Shri Jagdishbhai Gadhiya, Surat V. The Income Tax Officer, Ward 3(2), Surat

ITA 1503/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85687 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Keywords: Capital asset; Assessment record
• Section: 2(14); 63

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.1503/AHD/2013 ( / ASSESSMENT YEAR : 2009-10) JAGDISHBHAI GADHIYA C/O.SNK & CO., 31A, ADARSH SOCIETY OPP. SEVENTH DAY ADVENISH SCHOOL ATHWALINES, SURAT / VS. THE INCOME TAX OFFICER WARD-3(2) SURAT ' ./ ./ PAN/GIR NO. : ABCPG 0746 J ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : SHRI SAMIR SHAH, AR &''%)( / RESPONDENT BY : SHRI ROOP CHAND, SR. DR *) / DATE OF HEARING 04/02/2015 +,-.) / DATE OF PRONOUNCEMENT 13/02/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-IV, SURAT (CIT(A) IN SHORT) DATED 28/03/2013 PERTAINING TO ASSESSMENT YEAR (AY) 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 2 - 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN SUSTAINING ADDITION TOWARDS SHO RT TERM CAPITAL GAIN AS MADE BY THE LEARNED AO ON ACCOUNT OF ALLEGE D COMPULSORY ACQUISITION OF AGRICULTURAL LAND DURING THE YEAR UN DER CONSIDERATION, WHICH WAS NOT EVEN CAPITAL ASSET AS PER SECTION 2(1 4) OF THE ACT; WHEN IT WAS PROPOSED TO BE ACQUIRED BY THE STATE GO VERNMENT. 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE STAND OF THE LEA RNED AO THAT NOTIFICATION ISSUED BY GOVERNMENT OF GUJARAT TO ACQ UIRE THE SAID AGRICULTURAL LAND FOR GIDC PURPOSE, SHOULD BE CONSI DERED AS LAND NOTIFIED BY THE CENTRAL GOVERNMENT AS PER REQUIREME NT OF SECTION 2(14)(III)(B) OF THE ACT. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE IMPUGNED ADDITIO N, IGNORING THAT THE AGRICULTURAL LAND WAS NOT TRANSFERRED IN THE SU BJECT YEAR BUT WAS TRANSFERRED IN FY 2010-11. 4. WITHOUT PREJUDICE TO GROUND OF APPEAL NO.1 AND WITH OUT ADMITTING, THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN TOTALLY DISREGARDING THAT EVEN OTHERWISE THE LAND BEING AGRICULTURAL LAND, CAPITAL GAIN IF ANY A RISING ON THE SAME DURING AY 2011-12 WAS EXEMPT U/S.10(37) OF THE ACT. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, SU BSTITUTE, MODIFY ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL, IF NECES SARY, ON THE BASIS OF SUBMISSIONS TO BE MADE AT THE TIME OF PERSONAL H EARING. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 29/12/2011, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION/DISALLOWANCE OF RS.57,10,250/- IN RESPECT OF SHORT-TERM CAPITAL GAIN ON ACCOUNT OF COMPULSORY ACQUISITION OF LAND. AGAINST THIS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 3 - SUBMISSIONS DISMISSED THE ASSESSEES APPEAL. NOW, THE ASSESSEE IS FURTHER IN APPEAL BEFORE US. 3. ALL THE GROUNDS ARE INTERCONNECTED AND, THEREF ORE, THE SAME ARE DECIDED TOGETHER. THE LD.COUNSEL FOR THE ASSESSE E SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD RECE IVED A SUM OF RS.64,10,250/- ON 23/03/2009 FROM GOVERNMENT OF GUJ ARAT AS ADVANCE PAYMENT FOR ACQUISITION OF AN AGRICULTURAL PLOT OF LAND SITUATED AT VILLAGE- RAIHIYAD, TAL.VAGHRA, DIST.BHARUCH. THE PLOT OF LAND WAS LOCATED OUTSIDE THE MUNICIPAL LIMIT OF BHARUCH MUNICIPALITY , EVENTHOUGH FALLING IN BHARUCH DISTRICT. THE PAYMENT WAS MADE ON INITI ATION OF PROCESS OF COMPULSORY ACQUISITION OF THE AGRICULTURAL LAND FOR NOTIFYING THE AREA UNDER GIDC. THE ASSESSEE HAD PURCHASED THE LAND ON 11/03/2008. THE ASSESSEE HAD BEEN CARRYING OUT AGRICULTURAL ACTIVIT Y ON THE SAID LAND BEGINNING FROM THE DATE OF PURCHASE TILL THE DATE O F ACTUAL ACQUISITION BY THE GIDC. THE LD.COUNSEL FOR THE ASSESSEE REITER ATED THE SUBMISSIONS MADE VIDE WRITTEN SUBMISSIONS DATED 30/05/2014, WHI CH ARE REPRODUCED HEREUNDER:- SIR, SUB: NOTICE OF PERSONAL HEARING IN APPEAL NO. 1T A/1503/A/2011 IN THE CASE OF JAGDISH L. GADHIYA ASSESSMENT YEAR 2009-2010 FILING OF WRITTEN SUBMISSIONS OUR ABOVE SAID CLIENT IS IN RECEIPT OF THE SUBJECT NOTICE GRANTING PERSONAL HEARING IN THE SUBJECT APPELLATE MATTER, AND IN THIS REGARD WE HAVE TO SUBMIT AS FOLLOWS FOR THE ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 4 - KIND CONSIDERATION AND IMMEDIATE REFERENCE OF YOUR HONOURS AS PER THE INFORMATION AND EXPLANATION PROVIDED BY THE APPELLANT. THE APPELLANT IS AN INDIVIDUAL ASSESSEE. DURING THE SUBJECT YEAR IT HAD EARNED COMMISSION INCOME, AGRICULTURAL INCOME, INTEREST IN COME AND INCOME FROM CAPITAL GAIN. 1. THE FACTS OF THE CASE TOGETHER WITH RELEVANT D OCUMENTARY EVIDENCES ARE SUBMITTED HEREIN BELOW FOR THE IMMEDIATE REFERENCE OF YOUR HO NOURS. 2. DURING THE YEAR UNDER CONSIDERATION, THE APPEL LANT HAD RECEIVED A SUM OF RS. 64,10,250/- ON 23/03/2009 FROM GOVERNMENT OF GUJARA T AS ADVANCE PAYMENT FOR ACQUISITION OF AN AGRICULTURAL PLOT OF LAND SITUATE D AT VILLAGE-RAHIYAD, TAL.-VAGHRA, DIST.-BHARUCH. THE PLOT OF LAND WAS LOCATED OUTSIDE THE MUNICIPAL LIMIT OF BHARUCH MUNICIPALITY, EVEN THOUGH, FALLING IN BHARUCH DISTR ICT. THE PAYMENT WAS MADE ON INITIATION OF PROCESS OF COMPULSORY ACQUISITION OF THE AGRICULTURAL LAND FOR NOTIFYING THE AREA UNDER GIDC. THE PLOT OF LAND WAS ACQUIRED BY THE APPELLANT ON 11/03/2008. 3. THE APPELLANT WAS CONTINUOUSLY UNDERTAKING AGR ICULTURAL ACTIVITY ON THE SAID PLOT OF LAND BEGINNING FROM ITS ACQUISITION DATE TILL DA TE OF ACTUAL ACQUISITION ON 27/11/2010 . COPY OF CERTIFICATE OF DEPUTY COLLECTOR AND LAND ACQUISITION OFFICER, GIDC, ANKLESHWAR CERTIFYING THE ACTUAL ACQUISITION OF LAND DURING FY 2010-11, IS ALREADY ENCLOSED WITH APPEAL MEMORANDUM, THE ENGLIS H TRANSLATION OF THIS CERTIFICATE IS ENCLOSED HEREWITH AS ANNEXURE-1. 4. YOUR HONOUR MAY APPRECIATE THAT THE LAND IS SI TUATED AT A DISTANCE OF AROUND 32 KMS. FROM THE MUNICIPAL BOUNDRY LIMIT OF. BHARUCH M UNICIPALITY ARID AROUND 30 KMS. FROM THE BOUNDRY LIMIT OF VAGHRA TALUKA. A CERTIFIC ATE ISSUED BY VADADLA GRAM PANCHAYAT CERTIFYING THE AFORESAID DISTANCE IN GUJA RATI LANGUAGE IS ALREADY ENCLOSED WITH APPEAL MEMORANDUM. THE CERTIFICATE ALSO CERTIF IED THAT THE APPELLANT HAD JOINTLY WITH THE CO-OWNER OF THE AGRICULTURAL LAND, CONDUCT ED AGRICULTURAL ACTIVITY ON THE SAID PLOT OF LAND, SINCE ITS ACQUISITION IN MARCH, 2008 UPTIL THE DATE OF COMPULSORY ACQUISITION BY GUJARAT GOVERNMENT ON 27/11/2010. TH E CERTIFICATE ALSO CERTIFIES THAT THE APPELLANT HAD OBTAINED TWO CROPS FROM THE SAID LAND VIZ. COTTON AND LENTIL SEEDS (TUVAR). THE ENGLISH TRANSLATION OF THIS CERTIFICATE IS ENC LOSED HEREWITH AS ANNEXURE- 2. 5. FURTHER, YOUR HONOURS MAY APPRECIATE THAT AN A GRICULTURAL LAND SITUATED IN RURAL AREA IS NOT A CAPITAL ASSETS IF - ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 5 - (A)THE LAND IS NOT SITUATED IN ANY AREA WITHIN THE TERRITORIAL JURISDICTION OF A MUNICIPALITY OR A CANTONMENT BOARD HAVING A POPULAT ION OF 10,000 OR MORE AND (B)LN ANY AREA (WITHIN 8 KMS. FROM THE MUNICIPALITY STATED ABOVE) AS SPECIFIED BY THE GOVERNMENT VIDE NOTIFICATION NO. 9447 DTD. 6-1-1994 , IN THE CASE OF THE APPELLANT, THE SAID LAND ACQUIRE D BY THE GIDC WAS SITUATED AT A DISTANCE OF 32 KMS. I.E. MORE THAN 8 KMS. FROM THE BOUNDRY OF BHARUCH MUNICIPALITY AND FURTHER, THE VILLAGE IN WHICH THE LAND IS SITUA TED DOES NOT HAVE POPULATION OF MORE THAN 3,000, HENCE, THE SUBJECT LAND IS NOT A CAPITA L ASSET AS PER THE DEFINITION OF CAPITAL ASSETS U/S. 2(14) OF THE ACT. 6. THUS, IT CAN BE SUMMARISED THAT - (A)THE APPELLANT JOINTLY HELD AN AGRICULTURAL PLOT OF LAND IN A REMOTE RURAL AREA. (B)THE APPELLANT HAD HIMSELF CARRIED ON AGRICULTURA L ACTIVITY ON THE SAID LAND FOR A PERIOD OF AT LEAST TWO YEARS PRIOR TO THE ACTUAL DA TE OF ACQUISITION OF THE SAID LAND BY GIDC IN F.Y. 2010-11. (C)THE DISTANCE OF THE SAID LAND HELD BY THE APPEL LANT FROM THE BOUNDRY OF BHARUCH MUNICIPALITY OR VAGHRA TALUKA IS 32 KMS. AND 30 KMS . RESPECTIVELY. THUS, THE SAID LAND DOES NOT FALL WITHIN THE DEFINITION OF CAPITAL ASSETS U/S. 2(14) OF THE I.T. ACT, 1961. 7. HENCE, IT HAS BEEN JUSTIFIABLY ESTABLISHED DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE TRANSFER OF SAID LAND WHICH IS NOT A CAPITAL ASSET, WILL NOT RESULT INTO ANY CHARGE OF INCOME TAX ON THE APPELLANT. 8. INSPITE OF HAVING SUBMITTED THE AFORESAID FACT S BEFORE THE LEARNED AO, HE HAS DISREGARDED THE SAME AND MADE AN ADDITION OF RS. 57 ,10,2507- TOWARDS LONG TERM CAPITAL GAIN THAT TOO FOR THE YEAR UNDER CONSIDERAT ION IGNORING THE FACT THAT THERE WAS NO TRANSFER OF CAPITAL ASSET AND THERE WAS NO TRANS FER AT ALL OF THE SAID LAND IN THE SUBJECT YEAR, BUT IT WAS TRANSFERRED IN THE F.Y. 20 10-1 1 PERTAINING TO A.Y. 201 1-12. EVEN THE LEARNED COMMISSIONER (APPEALS) HAS DISMISS ED THE APPEAL OF THE APPELLANT ON THE GROUND THAT THE LAND BEING ACQUIRED BY GOVER NMENT OF GUJARAT AS PER THE NOTIFICATION NO. GIDC/JAME(J-AA)/SEC.6/DAHEJ-2/L412 , GIDC, GANDHINAGAR TO BE DESIGNATED AS NOTIFIED AREA FOR GIDC, THE LAND WAS CONSIDERED TO BE SITUATED IN THE NOTIFIED AREA AND HENCE, IT CANNOT BE SAID TO BE CO NSIDERED AS RURAL AGRICULTURAL LAND ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 6 - AND HENCE, ARGUMENT OF THE APPELLANT THE SUBJECT LA ND IS NOT A CAPITAL ASSET, IS NOT CORRECT. IN THIS REGARD, WE HAVE MOST HUMBLY SUBMIT THAT SEC TION 2(14)(III)(B) CLEARLY STATES THAT THE NOTIFICATION SHOULD BE ISSUED BY THE CENTR AL GOVERNMENT TO SPECIFY AS TO WHICH AREA BEING NOT MORE THAN EIGHT KILOMETRES, FR OM THE LOCAL LIMITS OF MUNICIPALITY OR CANTONMENT BOARD SHOULD BE TREATED AS CAPITAL AS SET AND THE NOTIFICATION ISSUED BY GUJARAT GOVERNMENT CANNOT DECIDE WHETHER THE SAID L AND IS A CAPITAL ASSET OR NOT AND HENCE, THE FINDINGS OF THE LEARNED CIT(A) IS ABSOLU TELY UNLAWFUL, ILLEGAL, IRRELEVANT AND CONTRARY TO THE PROVISIONS AND INTENTION OF LEG ISLATION. THE RELEVANT EXTRACT OF SECTION 2(14)(III)(B) IS RE PRODUCED HEREIN BELOW FOR THE IMMEDIATE REFERENCE OF YOUR HONOURS. '(B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MO RE THAN EIGHT KILOMETRES, FROM THE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTON MENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOVERNMENT MAY, HAVING REG ARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF THAT AREA AND OTHER RELE VANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZE TTE.' 9. WITHOUT PREJUDICE TO THE TRUE AND CORRECT FACT S OF THE CASE AND THE AFORESAID CONTENTION OF THE APPELLANT THAT THERE IS NO CHARGE OF INCOME TAX ON TRANSFER OF THE SAID AGRICULTURAL LAND, LOCATED IN THE RURAL AREA A ND WITHOUT ADMITTING ON THE ALLEGATIONS OF THE LEARNED AO, WE HAVE TO FURTHER S UBMIT BEFORE YOUR HONOURS AS FOLLOWS. (A) EVEN OTHERWISE IF THE SAID LAND IS TREATED TO BE A CAPITAL ASSET AND PROFIT ARISING THEREFROM AS CHARGEABLE INCOME, THE LAND BE ING TRANSFERRED BY WAY OF COMPULSORY ACQUISITION VIDE AWARD NO. KHJA/AKL/CASE NO. 1/2008(2)/10 DTD. 27-11-2010 AS IS CERTIFIED BY THE DEPUTY COLLE CTOR, GIDC, ANKLESHWAR, THE GAIN ARISING ON TRANSFER OF THE SAID LAND CANNO T BE TAXED IN THE YEAR UNDER CONSIDERATION BUT CAN BE TREATED TO BE PERTAINING T O F.Y. 2010-11 I.E. A.Y. 2011-12. HENCE, SINCE NO TRANSFER TOOK PLACE IN THE YEAR UND ER CONSIDERATION THE QUESTION OF ADDITION TO TOTAL INCOME DOES NOT ARISE AND THEREFORE, EVEN ON THIS GROUND THE ADDITION MADE BY THE LEARNED AO NEEDS TO BE DELETED BY YOUR HONOURS. (B) CONSIDERING THE FACT THAT THE APPELLANT HAS BEEN UN DERTAKING AGRICULTURAL ACTIVITY ON THE SAID PLOT OF LAND SINCE ACQUISITION AND UPTO THE DATE OF ACTUAL PHYSICAL ACQUISITION BY THE GOVERNMENT AND THE PROV ISIONS OF SECTION 10(37) ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 7 - OF THE ACT, THE GAIN ARISING ON COMPULSORY ACQUISIT ION OF THIS AGRICULTURAL LAND WOULD EVEN OTHERWISE BE EXEMPT FROM TAX. HENCE, EVEN ON THIS GROUND THE ADDITION MADE BY THE LEARNED AO AND SUSTAINED BY THE LEARNED CIT(A) DISREGARDING THE FA CTS AND MERITS OF THE CASE AND CLEAR AND UNAMBIGUOUS PROVISIONS OF THE ACT, NE EDS TO BE DELETED IN THE INTEREST OF JUSTICE. 10. WE PLACE RELIANCE ON THE FOLLOWING RELEVANT JUD ICIAL PRONOUNCEMENTS WHICH ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. A) CIT V. SMT. LILAVATI THAKORELAL PATEL (1985) 152 IT R 565 (GUJ) 'IT HAS BEEN FOUND AS A MATTER OF FACT BY THE TRIBU NAL THAT THE LAND IN QUESTION WAS CLASSIFIED AS AGRICULTURAL LAND IN THE REVENUE RECORDS MAINTAINED UNDER THE BOMBAY LAND REVENUE CODE. IT HAS ALSO BEEN FOUN D BY THE TRIBUNAL THAT THE SALE DEED SUPPORTED BY THE PANIPATRAK ESTABLISH ED THAT AGRICULTURAL OPERATIONS WERE BEING CARRIED ON UPTO THE ACCOUNTIN G YEAR RELEVANT TO THE ASST. YR. 1966-67. THE TRIBUNAL HAS FOUND, FIRSTLY, THAT THE LANDS HAVE BEEN ACQUIRED BY THE FAMILY IN THE THIRTIES. THERE IS SO ME EVIDENCE TO HOLD THAT IT WAS BEING PUT TO AGRICULTURAL USE; AND THERE IS NOT HING TO INDICATE THAT IT WAS NOT SO USED IN ANY OF THE INTERMEDIATE YEARS. THIRD LY, THE LAND HAS ALSO BEEN ACCEPTED TO BE AN AGRICULTURAL LAND RIGHT UPTO THE ASST. YR. 1966-67 (RE. WEALTH-TAX ASSESSMENT) AND NOTHING HAS HAPPENED IN THIS YEAR EXCEPT SALE OF LAND WHICH WOULD INDICATE THAT THE CHARACTER OF THE LAND WAS CHANGED. THE ONLY ADVERSE CIRCUMSTANCE WHICH THE TRIBUNAL HAS NO TED WAS THAT THERE WAS SOME CONSTRUCTION ACTIVITY AROUND THE LAND IN QUEST ION; AND THAT THE TOWN PLANNING SCHEME WAS APPLIED TO THIS LAND SOME YEARS BACK. IT IS ALSO FOUND THAT THE ASSESSEE HAD NOT APPLIED FOR PERMISSION T O CONVERT THIS LAND INTO NON- AGRICULTURAL LAND. THE TRIBUNAL ALSO RECORDED THE FACTUM OF PAYMENT OF RS. 3,000 TO THE TENANT IN CONSIDERATION OF HIS HANDING OVER POSSESSION TO THE PURCHASERS, WHICH DEFINITELY SUPPORTED THE CONTENTION THAT THE LAND W AS BEING PUT TO AGRICULTURAL USE; AND THERE WAS NOTHING ON RECORD TO INDICATE TO THE CONTRARY. THE TRIBUNAL NOTED THAT THERE WAS NO SUB-PLOTTING OF LAND AND IT WAS SOLD AS ONE UNIT AND ITS VALUE WAS ALSO DETERMINED ON THE BASIS THAT IT WAS A SINGLE UNIT OF LAND AND NOT ON THE BASIS OF SQUARE YARDAGE OR PER SQUARE ME TRE BASIS. THE LAND WAS ACCEPTED AS AN AGRICULTURAL LAND IN WEALTH- TAX REF ERENCE. IN VIEW OF THESE FINDINGS OF FACT, IT CANNOT BE SUCCESSFULLY CONTEND ED, AS WAS SOUGHT TO BE DONE ON BEHALF OF THE REVENUE, THAT THE LAND IS NOT AN A GRICULTURAL LAND. INCLUSION OF THE LAND IN QUESTION IN THE TOWN PLANNING SCHEME OF THE SURROUNDING AREA BEING FULLY DEVELOPED OR THE LAND HAD BEEN VALUED F OR THE PURPOSES OF WEALTH- ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 8 - TAX RETURN ON SQUARE YARDAGE BASIS, WOULD NOT REBUT THE PRESUMPTION ARISING FROM THE ACTUAL USER OF THE LAND AS AN AGRICULTURAL LAND AND FROM ITS CLASSIFICATION AS AGRICULTURAL LAND IN THE REVENUE RECORDS OF THE STATE GOVERNMENT.CWT VS. OFFICER-IN-CHARGE (COURT OF WAR DS) 1976 CTR (SC) 404 : (1976) 105 ITR 133 (SC) APPLIED; CIT VS. SIDD ARTH J. DESAI (1982) 28 CTR (GUJ) 148 : (1982) 138 ITR 628 (GUJ) : TC20R.67 0, CWT VS. NARANDAS MOTILAL (1971) 80 ITR 39 (GUJ), CIT VS. MANILAL SOM NATH (1977) 106 ITR 917 (GUJ) ; TC20R.682#1 , CIT VS. PRAKASH INDUSTRIES 19 78 CTR (GUJ) 194 : (1978) 114 ITR 316 (GUJ) : TC20R.695, MANIBHAI MOTI BHAI PATEL VS. CIT (1981) 22 CTR (GUJ) 168 : (1981) 131 ITR 120 (GUJ) : TC20R.714 AND RAMPRASAD C. DALAL VS. CIT (1982) 136 ITR 633 (GUJ) : TC20R.722 FOLLOWED.' B) D.L.F. UNIVERSAL LTD. V. CIT (2001) 119 TAXMAN 373 (DEL) 'CAPITAL GAINSAGRICULTURAL LANDSCOMPULSORY ACQUIS ITION BY GOVERNMENTASSESSEE PURCHASED AGRICULTURAL LAND FOR ITS COLONISATION BUSINESSSAME ACQUIRED BY GOVERNMENT BEFORE CON VERSION INTO PLOTSCOMPENSATION RECEIVED FROM GOV ERNMENT FOR COMPULSORY ACQUISITION OF AGRICULTURAL LANDS NOT ASSESSABLE AS CAPITAL GAINSD.L.F. UNITED LTD. VS. CIT (1986) 161 ITR 714 (DEL) : TC 2 0R.742 FOLLOWED CONCLUSION: COMPENSATION RECEIVED BY ASSESSEE, FROM GOVERNMENT FOR COMPULSORY ACQUISITION OF AGRICULTURAL LANDS WHICH WERE PURCHA SED BY ASSESSEE FOR ITS COLONISATION BUSINESS WAS NOT ASSESSABLE AS CAPITAL GAINS.' C) ITO V. GAHLOT FARMS PVT. LTD. (2011) 138 TTJ (DEL) (UO) 13 'NOTIFIED AREA FOR THE PURPOSE OF S. 2(14)(III)(B) IN THE CASE OF TEHSIL SAMALKHA, DISTRICT KAMA/ IS AREA UPTO A DISTANCE OF 5 KMS. FROM MUNICIPAL LIMIT IN ALL DIRECTIONS AND, THEREFORE, AGRICULTURA L LAND SOLD BY THE ASSESSEE WHICH IS ADMITTEDLY SITUATED 7 TO 8 KMS. FROM THE M UNICIPAL LIMIT OF SAMALKHA CANNOT BE TREATED AS CAPITAL ASSET AND HENCE NO CAP ITAL GAIN IS CHARGEABLE TO TAX.' D) CIT V. SMT. JIJIBAI SHINDE (1996) 135 CTR (MP) 271 'THE LAND USED FOR AGRICULTURAL PURPOSES DOES NOT C OME WITHIN THE DEFINITION OF CAPITAL ASSET UNDER S. 2(14)(III) AND THEREFORE, NO CAPITAL GAIN TAX WAS CHARGEABLE ON THE COMPENSATION AMOUNT PAID TO THE A SSESSEE, ON ACQUISITION OF SUCH LAND.' ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 9 - E) CIT V. SMT. SANJEEDA BEGUM (2006) 154 TAXMAN 346 (A LL) 'LAND SOLD BY THE ASSESSEE BEING AGRICULTURAL LAND WHICH WAS LOCATED BEYOND 8 KMS. OF THE MUNICIPAL LIMITS, IT IS NOT INCLUDED IN THE DEFINITION OF 'CAPITAL ASSETS' AS GIVEN IN S. 2(14)(III) AND, THEREFORE, N O CAPITAL GAIN WAS EXIGIBLE TO TAX.' F) DCIT V. UDHAVA DAS FORMA & ORS. (2009) 124 TTJ (CHE NNAI) 817 'THE STATE GOVERNMENT BY EXERCISING ITS POWERS UNDE R S. 3(1) OF THE 1948 ACT CAN REQUISITION ANY LAND FOR THE PURPOSE SPECIFIED IN THE SAID SECTION. AS PER S. 6(1), IF THE LAND REQUISITIONED UNDER S. 3 IS NOT A CQUIRED, THE SAME MAY BE RELEASED BY THE STATE GOVERNMENT FROM REQUISITION A ND THE POSSESSION IS ALSO RETURNED TO THE OWNER WHO IS ENTITLED FOR THE POSSE SSION. AS PER S. 4(2) OF THE SAID ACT, THE PERIOD OF REQUISITION COMES TO AN END WHEN A NOTIFICATION FOR ACQUISITION OF THE LAND IS PUBLISHED AND THE LAND V ESTS ABSOLUTELY IN THE STATE GOVERNMENT WITH EFFECT FROM THE DATE ON WHICH THE N OTICE IS SO PUBLISHED. FROM THE ABOVESAID PROVISION OF THE 1948 ACT, IT IS CLEAR THAT THE REQUISITION OF THE LAND IS NOT A TRANSFER BECAUSE THE OWNERSHIP REMAINS WITH THE ASSESSEE/OWNER. THE REQUISITION OF THE LAND IS ONLY TAKING OF POSSESSION OF THE LAND BY THE STATE GOVERNMENT FOR THE PURPOSE SPECIF IED IN S. 3(1) OF THE 1948 ACT, THEREBY THE OWNERS OF THE LAND ARE DEPRIVED FR OM THE USE AND ENJOYMENT OF THE LAND. IN THE CASE IN HAND, THE REQUISITION T OOK PLACE ON 23RD APRIL, 1976 AND IT CAME TO AN END ON 7TH APRIL, 1990 WHEN THE L AND IN QUESTION WAS ACQUIRED BY ISSUING A NOTIFICATION UNDER S. 4 OF TH E SAID ACT. THE COMPENSATION PAYABLE AGAINST THE REQUISITION IS ONL Y TO COMPENSATE THE OWNERS OF THE PROPERTY FOR DEPRIVING THEM FROM USE AND ENJOYMENT OF THE LAND AND BUILDING. THEREFORE, THE SAID COMPENSATION RECE IVED BY THE OWNERS FOR REQUISITION OF THE LAND IS NOT CAPITAL IN NATURE BE CAUSE IT IS NOT AGAINST THE TRANSFER OF THE LAND OR TRANSFER OF ANY RIGHT BY TH E ASSESSEES TO THE STATE, BECAUSE IT IS NOT A VOLUNTARY TRANSFER BY THE ASSES SEES TO THE GOVERNMENT BUT ONLY AS PER THE PROVISION OF STATUTE. MOREOVER, THE SAID COMPENSATION IS ALSO NOT AN INCOME OF THE OWNER/ASSESSEES BECAUSE IT IS NEITHER A RENT NOR RECEIPT IN LIEU OF LOSS OF INCOME OR TRANSFER OF ANY RIGHT BY THE ASSESSEES. THEREFORE, THE COMPENSATION RECEIVED FOR REQUISITION CANNOT BE TAXED AS AN INCOME OF THE ASSESSEES UNDER THE IT ACT. EVEN OTHERWISE, WHEN TH E COMPENSATION WHICH IS NOT AGAINST THE TRANSFER OF THE PROPERTY (COMPULSOR Y ACQUISITION), THEN THE SAME CANNOT BE INCLUDED AS CONSIDERATION FOR COMPUT ATION OF CAPITAL GAIN AND THE SAME CANNOT BE TAXED AS INCOME OF THE ASSESSEE UNDER ANY OTHER HEAD. SENAIRAM DOONGARMALL VS. CIT (1961) 42 ITR 392 (SC) AND CIT VS. D.P. ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 10 - SANDU BROS. CHEMBUR (P) LTD. (2005) 193 CTR (SC) 57 8: (2005) 273 ITR 1 (SC) APPLIED.' G) ADDL. CIT V. TARACHAND (1980) 123 ITR 567 (PAT) 'SINCE THE LAND HAS BEEN RECORDED IN THE OFFICIAL R ECORDS AS AGRICULTURAL LAND, IF THE DEPARTMENT WANTED TO SHOW THAT THE ENTRY WAS WRONG, IT SHOULD HAVE GIVEN SOME CONCRETE FACTS IN THAT DIRECTION. FOR EX AMPLE, IT COULD HAVE SHOWN THAT THE LAND LAY WITHIN THE MUNICIPAL LIMITS OF TH E TOWN OF RANCH/ OR THAT THE ASSESSEE HAD MADE HIS ENTIRE PLOT OF LAND INTO PARC ELS AND WAS SELLING EACH ONE OF THEM FOR THE PURPOSE OF CONSTRUCTING A HOUSE THEREON. THE FACT THAT THE PURCHASER HAS PURCHASED IT FOR THE PURPOSE OF CONST RUCTING HIS HOUSE HAS NO RELEVANCE, BECAUSE SO FAR AS THE SELLER IS CONCERNE D, HE WILL BE DEEMED TO HAVE PARTED WITH THE AGRICULTURAL LAND IN TH E FORM OF AGRICULTURAL LAND, UNLESS IT IS PROVED OTHERWISE. THE DEPARTMENT HAS NOT BROUGHT UP ANY SUCH MATERIAL ON THE RECORD BY WHICH IT COULD BE SA ID THAT THE CRITERIA ADOPTED BY THE TRIBUNAL FOR DETERMINING THE CHARACTER OF TH E AGRICULTURAL LAND WAS WRONG.' 11. PRAYER: WE MOST HUMBLY PRAY BEFORE YOUR HONOURS TO DELETE T HE IMPUGNED ADDITION MADE BY THE LEARNED AO WHICH IS ABSOLUTELY UNLAWFUL, BAD-IN -LAW BASED ON CONJUNCTURE, SURMISES AND WITHOUT APPRECIATING THE TRUE AND CORR ECT FACTS OF THE CASE IN A PROPER MANNER. SHOULD YOUR HONOURS FEEL THAT THERE ARE CERTAIN JUD ICIAL PRONOUNCEMENTS WHICH ARE CONTRARY TO WHAT WE HAVE SUBMITTED HEREIN ABOVE, WE MOST HUMBLY REQUEST TO PROVIDE US AN OPPORTUNITY TO DISTINGUISH THE FACTS OF THE A PPELLANT WITH THE FACTS OF THOSE CASES AND THEREBY GRANT ONE MORE OPPORTUNITY OF PERSONAL HEARING. YOUR HONOURS WOULD BE KIND ENOUGH IN ACCEPTING THE SUBMISSION OF THE APPELLANT TOGETHER WITH ALL THE RELEVANT DOCUMENTARY EVIDENCE S AND THE JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE APPELLANT AND FOR THAT WE SHALL EVER REMAIN GRATEFUL. THANKING YOU VERY TRULY YOURS SD/- CHARTERED ACCOUNTANTS ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 11 - 3.1. ON THE OTHER HAND, LD.SR.DR SHRI ROOP CHAND VE HEMENTLY OPPOSED THE SUBMISSIONS MADE BY THE LD.COUNSEL FOR THE ASSE SSEE AND HE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE LD.CIT(A) DECIDED THE ISSUE, BY OB SERVING AS UNDER:- 10. DECISION : I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE APPELLANT. IN THIS CASE THREE I SSUES HAVE BEEN AGITATED. THEY ARE:- A) FINANCIAL YEAR IN WHICH THE LAND WAS COMPULSORILY ACQUIRED. B) WHETHER THE LAND WAS CAPITAL ASSET OR NOT. C) WHETHER THE APPELLANT QUALIFIED FOR EXEMPTION U/S.1 0(37) OF THE IT ACT. A) FROM THE ASSESSMENT RECORD, IT IS SEEN THAT IN RES PECT OF LAND ACQUIRED BY GIDC RESULTING IN CAPITAL GAINS, T HE FOLLOWING FACTS EMERGE: SR.NO. PARTICULARS/DETAILS DATE 1 DATE OF NOTIFICATION 15.03.2008 2. DATE OF PURCHASE 11.03.2008 3. DATE OF ACQUISITION AND HANDING OVER OF THE LAND 15.02.2009 THE ABOVE ARE BASED ON THE CERTIFICATE DATED 21.12. 2011 ISSUED BY DIVISIONAL MANAGER, GIDC AND RELIED UPON BY THE AO. ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 12 - THE APPELLANT HAS NOW PRODUCED A CERTIFICATE FROM D EPUTY COLLECTOR AND SPECIAL LAND ACQUISITION OFFICER. GI DC DATED 16- 3-2011 IN SUPPORT OF HIS CONTENTION THAT THE PLOT O F LAND WAS ACTUALLY ACQUIRED BY GIDC, ANKLESHWAR ON 27-10-2010 . THE APPELLANT HAD NOT RAISED THIS ISSUE DURING THE COUR SE OF ASSESSMENT PROCEEDINGS. HOWEVER, IT IS SEEN THAT OUT OF THE T OTAL SALE CONSIDERATION RECEIVED BY THE APPELLANT, 64,10,250/- WAS RECEIVED ON 23.03.2009 AND 8,03,996/- WAS RECEIVED ON 31.03.2011. THEREFORE, THE POSSESSION OF THE PROPERTY IN QUESTI ON HAS BEEN GIVEN ON 15.02.2009 AND COMPENSATION HAS BEEN RECEI VED ON 23.03.2009 WHICH IMPLIES THAT PART PERFORMANCE AS P ER SEC.53A OF THE TRANSFER OF PROPERTY ACT HAS BEEN DONE AND THER EFORE IN VIEW OF SEC.2(47) IT AMOUNTS TO TRANSFER. THEREFORE, GA INS ARISING FROM THE COMPULSORY ACQUISITION OF THE LAND HAVE TO BE T AXED IN THE YEAR UNDER CONSIDERATION, I.E. IN Y 2009-10. FURTHERMO RE, SECTION 45(4) OF THE IT ACT CLEARLY STATES THAT WHERE THE C APITAL GAIN ARISES FROM THE TRANSFER OF A CAPITAL ASST, BEING A TRANSF ER BY WAY OF COMPULSORY ACQUISITION UNDER ANY LAW, THE CAPITAL G AIN COMPUTED WITH REFERENCE TO THE COMPENSATION AWARDED IN THE F IRST INSTANCE SHALL BE CHARGEABLE AS INCOME UNDER THE HEAD CAPIT AL GAINS OF THE PREVIOUS YEAR IN WHICH SUCH COMPENSATION OR PAR T THEREOF WAS FIRST RECEIVED. THE CONSIDERATION WAS RECEIVED FOR THE FIRST TIME ON 23.03.2009 AND POSSESSION WAS GIVEN ON 15.02.2009 W HICH IS EVIDENT FROM THE LETTER DATED 21.12.2011 RECEIVED F ROM THE DIVISIONAL MANAGER, GIDC, ANKLESHWAR STATING THAT IT IS TO INFORM THAT THE SECTION-4 NOTIFICATION UN DER LAND ACQUISITION ACT OF 6 VILLAGES OF TALUKA, VAGHARA DI ST. BHARUCH WAS ISSUED ON 25.03.2008 IN WHICH LANDS OF VILLAGE VADADALA SPECIFICALLY SURVEY NO.62 WERE INCLUDED. FURTHER YOU MAY PLEASE NOTE THAT SURVEY NO.62 ADMEASURING 08-14-00 H-A-SQ.MTRS. WAS HANDED OVER TO GIDC BY CONSENT AGREEMENT ON 15-2-2009. THE KHATADAR WHO H AS SIGNED THE CONSENT AGREEMENT IS SHRI JAGDISHBHAI LABHUBHAI GADHIA. ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 13 - THEREFORE FOR THIS REASON ALSO, THE CAPITAL GAINS F OR ACQUISITION OF LAND WOULD ARISE IN AY 2009-10. (B) THE NEXT ISSUE TO BE DECIDED IS WHETHER THE ASS ET IS A CAPITAL ASSET OR NOT. THE AO IN THE ASSESSMENT ORDER HAS D ISCUSSED AT LENGTH WHY THE LAND BELONGING TO THE APPELLANT IS A CAPITAL ASSET AND WHY HE IS NOT ELIGIBLE FOR EXEMPTION U/S.10(37) OF THE IT ACT. AT THE COST OF REPETITION IT MAY BE STATED HERE THA T THE GUJARAT GOVT. HAD DECLARED VIDE NOTIFICATION DT 25-03-2008 DECLARED ITS INTENTION TO ACQUIRE THE SAID LAND FOR DEVELOPMENT OF GIDC. THE SAID NOTIFICATION WAS RECORDED BY THE GRAM PANCHAYA T IN THEIR RECORD VIDE ENTRY NO.1877 DATED 1/8/2008 IN FORM NO .6. HENCE IT IS AN UNDISPUTED FACT THAT THE LAND SITUATED AT SUR VEY NO.62 VILLAGE VADADLA, TALUKA VAGHARA, DISTRICT BHARUCH BELON GING TO THE APPELLANT CAME UNDER THE NOTIFIED AREA AS PER NOTIF ICATION NO.GIDC/JAME (J-AA)/SEC.6/DAHEJ-2/1412, GIDC GANDHI NAGAR. THE INCLUSION OF THE AGRICULTURE LAND BEING SURVEY NO.62 VILLAGE VADADALA TALUKA, VAGHARA DIST.BHARUCH WAS SITUATED IN NOTIFIED AREA AND THIS HAS BEEN CONFIRMED IN THE LETTER DATE D 21.12.2011 OF SPECIAL LAND ACQUISITION OFFICER. ANKLESHWAR, BHAR UCH. THE APPELLANT HAS TAKEN THE PLEA THAT THE POPULATIO N OF THE VILLAGE IN WHICH THE LAND WAS SITUATED WAS BELOW 3,000 AS P ER THE LAST CENSUS AND THEREFORE THE LAND WILL NOT FALL WITHIN THE DEFINITION OF CAPITAL ASSET U/S.2(14) OF THE IT ACT. IN THE FIRS T INSTANCE, THE APPELLANT HAS NOT PROVIDED ANY EVIDENCE TO THIS EFF ECT ALTHOUGH IN HIS SUBMISSION, IT IS STATED THAT THE SAME IS BEING ENCLOSED. EVEN OTHERWISE, THE ARGUMENT OF THE APPELLANT IS MISPLAC ED IT IS THE POPULATION OF THE NOTIFIED AREA WHICH IS RELEVANT A ND NOT OF THE VILLAGE IN WHICH THE LAND IS SITUATED- AND THE NOTI FIED AREA COMPRISES OF SIX VILLAGES. IT HAS NOT BEEN ESTABLI SHED BY THE APPELLANT THAT THE TOTAL POPULATION OF THE SIX VILL AGES IN THE NOTIFIED ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 14 - AREA WAS BELOW 10,000 IN THE LAST CENSUS. THE ARGU MENT, THEREFORE, DOES NOT HELP THE APPELLANT. IN VIEW OF THESE FACTS, I AM OF THE CONSIDERED OPIN ION THAT THE LAND BELONGING TO THE APPELLANT WAS SITUATED IN THE AREA NOTIFIED BY GIDC AND HENCE IT WAS A CAPITAL ASSET AS PER PROVIS IONS OF SEC.2(14) OF THE IT ACT. (C) THE LAST ISSUE TO BE ADJUDICATED IS WHETHER THE PROVISIONS OF SECTION 10(37) OF THE IT ACT WAS APPLICABLE TO THE APPELLANTS CASE AND WHETHER THE APPELLANT HAD FULFILLED CONDITIONS STIPULATED IN CLAUSE-2 OF SECTION 10(37) OF THE IT ACT THAT LAND MUST HAVE BEEN USED FOR AGRICULTURAL PURPOSE DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. THE AP PELLANT HAD PURCHASED THE LAND ON 11.03.2008 AND HAD HANDED OVE R THE POSSESSION OF THE LAND TO GIDC ON 15.03.2009 AS IS EVIDENT FROM THE DIVISIONAL MANAGER, GIDC ANKLESHWARS LETTER DA TED 21.12.2011. THIS PROVES THAT THE LAND WAS IN THE P OSSESSION OF THE APPELLANT FOR ONLY ONE YEAR AND HENCE THE INCOME CH ARGEABLE TO TAX UNDER THE HEAD CAPITAL GAINS ARISING FROM THE TRANSFER OF AGRICULTURAL LAND SITUATED IN THE NOTIFIED AREA CAN NOT BE HELD TO BE EXEMPT FROM TAXATION U/S.10(37)(II). SECTION 10(37 ) STIPULATES THAT THE APPELLANT OR HIS PARENTS SHOULD HAVE CARRIED ON OR USED THE LAND FOR AGRICULTURAL PURPOSES DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER WHICH IS CERTAINLY NOT POSSIBLE IN THE APPELLANTS CASE AS THE LAND WAS IN POSSESSION OF THE APPELLANT FOR LESS THAN A YEAR BEFORE THE DATE OF TRANSFER AND HENCE COULD NOT HAVE BEEN USED FOR AGRICULTURAL PUR POSES BY THE APPELLANT FOR TWO YEAR IMMEDIATELY PRECEDING THE DA TE OF TRANSFER. EVEN, COPY OF 7/12 ON RECORD CLEARLY ESTABLISHES TH AT THE IMPUGNED LAND WAS NOT USED FOR AGRICULTURAL PURPOSES SINCE 2 008-2009. ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 15 - SINCE THE CONDITIONS MENTIONED IN SECTION 10(37) IS NOT SATISFIED, THE APPELLANTS INCOME FROM ACQUISITION OF LAND IS NOT EXEMPT U/S.10(37) OF THE IT ACT. 11. THE APPELLANT HAS ALSO RELIED ON CERTAIN CASE LAWS WHOSE FACTS ARE CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE A PPELLANTS CASE AND HENCE ARE NOT RELEVANT. 12. IN VIEW OF THE ABOVE DISCUSSION, THE A.OS AC TION IN BRINGING TO TAX THE AMOUNT OF 57,10,250/- ( 64,10,250 - 7,00,000) TO TAX AS SHORT TERM CAPITAL GAIN IN AY 2009-10 IS UPHELD. 4.1. AS PER SECTION 45(1) OF THE ACT, ANY PROFITS O R GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PRE VIOUS YEAR SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD CAPITAL GA INS, AND SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHI CH THE TRANSFER TOOK PLACE. 4.2. FROM THE PLAIN READING OF THE SECTION IT IS CL EAR THAT THERE SHOULD BE A CAPITAL ASSET AND TRANSFER OF SUCH CAPITAL ASSET SHOULD BE EFFECTED IN THE PREVIOUS YEAR. IN THE CASE IN HAND, GIDC ACQUIRED THE LAND OF THE ASSESSEE UNDER LAND ACQUISITION ACT. THE CONTENTIO N OF THE ASSESSEE IS THAT THE LAND BEING AN AGRICULTURAL LAND CANNOT BE TREATED AS CAPITAL ASSET IN VIEW OF THE EXCLUSION PRESCRIBED U/S.2(14)(III) OF THE ACT. IT IS NOT IN DISPUTE THAT PRIOR TO ACQUISITION, NOTIFICATION ISS UED U/S.2(4) OF THE LAND ACQUISITION ACT PROPOSING TO ACQUIRE THE LAND, THE LAND IN QUESTION WAS AGRICULTURAL LAND IN REVENUE RECORDS. HOWEVER, OBJ ECTION OF THE AO IS ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 16 - THAT NO AGRICULTURAL ACTIVITY WAS CARRIED OUT BY TH E ASSESSEE IN RESPECT OF ASSTT.YEARS 2008-09 TO 2010-11. HOWEVER, IN THE AY 2007-08, THERE IS A NOTING OF CULTIVATION OF KAPAS. IT IS RECORDED B Y THE AO THAT AN AMOUNT OF RS.1,28,20,500/- WAS RECEIVED JOINTLY WITH SHRI BHARATBHAI VANMALIBHAI PATEL ON 23/03/2009 FROM GUJARAT GOVERN MENT. THE AO TREATING THE LAND AS CAPITAL ASSET AND COMPUTED THE SHORT-TERM CAPITAL GAIN AMOUNTING TO RS.57,10,250/-. IN OUR CONSIDER ED VIEW, BOTH THE AUTHORITIES BELOW HAVE MISDIRECTED THEMSELVES IN RE ACHING TO THE CONCLUSION THAT THE LAND ACQUIRED BY THE GIDC IS A CAPITAL ASSET IN VIEW OF THE FACT THAT THE AREA IN WHICH THE LAND SITUATE D IS NOTIFIED BY THE APPROPRIATE AUTHORITY AS A DEVELOPMENT AREA. BOTH THE AUTHORITIES BELOW HAVE FAILED TO CONSIDER THE NATURE OF THE LAND PRIO R TO ACQUISITION AND NOTIFICATION BY THE APPROPRIATE AUTHORITY. THE H ONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF GORDHANBHAI KAHANDAS DALWADI VS. CIT REPORTED AT 127 ITR 664(GUJ.) HAS HELD AS UNDER:- 6. IT HAS BEEN OBSERVED BY THE SUPREME COURT IN CWT VS . OFFICER- IN-CHARGE (COURT OF WARDS), PAIGAH 1976 CTR (SC) 404 : (1976) 105 IT R 133 (SC) THAT IF THE LAW HAS NOT BEEN CORRECTLY APPRECIATED BY THE TRIBUNAL, ITS APPRECIATION OF FACTS IS BOUND TO BE AFFECTED BY THE WRONG APPROACH TO THE EVIDENCE. NOW, IN THE INSTANT CASE, THE TRIBUNAL HAS HELD AGAINST THE ASSESSEE BECAUSE PERM ISSION TO SELL THE LAND FOR NON- AGRICULTURAL USE WAS OBTAINED. THIS COURT HAS POINT ED OUT IN CIT VS. MANILAL SOMNATH (1977) 106 ITR 917 (GUJ) THAT THE PERMISSIO N GRANTED BY THE REVENUE AUTHORITIES UNDER S. 63 OF THE BOMBAY TENANCY AND A GRICULTURAL LANDS ACT CLEARLY GOES TO SHOW THAT IN CASE THE LAND DID NOT CEASE TO BE AGRICULTURAL LAND, THE PERMISSION WOULD BE TREATED AS CANCELLED AND, THERE FORE, THE SALE IN FAVOUR OF THE PARTICULAR PURCHASER WOULD BE INFRUCTUOUS AND THE L AND WOULD REVERT TO THE ASSESSEE AS AGRICULTURAL LAND. IN SUCH AN EVENTUALITY, THE L AND WOULD STILL CONTINUE TO BE AGRICULTURAL LAND BECAUSE THE PERMISSION TO SELL TO A NON-AGRICULTURIST WOULD BE ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 17 - TREATED AS CANCELLED. IT HAS TO BE BORNE IN MIND TH AT THE CORRECT TEST THAT HAS TO BE APPLIED IS WHETHER ON THE DATE OF THE SALE THE LAND WAS AGRICULTURAL LAND OR NOT. BECAUSE AFTER THE SALE THE PURCHASER WAS GOING TO P UT THE LAND TO NON-AGRICULTURAL USE, IT DOES NOT MEAN THAT THE LAND HAD CEASED TO B E AGRICULTURAL LAND AT THE DATE OF SALE. THE CRUCIAL DATE FOR THE PURPOSE OF FINDING O UT THE CHARACTER OF THE LAND IS THE DATE OF SALE AND THE QUESTION THAT HAS TO BE ASKED IS WHETHER ON THE DATE OF SALE THE LAND WAS AGRICULTURAL LAND OR NOT. HOWEVER, WE FIND THAT WHAT HAS WEIGHED WITH THE TRIBUNAL, INTER ALIA, IS THE FACT THAT AFTER THE SA LE THE PURCHASER WAS GOING TO USE THE LAND FOR NON- AGRICULTURAL PURPOSES AND IT IS IN TH E LIGHT OF WHAT WAS GOING TO HAPPEN IN FUTURE THAT THE TRIBUNAL HELD THAT THE LAND WAS NON- AGRICULTURAL IN CHARACTER AT THE RELEVANT TIME. IT MUST BE BORNE IN MIND, AS WAS HEL D BY THIS COURT IN CHHOTALAL PRABHUDAS VS. CIT (1979) 10 CTR (GUJ) 69 : (1979) 1 16 ITR 631 (GUJ), THAT IF THE LAND IS ACTUALLY USED FOR AGRICULTURAL PURPOSES AS INDICATED IN MANILAL SOMNATH'S CASE (SUPRA) OR BY THE SUPREME COURT IN BEGUMPET PA LACE'S CASE (1976) 105 ITR 133 (SC), AT LEAST, PRIMA FACIE IT CAN BE SAID TO BE LA ND WHICH IS EITHER ACTUALLY USED OR ORDINARILY USED OR MEANT TO BE USED FOR AGRICULTURA L PURPOSES. IF IT IS ACTUALLY USED AT THE RELEVANT DATE FOR AGRICULTURAL PURPOSES AND THE RE ARE NO SPECIAL FEATURES, AS FOR EXAMPLE, A BUILDING SITE BEING ACTUALLY USED AS A S TOP-GAP ARRANGEMENT FOR AGRICULTURAL PURPOSE, IT WOULD BE AGRICULTURAL LAND . POTENTIAL USE OF THE LAND AS NON- AGRICULTURAL LAND IS TOTALLY IMMATERIAL. ENTRIES IN THE RECORD OF RIGHTS ARE GOOD PRIMA FACIE EVIDENCE REGARDING LAND BEING AGRICULTURAL AN D IF THE PRESUMPTION RAISED EITHER FROM ACTUAL USER OF THE LAND OR FROM ENTRIES IN REV ENUE RECORDS IS TO BE REBUTTED, THERE MUST BE MATERIAL ON THE RECORD TO REBUT THE PRESUMP TION. THE APPROACH OF THE FACT- FINDING AUTHORITIES, NAMELY, THE IT AUTHORITIES AND THE TRIBUNAL, SHOULD BE TO CONSIDER THE QUESTION FROM THE POINT OF VIEW OF THE PRESUMPT ION ARISING FROM ENTRIES IN THE RECORD OF RIGHTS OR ACTUAL USER OF THE LAND AND THE N CONSIDER WHETHER THAT PRESUMPTION IS DISLODGED BY THE PRESENCE OF OTHER F ACTORS IN THE CASE. 7. IN CHHOTALAL PRABHUDAS' CASE (SUPRA), IN 1952 NON- AGRICULTURAL USE OF THE LAND WAS DISCONTINUED AND PERMISSION WAS OBTAINED FOR US E OF LAND FOR PURELY AGRICULTURAL PURPOSES AND THEREAFTER FOR SOME YEARS AFTER 1952 T HE LAND WAS ALLOWED TO LIE FALLOW AND THEREAFTER AGRICULTURAL OPERATIONS WERE RESUMED ON THE LAND, AND IN THE LIGHT OF THOSE FACTS, THIS COURT HELD THAT THE LAND WAS AGRI CULTURAL LAND. IN THAT CASE, THE LAND WAS USED FOR BRICK-MAKING FOR NEARLY TWO DECADES BE FORE IT WAS RETURNED TO AGRICULTURAL OPERATIONS IN 1952. IN THE INSTANT CAS E, WE HAVE NON-AGRICULTURAL USE FOR BRICK-MAKING FOR A PERIOD OF TWO YEARS AND THEREAFT ER THE LAND WAS ALLOWED TO LIE FALLOW AND AGRICULTURAL OPERATIONS WERE STARTED AND BAJRI WAS GROWN IN THIS LAND IN THE REVENUE YEAR 1964-65. WE MAY POINT OUT THAT UND ER THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948, 'LAND' HAS BEEN DEFIN ED IN S. 2, SUB-S. (8), TO MEAN, INTER ALIA, LAND WHICH IS USED FOR AGRICULTURAL PUR POSES OR WHICH IS SOMETIMES USED AS ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 18 - AGRICULTURAL LAND, BUT IS ALLOWED TO LIE FALLOW, IS AGRICULTURAL LAND FOR THE PURPOSES OF THE TENANCY ACT, AND IT IS THAT AGRICULTURAL LAND F OR THE SALE OF WHICH TO A NON- AGRICULTURIST PERMISSION UNDER S. 63 IS NECESSARY A ND IT, IS IN THE LIGHT OF THIS DEFINITION WHICH HAS OBVIOUSLY TO BE BORNE IN MIND WHEN PERMISSION UNDER S. 63 IS OBTAINED, THAT THE QUESTION HAS TO BE APPROACHED. I T MUST BE POINTED OUT THAT IN CIT V.MANILAL SOMNATH (SUPRA), THIS COURT HAS OBSERVED THAT MERELY BECAUSE LAND IS SURROUNDED BY DEVELOPMENT OR THAT DEVELOPMENT HAS C AUGHT UP WITH THE LAND IN QUESTION IT SHOULD NOT BE HELD THAT THE LAND HAD CE ASED TO BE AGRICULTURAL LAND. IT IS NOBODY'S CASE THAT PERMISSION FOR NON-AGRICULTURAL USE UNDER S. 63 OF THE BOMBAY LAND REVENUE CODE HAD BEEN OBTAINED BY THE VENDOR, THE ASSESSEE, BEFORE HE SOLD THE LAND ON JANUARY 30, 1969, TO THE PURCHASER. THE IMP ORTANCE OF THE POTENTIAL NON- AGRICULTURAL USE OF THE LAND MAY BE REFLECTED IN TH E PRICE WHICH THE PURCHASER IS PREPARED TO PAY FOR THE AGRICULTURAL LAND, BUT POTE NTIAL NON- AGRICULTURAL USE DOES NOT ALTER THE CHARACTER OF THE LAND FROM AGRICULTURAL L AND TO NON-AGRICULTURAL LAND. IN THE INSTANT CASE, IT HAS BEEN FOUND THAT THE ASSESSMENT WHICH WAS BEING PAID WAS FOR AGRICULTURAL USE OF THE LAND AND THE SPECIAL RATES WHICH ARE FIXED FOR NON-AGRICULTURAL USE WERE NOT BEING PAID BY THE ASSESSEE PRIOR TO TH E DATE OF THE SALE. UNDER THESE CIRCUMSTANCES, SINCE THE CORRECT TESTS WHICH ARE RE QUIRED BY LAW TO BE APPLIED FOR DETERMINING AS TO OF WHAT DATE THE CHARACTER OF THE LAND IS TO BE FOUND AND, SECONDLY, IN THE LIGHT OF WHAT TESTS THE QUESTION HAS TO BE D ECIDED, HAVE NOT BEEN APPLIED BY THE TRIBUNAL, WE ARE APPLYING THE CORRECT TESTS TO THE FACTS FOUND AND, IN OUR OPINION, APPLYING THE PRINCIPLES LAID DOWN BY THIS COURT IN CWT VS. NARANDAS MOTILAL (1971) 80 ITR 39 (GUJ), MANILAL SOMNATH'S CASE (SUPRA), SM T. CHANDRAVATI ATMARAM PATEL VS. CIT 1978 CTR (GUJ) 211 : (1978) 114 ITR 302 (GU J) AND CHHOTALAL PRABHUDAS VS. CIT (SUPRA), READ IN THE LIGHT OF THE OBSERVATI ONS OF THE SUPREME COURT IN BEGUMPET PALACE'S CASE (SUPRA), IT IS CLEAR THAT TH E TRIBUNAL WAS IN ERROR WHEN IT HELD ON THE FACTS FOUND THAT IN LAW THE LAND WAS NO T AGRICULTURAL LAND. THE CONCLUSION THAT IT WAS NOT AGRICULTURAL LAND WAS A MIXED QUEST ION OF LAW AND FACT AND THE APPROACH OF THE TRIBUNAL ADOPTED IN COMING TO THIS CONCLUSION WAS NOT IN STRICT ACCORDANCE WITH LAW. SINCE THE REVENUE RECORDS SHOW ED THAT THIS WAS AGRICULTURAL LAND, THE APPROACH SHOULD HAVE BEEN WHETHER THE PRE SUMPTION THAT THIS WAS AGRICULTURAL LAND WAS BEING REBUTTED BY ANY EVIDENC E ABOUT USER OF THE LAND OR ABOUT THE CHARACTER OF THE LAND HAVING BEEN CHANGED PRIOR TO THE DATE OF THE SALE. NO SUCH EVIDENCE HAS BEEN POINTED OUT FROM THE RECORDS OF T HIS CASE OR FROM THE FACTS FOUND BY THE TRIBUNAL AND CONSIDERATIONS OF OTHER DEVELOPMEN T IN THE LOCALITY OR OTHER LOCALITY IN THE VICINITY OF THE LAND ARE NOT PROPER CONSIDER ATIONS TO BE APPLIED, AS WAS POINTED OUT IN MANILAL SOMNATH'S CASE (SUPRA). ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 19 - 4.3. FURTHER, THE HONBLE GUJARAT HIGH COURT RENDER ED IN THE CASE OF CIT VS. SIDDHARTH J.DESAI REPORTED AT 139 ITR 628 ( GUJ.) HAS LAID DOWN CERTAIN FACTORS TO CONSIDER WHETHER THE LAND IS AGR ICULTURAL OR NOT. IN THE SAID CASE, THE FACTORS AS ENUMERATED BY THE HONBLE JURISDICTIONAL HIGH COURT ARE AS UNDER:- 11. ON A CONSPECTUS OF THESE CASES, SEVERAL FACTORS ARE DISCERNIBLE WHICH WERE CONSIDERED AS RELEVANT AND WHICH WERE WEIGHED AGAIN ST EACH OTHER WHILE DETERMINING THE TRUE NATURE AND CHARACTER OF THE LAND. IT MAY B E USEFUL TO EXTRACT FROM THOSE DECISIONS SOME OF THE MAJOR FACTORS WHICH WERE CONS IDERED AS HAVING A BEARING ON THE DETERMINATION OF THE QUESTION. THOSE FACTORS AR E: (1) WHETHER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL AND WHETHER IT WAS SUBJECT TO THE PAYMENT OF LAND REVEN UE ? (2) WHETHER THE LAND WAS ACTUALLY OR ORDINARILY USE D FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEVANT TIME ? (3) WHETHER SUCH USER OF THE LAND WAS FOR A LONG PE RIOD OR WHETHER IT WAS OF A TEMPORARY CHARACTER OR BY WAY OF A STOP-GAP ARRANGE MENT ? (4) WHETHER THE INCOME DERIVED FROM THE AGRICULTURA L OPERATIONS CARRIED ON IN THE LAND BORE ANY RATIONAL PROPORTION TO THE INVESTMENT MADE IN PURCHASING THE LAND ? (5) WHETHER, THE PERMISSION UNDER S. 65 OF THE BOMB AY LAND REVENUE CODE WAS OBTAINED FOR THE NON-AGRICULTURAL USE OF THE LAND ? IF SO, WHEN AND, BY WHOM (THE VENDOR OR THE VENDEE)? WHETHER SUCH PERMISSION WAS IN RESPECT OF THE WHOLE OR A PORTION OF THE LAND ? IF THE PERMISSION WAS IN RESP ECT OF A PORTION OF THE LAND AND IF IT WAS OBTAINED IN THE PAST, WHAT WAS THE NATURE OF TH E USER OF THE SAID PORTION OF THE LAND ON THE MATERIAL DATE ? (6) WHETHER THE LAND, ON THE RELEVANT DATE, HAD CEA SED TO BE PUT TO AGRICULTURAL USE ? IF SO, WHETHER IT WAS PUT TO AN ALTERNATIVE USE ? W HETHER SUCH CESSER AND/OR ALTERNATIVE USER WAS OF A PERMANENT, OR TEMPORARY N ATURE ? ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 20 - (7) WHETHER THE LAND, THOUGH ENTERED IN REVENUE REC ORDS, HAD NEVER BEEN ACTUALLY USED FOR AGRICULTURE, THAT IS, IT HAD NEVER BEEN PL OUGHED OR TILLED ? WHETHER THE OWNER MEANT OR INTENDED TO USE IT FOR AGRICULTURAL PURPOS ES ? (8) WHETHER THE LAND WAS SITUATE IN A DEVELOPED ARE A ? WHETHER ITS PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF T HE LANDS IN THE ADJOINING AREA WERE SUCH AS WOULD INDICATE THAT THE LAND WAS AGRICULTUR AL ? (9) WHETHER THE LAND ITSELF WAS DEVELOPED BY PLOTTI NG AND PROVIDING ROADS AND OTHER FACILITIES? (10) WHETHER THERE WERE ANY PREVIOUS SALES OF PORTI ONS OF THE LAND FOR NON- AGRICULTURAL USE ? (11) WHETHER PERMISSION UNDER S. 63 OF THE BOMBAY T ENANCY AND AGRICULTURAL LANDS ACT, 1948, WAS OBTAINED BECAUSE THE SALE OR INTENDE D SALE WAS IN FAVOUR OF A NON- AGRICULTURIST ? IF SO, WHETHER THE SALE OR INTENDED SALE TO SUCH NON-AGRICULTURIST WAS FOR NON-AGRICULTURAL OR AGRICULTURAL USER ? (12) WHETHER THE LAND WAS SOLD ON YARDAGE OR ON ACR EAGE BASIS ? (13) WHETHER AN AGRICULTURIST WOULD PURCHASE THE LA ND FOR AGRICULTURAL PURPOSES AT THE PRICE AT WHICH THE LAND WAS SOLD AND WHETHER TH E OWNER WOULD HAVE EVER SOLD THE LAND VALUING IT AS A PROPERTY YIELDING AGRICULTURAL PRODUCE ON THE BASIS OF ITS YIELD ? AT THE RISK OF REPETITION, WE MAY MENTION THAT NOT ALL OF THESE FACTORS WOULD BE PRESENT OR ABSENT IN ANY CASE AND THAT IN EACH CASE ONE OR MORE OF THOSE FACTORS MAY MAKE APPEARANCE AND THAT THE ULTIMATE DECISION WILL HAVE TO BE REACHED ON A BALANCED CONSIDERATION OF THE TOTALITY OF CIRCUMSTANCES. 12. ONE MORE THING BEFORE WE TURN TO THE FACTS AND CIRC UMSTANCES OF THE PRESENT CASE. WHILE APPLYING THE TEST AS TO WHETHER AN AGRICULTUR IST WOULD HAVE PURCHASED THE LAND FOR AGRICULTURAL PURPOSES AT THE PRICE REALISED BY THE SALE AND WHETHER THE OWNER WOULD HAVE EVER SOLD THE SAME BY VALUING IT AS PROP ERTY YIELDING AGRICULTURAL PRODUCE ON THE BASIS OF ITS YIELD, IT MUST BE REMEMBERED TH AT THE VALUATION OF AN AGRICULTURAL LAND IS A COMPLEX MATTER. SEVERAL FACTORS ENTER INT O ACCOUNT IN DETERMINING THE VALUE OF AN AGRICULTURAL LAND SUCH AS THE NATURE OF THE S OIL AND ITS FERTILITY, THE TYPE OF CROP FOR WHICH THE LAND IS SUITED OR IS ADAPTABLE, THE S IZE OF THE LAND AND THE PRACTICABILITY OF THE USE OF MECHANISED IMPLEMENTS IN ORDER TO PRO CURE BETTER YIELD, THE PROXIMITY TO VILLAGE AND AVAILABILITY OF TRANSPORT FACILITIES, T HE AVAILABILITY OF IRRIGATION FACILITY AND ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 21 - POWER AND, ABOVE ALL, THE SCARCITY OF THE LAND IN T HE AREA. PERSONAL, SOCIAL AND ECONOMIC CONSIDERATIONS ALSO INFLUENCE, PERCEPTIBLY OR OTHERWISE, THE VALUATION OF AN AGRICULTURAL LAND IN OUR COUNTRY. ALL THESE FACTORS WILL HAVE TO BE INVESTIGATED INTO AND A FINDING OF FACT WILL HAVE TO BE RECORDED ON E ACH OF THE RELEVANT ASPECTS BY THE FACT-FINDING AUTHORITIES. IN THE ABSENCE OF SUCH FI NDINGS, NO PRESUMPTION CAN ORDINARILY BE RAISED, MERELY BECAUSE HIGH PRICE IS REALISED, THAT THE LAND COULD NEVER HAVE BEEN SOLD AS AN AGRICULTURAL LAND FOR GENUINE AGRICULTURAL USER OR PURPOSES. 4.4. WE FIND THAT BOTH THE AUTHORITIES BELOW HAVE FAILED TO TAKE NOTE OF THESE FACTORS AND HAVE DECIDED THIS ISSUE MECHANICA LLY, THEREFORE THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND T HE MATTER IS RESTORED BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT. THE AO IS HEREBY DIRECTED TO VERIFY THE DOCUMENTS AS FURNISHED BY TH E ASSESSEE IN SUPPORT OF ITS CLAIM THAT THE LAND WAS AGRICULTURAL BEFORE ACQUISITION AND DECIDE THIS ISSUE IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASES OF CIT VS. SIDDHARTH J.DESA I(SUPRA) AND GORDHANBHAI KAHANDAS DALWADI VS. CIT(SUPRA). 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 13 TH DAY OF FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/ 02 /2015 2..,.../ T.C. NAIR, SR. PS ITA NO.1503/AHD /2013 JAGDISHBHAI GADHIYA VS. ITO ASST.YEAR 2009-10 - 22 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-IV, SURAT 5. 78& 45 , 45. , 3 / DR, ITAT, AHMEDABAD 6. 8:;<* / GUARD FILE. / BY ORDER, '7 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 11.2.15 (DICTATION-PAD 10 -PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.2.15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.13.2.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.2.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER