LEFT BARREN BUT WHICH IS CAPABLE OF BEING - - ITA 1157 & 1159/15 10 CULTIVATED CAN ALSO BE AGRICULTURAL LAND UNLESS THE SAID LAND IS . ACTUALLY PUT TO SOME OTHER NON-AGR I CULTURAL PURPOSE LIKE CONSTRUCTION OF BUILDINGS , OR AN AERODROME RUNWAY , ETC . THEREON WHICH ALTERS THE PHYSICAL CHARACTER OF THE LAND REN DERING I T UNFI T FOR IMMEDIATE CULTIVATION AND OBSERVED THAT MINIMAL TEST OF AGRICULTURA L L AND WAS CREDIBLE EVIDENCE OF AT LEAST APPROPRIATION OR SETTING APART OF THE LAND FOR A PU RPOSE WHICH COULD BE REGARDED AS AGRICULTURAL AND FOR WHI CH LAND . WAS USED WITHOUT AN ALTERATION OF ITS CHARACTER . 9 . THE DECISION OF SUPREME COURT IN THE CASE OF OFFICER - IN- CHARGE (COURT OF WARDS), CITED SUPRA WAS ANALYSED BY THE GUJARAT HIGH COURT IN CIT VS. SARIFABIBI MOHMMED LBREBIM 136 ITR 621 (GUJ) AND THE LEGAL POSITION WAS SUMMED UP AS FOLLOWS ; - I ) THE FACT THAT LAND IS ENTERED AS AGRICULTURAL LAND IN REVENUE RECORDS AND IS ASSESSED AS SUCH UNDER THE LAND REVENUE CODE WOULD BE A C I RCUMSTANCE IN FAVOUR OF CON C LUSION THAT IT IS AN AGRICULTU RA L LAND . HOWEVER , THIS WOULD RAISE ONLY A PRIMA FACIE PRESUMPTION AND SAID PRESUMPT I ON CAN BE DESTROYED BY OTHER CIRCUMSTANCES POINTING TO THE CONTRAR Y CONCLUSION. ( II ) THE FACT TH AT AGRICULTURAL OPERATIONS W ERE CARRIED ON IN THE PAST OR ARE CARRIED ON CURRENTLY IS A CIRCUMSTA NCE IN - - ITA 1157 & 1159/15 11 FAVOUR OF CONCLUSION THAT LAND WAS AGRICU L TURAL LAND . HO W EVER, THIS IS NOT A DECISIVE FACTOR INASMUCH AS AGR I CULTURAL CROP CAN BE RAISED EVEN ON BUILDING S IT E LAND (EVEN ON DESERT LAND AS OBSERVED BY THE SUPREME COU RT I N SAID CASE) AND SOM E TIME S, A CROP IS G ROWN IN ORDER NOT TO ALLOW THE LAND TO REMAIN IDLE A W AITING SALE FOR NON - AGRICULTURAL PURPOS E S TO A NON- AGRICULTURIST BY W A Y OF A STOP-GAP ARRANGEMENT OR IN ORDER TO AVOID PA YM NENT OF REV E NUE AT A H I GHER RATE O R IN ORDER TO AVOID PA Y MEN T OF CAPITAL GAIN S TAX . III ) THE FACT THAT LAND . IS NOT CON V ERTED TO NON-AGR I CULTURAL U S ER WOULD BE A CIRCUMSTANCE INDICATING THAT IT IS AN AGRICULTURAL LAND. HOWEVER THIS IS SUBJECT TO SAME RIDER AS IS MENTIONED IN (I I) ABOVE . (IV) THE FOLLOWING FACTS WOULD INDICATE THAT LAND W AS NOT AGRICULTURAL LAND: (A) THE LAND IS SITUATED (EVEN IN THE YEAR PRIOR TO ASST. YR. 1970-71 WHEN AMENDMENT CAME IN FORCE) IN AN URBAN AREA IN THE PROXIMITY OF BUILDING SITES. (FROM ASST. YR. 197-71, AGRICULTURAL LANDS SITUATE WITHIN MUNICIPAL LIMITS ARE NOT OUTSIDE THE AMBIT OF CAPITAL ASSETS) (B) THE LAND IS SOLD TO A NON-AGRICULTURIST FOR NON - AGRICULTURAL PURPOSES. (C) THE LAND IS SOLD ON A PER SQUARE YARD BASIS AT A PRICE COMPARABLE TO THE PRICE FETCHED BY BUILDING SITES. (D) THE PRICE IS SUCH THAT NO BONA FIDE AGRICULTURI ST WOULD PURCHASE THE SAME FOR GENUINE AGRICULTURAL OPERATIONS. (E) WHEN THE PRICE IS SUCH THAT NO PRUDENT OWNER WOULD SELL IT AT A PRICE WORKED OUT ON THE CAPITALISATION METHOD TAKING INTO ACCOUNT ITS - - ITA 1157 & 1159/15 12 OPTIMUM YIELD IN THE MOST FAVOURABLE CIRCUMSTANCES. 10. THE ABOVE DECISION OF GUJARAT HIGH COURT HAS BEEN AFFIRMED IN APPEAL BY THE SUPREME COURT IN SARIFABIBI MOHMED IBRAHIM VS. CIT (204 ITR 631)(SC) IN WHICH THE SUPREME COURT EMPHASISED THAT ALL THE CIRCUMSTANCES WERE REQUIRED TO BE WEIGHTED AND THAT HIGH COURT HAS REACHED A CORRECT CONCLUSION. 11. THE CLAIM OF THE ASSESSEE THAT AGRICULTURAL OPERATIONS WERE CARRIED OUT OVER THE PROPERTY AND T HE PROPERTY WAS ACTUALLY USED FOR AGRICULTURAL PURPOSE WAS SOUGHT TO BE ESTABLISHED BY RELYING ON THE CLASSIFI CATION OF THE PROPERTY IN THE REGULAR COURSE. IN OUR OPIN ION, THE BURDEN OF PROOF THAT THE LAND IN QUESTION WAS AGRIC ULTURAL LAND AT THE TIME OF TRANSFER TO CLAIM EXEMPTION WAS ON THE ASSESSEE. AS ALREADY OBSERVED THE QUESTION, WHETHER THE LAND WAS AGRICULTURAL LAND, HAS TO BE DECIDED ON FACTS OF EACH CASE AND DECIDED CASES ARE ONLY GUIDELINES TO BE KEPT IN MIND. FACTS AND ALL THE CIRCUMSTANCES ARE TO BE CONSIDERED AS A WHOLE AND A N - - ITA 1157 & 1159/15 13 OVERALL VIEW IS TO BE TAKEN IN DECIDING WHETHER THE LAND WAS AN AGRICULTURAL LAND. IN A GIVEN CASE, LARGE N UMBER OF CIRCUMSTANCES MAY BE INDICATIVE OF AGRICULTURAL CHARACTER BUT ONE CIRCUMSTANCE MAY OUTWEIGH ALL OF THEM AND ON ITS BASIS THE LAND WOULD BE HELD TO BE A NON-AGRICULTURAL LAND. THE ASSESSEE, IN THE PRESEN T CASE, WAS NOT ABLE TO PRODUCE ANY EVIDENCE TO PROVE THAT AGRICULTURAL ACTIVITIES WERE CARRIED OUT IN TH E INDIVIDUAL LAND. NO EVIDENCE OF HAVING SPENT HUMAN LABOUR IN THE SENSE OF PREPARING THE LAND, FILLING, SOWING SEEDS, PLANTING ON A REGULAR BASIS HAS BEEN PRODUCE D BY THE ASSESSEE. BEING SO, IN OUR OPINION, THE PRO PERTY WAS NOT AN AGRICULTURAL LAND AND IT IS A CAPITAL AS SET, WE UPHOLD THE ORDERS OF THE LOWER AUTHORITIES IN TAXIN G THE INCOME AS CAPITAL GAINS. 12. SINCE THE ISSUE IN ITA NO.1159/MDS/14 IN THE CASE OF BIRAJLATA DEVEI MAHESWARI IS IDENTICAL, WHO IS THE CO-OWNER OF THE PROPERTY, WE CONFIRM THE ORDERS OF THE LOWER AUTHORITIES IN THIS CASE ALSO. - - ITA 1157 & 1159/15 14 13. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 9 TH OF JULY, 2015 AT CHENNAI. SD/- SD/- ( . ' # ) ( $ % & ' ) (V.DURGA RAO) (CHANDRA POOJARI) 9 ': /JUDICIAL MEMBER ; ':/ACCOUNTANT MEMBER $;9 /CHENNAI, C' /DATED, THE 9 TH JULY, 2015. MPO* ';D EF G;F /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. H () /CIT(A) 4. H /CIT 5. FI# J /DR 6. #K L /GF.