Mr. Jairam G. Kimmane, Bengaluru V. Deputy Commissioner Of Income Tax, Central Circle- 1(3), Bengaluru

ITA 2026/BANG/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7206 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-08-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 19-09-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR BENGALURU
• Keywords: Capital asset; Cost of acquisition; Onus to prove; Capital Gains
• Section: 2(14); 153A; 13; 63; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI A K GARODIA, ACCOUNTANT MEMBER ITA NO. 2026/BANG/2019 ASSESSMENT YEAR : 2013 - 14 MR. JAIRAM G KIMMANE, #387/4,ASTER CHAMBERS, 1 ST FLOOR,13 TH CROSS, SADASHIVANAGAR, BENGALURU 560 080. PAN: ABHPJ 1551F VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(3), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI NARENDRA SHARMA, ADVOCATE. RESPONDENT BY : SHRI PRADEEP KUMAR, ADDL .CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 26.08.2020 DATE OF PRONOUNCEMENT : 04 .0 9 .2020 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 29.7.2019 OF THE CIT(APPEALS)-11, BENGALURU RELATING TO ASSESSME NT YEAR 2013-14. 2. THE ASSESSEE IS AN INDIVIDUAL. CONSEQUENT TO SE ARCH U/S. 132 OF THE INCOME-TAX ACT, 1961 [THE ACT] CONDUCTED IN THE CA SE OF ASSESSEE ON 24.11.2015, PROCEEDINGS U/S. 153A OF THE ACT WERE I NITIATED FOR AY 2013-14 BY ISSUE OF A NOTICE DATED 21.11.2016. THE ASSESSE E IN RESPONSE TO THE SAID NOTICE FILED RETURN OF INCOME FOR AY 2013-14 D ECLARING AN INCOME OF RS.14,91,410. ITA NO. 2026/BANG/2019 PAGE 2 OF 18 3. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT ASSESSEE RECEIVED A SUM OF RS.2 CRORES ON SALE OF 0 .40.0 HECTARES (HA) OF LAND AT AGARSURE VILLAGE, ALIBAUG TALUK, RAIGAD DIS T., MAHARASHTRA (HEREINAFTER REFERRED TO THE PROPERTY OR LAND). SINCE CAPITAL GAIN ON SALE OF THE PROPERTY HAD NOT BEEN DISCLOSED IN THE RETUR N OF INCOME, THE AO CALLED UPON THE ASSESSEE TO EXPLAIN WHY THE SAME WA S NOT DECLARED. THE ASSESSEE TOOK A STAND THAT THE PROPERTY WAS AN AGRI CULTURAL LAND AND THEREFORE WAS NOT A CAPITAL ASSET AND CAPITAL GAIN ON SALE OF AGRICULTURAL LAND WAS NOT EXIGIBLE TO TAX. THE CONTENTIONS OF T HE ASSESSEE IN THIS REGARD WERE AS FOLLOWS:- LAND UNDER CONTENTION IS SITUATED AT AGARSURE VILL AGE, ALIBAUG TALUK, RAIGAD DISTRICT, MAHARASHTRA. THE SUBJECT LAND IS AGRICULTURAL LAND BOTH AT THE T IME OF PURCHASE AND SALE. THE ASSESSEE IS AN AGRICULTURIST. HE SOLD A PARCEL OF LAND 0.30 HECTARES. THE BUYER IS ANOTHER AGRICULTURIST. THE POPULATION OF THE PLACE I.E. AGARSURE VILLAGE I S BELOW THE THRESHOLD LIMIT IN TERMS OF SECTION. 2(14)(III) (A). THE PARCEL OF LAND IS SITUATED NEARLY 13 KMS AWAY FROM ALIBAUG, DISTRICT HEADQUARTERS. THE LAND PARCE L IS NOT A CAPITAL ASSET U/S 2(14) OF THE ACT. 4. IT IS NOT IN DISPUTE THAT THE PROPERTY WAS SOL D BY THE ASSESSEE TO ONE MRS. LEENA MASCARENHAS FOR A SUM OF RS.2 CRORES , IN THE PREVIOUS YEAR RELEVANT TO AY 2013-14. THE AO ACCEPTED THE F ACT THAT THE ASSESSEE WAS AN AGRICULTURIST AND THE LAND IN QUESTION WAS A N AGRICULTURAL LAND AS PER THE REVENUE RECORDS. HE WAS, HOWEVER, OF THE VIEW THAT THE MAIN BUSINESS ITA NO. 2026/BANG/2019 PAGE 3 OF 18 OF ASSESSEE WAS TRADING IN ARECANUT. IN THIS REGAR D, THE AO ALSO FOUND THAT THE ASSESSEE HAD AGRICULTURAL LAND AT MOODIGERE, CH IKMAGALUR DISTRICT, KARNATAKA AND HAD BEEN DECLARING HUGE INCOME FROM 1 44 ACRES OF PLANTATION OWNED BY HIM OVER THE PAST SEVERAL AYS. HE ALSO FOUND THAT THE PERSON TO WHOM THE ASSESSEE SOLD THE LAND WAS MRS.L EENA MASCARENHAS, WIFE OF SHRI RUDOPH MASCARENHAS AND THAT THE ASSESS EE AND THE BUYERS HUSBAND CARRIED ON SEVERAL REAL ESTATE PROJECTS IN BENGALURU. THE AO ALSO FOUND THAT THOUGH THE ASSESSEE OWNED THE LAND IN QU ESTION FOR MORE THAN 16 YEARS, HE HAD NOT OFFERED ANY AGRICULTURAL INCOM E FROM THE SAID LAND. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS NOT BROU GHT ANY MATERIAL ON RECORD TO SHOW THAT HE HAS CONDUCTED AGRICULTURAL O PERATIONS/ACTIVITIES OVER THE PROPERTY. THE AO ALSO FOUND THAT THE LANDS IN THE VICINITY OF ASSESSEES LAND WERE LEISURE AND ENTERTAINMENT SPOTS WHERE THE RE WERE LOT OF HOLIDAY HOMES, HOME STAY AND RESORTS. HE ALSO OBSERVED THA T THE MANDWA BEACH WHICH WAS A WEEK-END DESTINATION FOR PEOPLE FROM MU MBAI WAS LESS THAN 1 KM OF THE ASSESSEES PROPERTY AND KIHIM BEACH, WHIC H WAS ALSO A HOLIDAY WEEK-END HOLIDAY DESTINATION FOR PEOPLE FROM MUMBAI , WAS 1 KMS. FROM THE ASSESSEES PROPERTY. HE ALSO OBSERVED THAT THE SALE VALUE OF THE PROPERTY @ RS.2 CRORES IS NOT A VALUE WHICH IS GENE RALLY OFFERED BY PERSONS WHO ARE AGRICULTURISTS AND WHO PURCHASE AGR ICULTURAL LAND. THE AO ALSO OBSERVED THAT THE ASSESSEE DID NOT BRING ANY D OCUMENTARY EVIDENCE ON RECORD TO SUGGEST BASIC AGRICULTURAL OPERATIONS LIKE TILLING, PLOUGHING, WEEDING, PLANTING, ETC. WERE CONDUCTED DURING THE P ERIOD OF OWNERSHIP NOR WAS THERE EVIDENCE TO SHOW THAT THE ASSESSEE DEPLOY ED PEASANTS TO CONDUCT AGRICULTURAL OPERATIONS. 5. UNDER SECTION 2(14) OF THE ACT, 'CAPITAL ASSET' MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT INCLUDE ......... ITA NO. 2026/BANG/2019 PAGE 4 OF 18 (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND S ITUATE- (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JUR ISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNI CIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BO ARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAN D ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIG URES HAVE BEEN PUBLISHED BEFORE THE 1ST DAY OF THE PREVIOUS YEAR ; OR (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MOR E THAN EIGHT KILOMETRES FROM THE LOCAL LIMITS OF ANY MUNICIPALIT Y OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CE NTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANISATION OF THAT AREA AND OTHER RELEVANT CONSID ERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFIC IAL GAZETTE; 6. THE ASSESSEE POINTED OUT THAT AGRICULTURAL LAND IN INDIA IS OUTSIDE THE PURVIEW OF THE DEFINITION OF CAPITAL ASSET U/S. 2(14)(III) OF THE ACT. THE ASSESSEE TOOK A STAND THAT AGRICULTURAL ACTIVITIES WERE CARRIED OUT ON THE PROPERTY AND WAS THEREFORE AGRICULTURAL LAND. THE AO DID NOT DISPUTE THE FACT THAT THE PROPERTY IS NOT SITUATE WITHIN THE JU RISDICTION OF A MUNICIPALITY OR A CANTONMENT BOARD AND THEREFORE DID NOT FALL WITHI N THE EXCLUSION CLAUSE (A) MENTIONED ABOVE OR THAT IT WAS WITHIN 8 KMS FRO M THE LOCAL LIMITS OF ANY MUNICIPALITY. THERE IS THEREFORE NO DISPUTE THAT T HE PROPERTY DID NOT FALL WITHIN CLAUSES OF SEC.2(14)(III)(A) OR (B) OF THE A CT. IT NEEDS TO BE CLARIFIED THAT THE MERE FACT THAT A LAND IS SITUATE IN AN AREA OUTSIDE THE AREA REFERRED TO IN CLAUSE (A) OR (B) OF SEC.2(14)(III) OF THE ACT, DOES NOT AUTOMATICALLY MAKE IT AN AGRICULTURAL LAND AND SUCH LAND HAS TO BE USED FOR AGRICULTURAL PURPOSES AS LAID DOWN IN SEVE RAL JUDICIAL PRONOUNCEMENTS . 7. THE AO TOOK THE VIEW THAT TO BE CALLED AN AGRICULTU RAL LAND, THE LAND MUST HAVE BEEN USED FOR AGRICULTURAL PURPOSES. ACCORDING TO THE AO, THE ASSESSEE DID NOT ESTABLISH USE OF THE LAND FOR AGRICULTURAL PURPOSE AND OTHER CIRCUMSTANCES SHOWED THAT THE ASSESSEES LAND WAS NOT ITA NO. 2026/BANG/2019 PAGE 5 OF 18 AGRICULTURAL LAND AND WAS SOLD AS A CAPITAL ASSET A ND NOT AS AGRICULTURAL LAND AND HENCE THE GAIN ON SALE OF THE PROPERTY WAS CHARGEABLE TO TAX AS INCOME UNDER THE HEAD CAPITAL GAIN. THE FOLLOWIN G WERE THE RELEVANT OBSERVATIONS OF THE AO:- 7.16 IN SUMMATION THE ASSESSEE'S CLAIM OF EXEMPT ION ON SALE OF LAND AT AGARSURE IS NOT ADMISSIBLE U/S 2(14) OF THE INCOME TAX ACT FOR THE FOLLOWING REASONS. THE ASSESSEE HAS NOT MERELY AN AGRICULTURIST. RATHE R HE HAS MASSIVE TRADING OPERATION IN ARECANUT ACROSS INDIA. THUS THE ASSESSEE HAS INCOME FROM SOURCES OTHER THA N AGRICULTURAL OPERATIONS. THE BUYER IS ALSO NOT A MERE AGRICULTURIST, BUT IS RATHER INVOLVED IN REAL ESTATE ACTIVITIES. THE ASSESSEE AND SHRI.RUDOPH MASCARENHAS ARE PARTNE RS IN SEVERAL REAL-ESTATE PROJECTS LIKE M/S. ROYAL PARK ( P) LTD; M/S. ROYAL NANDI RESORTS (P) LTD ETC. THE ASSESSEE HAS NOT PRODUCED A SHRED OF EVIDENCE I N FAVOUR OF CONDUCTING AGRICULTURAL OPERATIONS AT AGA RSURE VILLAGE. THE AGARSURE LAND PARCEL IS IN CLOSE PROXIMITY TO S EVERAL HOLIDAY DESTINATIONS, BOTH ON THE SEAWARD SIDE AND THE LANDWARD SIDE. THE AGARSURE LAND IS TOO SMALL AND TOO FAR AWAY FRO M THE CHIKMAGALUR-SHIMOGA HUB OF HIS OPERATIONS TO SUSTAI N A VIABLE AGRICULTURAL OPERATION. THE VALUATION OF PROPERTY IN THE VICINITY IS ATTRIB UTED TO THE ENTERTAINMENT AND LEISURE RELATED NATURE OF LAND-US E. THE SALE VALUE OF THE PROPERTY AT RS. 3 CRORES PER ACRE IS PROHIBITIVELY COSTLY FOR FETCHING A FAIR RETURN ON INVESTMENT EXCEPT THROUGH COMMERCIAL EXPLOITATION OF THE LAND. ITA NO. 2026/BANG/2019 PAGE 6 OF 18 7.17. THUS, A CONSTELLATION OF FACTORS AS CONSID ERED ABOVE GOES ON TO SUGGEST THAT THE ASSESSEE HAS NOT PURCHASED T HE LAND AT AGARSURE WITH A VIEW TO USE IT FOR AGRICULTURAL PUR POSES. IN LIGHT OF THE AFOREMENTIONED FACTS AND CIRCUMSTANCES OF TH E CASE TAKEN TOGETHER WITH THE DECISION OF THE HON'BLE SUPREME C OURT IN THE CASE OF SARIF ABIBI IBRAHIM 204 ITR 631 (SC) (1993) , THE LAND AT AGARSURE IS TREATED AS NON-AGRICULTURAL. CONSEQUENT LY, THE SAME IS BROUGHT TO TAX AS LONG - TERM CAPITAL GAINS. THE LONG TERM CAPITAL GAINS IS WORKED OUT AS UNDER: SALE CONSIDERATION (F.Y.2012- 13) RS.2,00,00,000 LESS: COST OF ACQUISITION (F.Y.1996-97) RS.659286 INDEXED COST OF ACQUISITION 659286 X 852 RS.18,41,678 305 LONG TERM CAPITAL GAINS RS.1,81,58,332 8. ON APPEAL BY THE ASSESSEE, THE CIT(A) CONCURRED WITH THE VIEW OF THE AO. HENCE THIS APPEAL BY THE ASSESSEE BEFORE T HE TRIBUNAL. 9. THE LEARNED COUNSEL FOR ASSESSEE TOOK US THROUGH THE REASONS ASSIGNED BY THE AO FOR COMING TO A CONCLUSION THAT THE PROPERTY IS NOT AGRICULTURAL LAND. HE SUBMITTED THAT NONE OF THE F ACTORS POINTED OUT BY THE AO IN THE ORDER OF ASSESSMENT ARE SUFFICIENT TO COM E TO A CONCLUSION THAT THE PROPERTY IS NOT AGRICULTURAL LAND. HE FIRSTLY POINTED OUT THAT THE CLASSIFICATION OF THE PROPERTY IN THE REVENUE RECOR DS IS AGRICULTURAL LAND AND THE ASSESSEE HAS BEEN PAYING LAND REVENUE CHARGES L EVIED BY THE GOVERNMENT. ACCORDING TO HIM THIS FACTOR WAS A VER Y VITAL FACTOR IN FAVOUR OF THE ASSESSEE. HE POINTED OUT THAT THE POTENTIAL USE OF THE PROPERTY FOR NON RESIDENTIAL PURPOSE DUE TO PRESENCE OF AMUSEMEN T AND RECREATIONAL ACTIVITIES IN THE VICINITY OF THE PROPERTY WAS AN I RRELEVANT CONSIDERATION. IN THIS REGARD, HE RELIED ON THE FOLLOWING PASSAGES IN THE DECISION OF HONBLE ITA NO. 2026/BANG/2019 PAGE 7 OF 18 MADRAS HIGH COURT IN THE CASE OF MRS.SAKUNTHALA VEDACHALAM -VS- THE ASSISTANT COMMISSIONER OF INCOME TAX, 369 ITR 558 ( MADRAS) :- 13. ACCORDING TO THE TRIBUNAL THAT IF THE ABOVE TE STS ARE APPLIED, THE ASSESSEES COULD NOT SATISFY ANY OF THE CONDITIO NS EXCEPT CONDITION NOS.1,5,11 AND 12. THE TRIBUNAL HELD THAT THE ASSESSEES COULD NOT PROVE THAT THE LANDS WAS ACTUALLY OR ORDI NARILY USED FOR AGRICULTURAL PURPOSES. THIS REASONING DOES NOT APPE AR TO BE CORRECT IN VIEW OF THE ABOVE-SAID DECISION OF THE G UJARAT HIGH COURT, WHEREIN IT WAS CLEARLY HELD IN CLAUSE (1) IN PARAGRAPH 11 THAT WHETHER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL AND WHETHER IT WAS SUBJECT TO THE PAYM ENT OF LAND REVENUE HAS TO BE CONSIDERED FOR GRANT OF EXEMPTION . 14. THUS IT IS EVIDENT FROM THE ABOVE, WHICH CLEARL Y STATES THAT ANY ONE OF THE ABOVE FACTORS CAN BE PRESENT IN A CA SE TO QUALIFY FOR THE BENEFIT OF CLASSIFICATION AS AGRICULTURAL L ANDS. IN THIS CASE, THE ASSESSEES HAVE QUALIFIED UNDER CLAUSE 11(1) SIN CE AS PER THE ADANGAL RECORDS, THESE LANDS WERE CLASSIFIED AS AGR ICULTURAL LANDS AND THE ASSESSEES HAVE ALSO PAID REVENUE KIST, NAME LY, REVENUE PAYMENT. THEREFORE, THE TRIBUNAL HAS MISCONSTRUED T HE JUDGMENT OF THE GUJARAT HIGH COURT (SUPRA) THAT ALL CONDITIO NS LAID DOWN IN PARAGRAPH 11 SHOULD BE SATISFIED, WHICH IS NOT A CO RRECT INTERPRETATION. 15. .. 16. ONCE THE TRIBUNAL HAS ACCEPTED THAT THE CLASSIF ICATION OF LANDS AS PER THE REVENUE RECORDS ARE AGRICULTURAL LANDS, WHICH ARE EVIDENCED BY THE ADANGAL AND THE LETTER OF THE TAHS ILDAR AND SATISFIES OTHER CONDITIONS OF SECTION 2(14) OF THE INCOME TAX ACT, WE ARE OF THE VIEW THAT THE TRIBUNAL HAS MISDIRECTE D ITSELF AS STATED ABOVE. 17. YET OTHER REASON GIVEN BY THE TRIBUNAL IS THAT THE ADJACENT LANDS ARE PUT TO COMMERCIAL USE BY WAY OF PLOTS AND THEREFORE, THE VERY CHARACTER OF THE LANDS OF THE ASSESSEES IS DOU BTED AS AGRICULTURAL IN NATURE. THE MANNER IN WHICH THE ADJ ACENT LANDS ARE USED BY THE OWNER THEREIN IS NOT A GROUND FOR THE T RIBUNAL TO COME TO A CONCLUSION THAT THE ASSESSEES' LANDS ARE NOT AGRICULTURAL IN NATURE. THE REASON GIVEN BY THE TRIBUNAL THAT TH E ADJACENT LANDS HAVE BEEN DIVIDED INTO PLOTS FOR SALE WOULD N OT MEAN THAT ITA NO. 2026/BANG/2019 PAGE 8 OF 18 THE LANDS SOLD BY THE ASSESSEES WERE FOR THE PURPOS E OF DEVELOPMENT OF PLOTS. ALSO THE REASONING GIVEN BY T HE TRIBUNAL 'NO AGRICULTURISTS WOULD HAVE PURCHASED THE LAND SO LD BY THE ASSESSEE FOR PURSUING ANY AGRICULTURAL ACTIVITY' IS BASED ON MERE CONJECTURES AND SURMISES. 18. THE PLEA OF THE LEARNED STANDING COUNSEL APPEAR ING FOR THE REVENUE THAT THERE WAS NO AGRICULTURAL OPERATIONS P RIOR TO THE DATE OF SALE IS OF NO AVAIL AS THE DEFINITION UNDER SECTION 2(14) OF THE INCOME TAX ACT HAS THE ANSWER TO SUCH A PLEA RA ISED. FURTHER MORE, IT IS ALSO ON RECORD THAT THE LANDS ARE AGRIC ULTURAL LANDS CLASSIFIED AS DRY LANDS, FOR WHICH KIST HAS BEEN PA ID. 19. THE VIEW OF THE ASSESSEE IS FORTIFIED BY THE DE CISION REPORTED IN (1937) 32 ITR 466 (COMMISSIONER OF INCOME-TAX V. RAJA BENOY KUMAR SAHAS ROY), WHEREIN, IT IS HELD AS FOLL OWS: 'THERE WAS AUTHORITY FOR THE PROPOSITION THAT THE E XPRESSION 'AGRICULTURAL LAND' MENTIONED IN ENTRY 21 OF LIST I I OF THE SEVENTH SCHEDULE TO THE GOVERNMENT OF INDIA ACT, 19 35, SHOULD BE INTERPRETED IN ITS WIDER SIGNIFICANCE AS INCLUDI NG LANDS WHICH ARE USED OR ARE CAPABLE OF BEING USED FOR RAISING A NY VALUABLE PLANTS OR TREES OR FOR ANY OTHER PURPOSE OF HUSBAND RY (SEE SAROJINIDEVI V. SHRI KRISHNA ANJANNEYA SUBRAHMANYAM AND OTHER(1) AND MEGH RAJ V. ALLAH RAKHIA (2)).' 10. THE LEARNED COUNSEL FOR ASSESSEE ALSO PLACED RE LIANCE ON DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SMT. DEBBIE ALEMAO AND JOAQUIM ALEMAO , REPORTED IN (2011) 331 ITR 59 (BOM.) WHEREIN IT W AS HELD THAT WHERE THE LAND IS SHOWN IN REVENUE RECORD AS AGRICULTURAL LAND AND NO PERMISSION WAS TAKEN FOR CONVERSION OF LAND, IT IS IMMATERIAL WHETHER ANY AGRICULTURAL INCOME IS SHOWN IN THE RET URN OR NOT, THE GAINS FROM SALE ARE EXEMPT FROM TAXATION. 11. BASED ON THE AFORESAID DECISIONS, THE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE FACT THAT AGRICULTURAL INCOME WA S NOT SHOWN FROM THE PROPERTY IS NOT OF ANY RELEVANCE. HIS FURTHER SUBM ISSION WAS THAT THE FACT THAT THE LAND IN QUESTION WAS CAPABLE OF BEING USED FOR AGRICULTURAL ITA NO. 2026/BANG/2019 PAGE 9 OF 18 PURPOSES AND WAS USED AS SUCH BY THE ASSESSEE. HIS THIRD SUBMISSION WAS THAT PRESENCE OF ALL THE FACTORS REFERRED TO IN THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SARIFABIBI MOHAMMED IBRAHIM & ORS. V. CIT (INFRA) FOR CONSIDERING A LAND AS AGRICULTURAL LAND SHOULD NOT BE INSISTED AND ONLY CUMULATIVE EFFECT OF VARIOUS CIRC UMSTANCES HAS TO BE SEEN. IT WAS SUBMITTED BY HIM THAT THE CLASSIFICAT ION OF LAND IN THE REVENUE RECORDS AS AGRICULTURAL LAND AND PAYMENT OF TAXES WOULD BE THE MOST RELEVANT FACTOR. IN THIS REGARD, THE LD. COUNSEL F OR THE ASSESSEE BROUGHT TO OUR NOTICE THE TAX RECEIPTS PAID BY THE ASSESSEE WH ICH ARE PAGES 44 TO 49 OF ASSESSEES PB. AT PAGE 44 IS THE RECEIPT DATED 30.4.2012 WHICH MENTIONS THAT GRASS IS THE CROP OVER THE PROPERTY I N QUESTION AND AT PAGE 45 IS ANOTHER FILLED FORM 12 WHERE IT IS SHOWN THAT PADDY IS CULTIVATED OVER THE LAND. THIS RECEIPT IS DATED 2.6.2004. ANOTHE R FACTOR POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE SALE DEED ITSELF MENTIONS THAT WHAT WAS SOLD BY THE ASSESSEE WAS NOT JUST LAND, BUT ALS O STANDING TREES AND OVER THE LAND. ACCORDING TO HIM, ALL THE AFORESAID EVIDENCE WOULD BE SUFFICIENT TO COME TO THE CONCLUSION THAT THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND. 12. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN CIT V. VENKATESHWARA HOSPITAL 106 TAXMANN.COM 263 ( SC) WHEREIN A VIEW WAS TAKEN THAT MERELY BECAUSE ADJACE NT LANDS WERE DIVIDED INTO PLOTS FOR SALE, IT CANNOT BE CONCLUDED THAT TH E ASSESSEES LAND WAS NOT IN THE NATURE OF AGRICULTURAL LAND. THE CLASSIFICA TION OF THE REVENUE RECORDS WAS HELD TO BE SUFFICIENT TO CONCLUDE THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND. 13. THE LD. DR REITERATED THE STAND OF REVENUE AS C ONTAINED IN THE ORDERS OF REVENUE AUTHORITIES. 14. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS. THERE IS NO DISPUTE IN THIS APPEAL THAT THE PROPERT Y THAT WAS SOLD BY THE ITA NO. 2026/BANG/2019 PAGE 10 OF 18 ASSESSEE DID NOT FALL WITHIN CLAUSES OF SEC.2(14)(I II)(A) OR (B) OF THE ACT. THE MERE FACT THAT A LAND IS SITUATE IN AN AREA OUTSIDE THE AREA REFERRED TO IN CLAUSE (A) OR (B) OF SEC.2(14)(III) OF THE ACT, DOES NOT AUTOMATICALLY MAKE IT AN AGRICULTURAL LAND AND SUCH LAND HAS TO B E USED FOR AGRICULTURAL PURPOSES AS LAID DOWN IN SEVERAL JUDIC IAL PRONOUNCEMENTS . THE HONBLE SUPREME COURT IN SARIFABIBI MOHMED IBRAHIM VS. CIT 204 ITR 631 (SC) LAID DOWN THE PRINCIPLES TO BE FOLLOWED IN DECIDING THE QUESTION AS TO WHAT CAN BE CONSTRUED A S AGRICULTURAL LAND AS UNDER:- (I) THE FIRST PROPOSITION LAID DOWN IN THE SAID D ECISION WAS, WHETHER A LAND IS AN AGRICULTURAL LAND OR NOT IS ESSENTIALLY A QUESTION OF FACT. SEVERAL TESTS HAVE BEEN EVOLVED IN THE DECISIONS OF THIS COURT AND THE HIGH COURTS, BUT ALL OF THEM ARE MORE IN THE NA TURE OF GUIDELINES. THE QUESTION HAS TO BE ANSWERED IN EACH CASE HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THAT CASE. THERE MAY BE FACTORS BOTH FOR AND AGAINST A PARTICULAR POINT OF VIEW. THE COURT HAS TO ANSWER THE QUESTION ON A CONSIDERATION OF AL L OF THEM - A PROCESS OF EVALUATION. THE INFERENCE HAS TO BE DRAW N ON A CUMULATIVE CONSIDERATION OF ALL THE RELEVANT FACTS. (II) IN AS MUCH AS AGRICULTURAL LAND IS EXEMPTED F ROM THE PURVIEW OF THE DEFINITION OF THE EXPRESSION 'ASSETS', IT IS 'I MPOSSIBLE TO ADOPT SO WIDE A TEST AS WOULD OBVIOUSLY DEFEAT THE PURPOS E OF THE EXEMPTION GIVEN'. THE IDEA BEHIND EXEMPTING THE AGR ICULTURAL LAND IS TO ENCOURAGE CULTIVATION OF LAND AND THE AGRICUL TURAL OPERATIONS. 'IN OTHER WORDS THIS EXEMPTION HAD TO BE NECESSARIL Y GIVEN A MORE RESTRICTED MEANING. WHAT IS REALLY REQUIRED TO BE SHOWN IS :- ITA NO. 2026/BANG/2019 PAGE 11 OF 18 (A) THE CONNECTION WITH AN AGRICULTURAL PURPOSE AN D USER AND NOT THE MERE POSSIBILITY OF USER OF LAND BY SOME PO SSIBLE FURTHER OWNER OR POSSESSOR, FOR AN AGRICULTURAL PUR POSE. (B) IT IS NOT THE MERE POTENTIALITY BUT ITS ACTUAL CONDITION AND INTENDED USER WHICH HAS TO BE SEEN FOR PURPOSES OF EXEMPTION, (EMPHASIS ADDED). (C) THE PERSON CLAIMING AN EXEMPTION OF ANY PROPER TY OF HIS FROM THE SCOPE OF HIS ASSETS MUST SATISFY THE CONDI TIONS OF THE EXEMPTION. (D) THE DETERMINATION OF THE CHARACTER OF LAND, AC CORDING TO THE PURPOSE FOR WHICH IT IS MEANT OR SET APART AND CAN HE USED, IS A MATTER WHICH OUGHT TO BE DETERMINED ON T HE FACTS OF EACH PARTICULAR CASE. (E) THE FACT THAT THE LAND IS ASSESSED TO THE LAND REVENUE AS AGRICULTURAL LAND UNDER THE STATE REVENUE LAW IS CE RTAINLY A RELEVANT FACT BUT IF IS NOT CONCLUSIVE. 15. THE HONBLE SUPREME COURT IN THE CASE OF SMT. SARIFABIBI MOHAMED IBRAHIM AND OTHERS (SUPRA) APPROVED THE TESTS LAID DOWN BY THE HONBLE GUJARAT HIGH COURT AND HONBLE BOMBAY HIGH COURT IN THE FOLLOWING CASES AS UNDER:- 16. THE DECISION OF GUJARAT HIGH COURT IN COMMISSIONER OF INCOME TAX, GUJARAT-II V. SIDDHARTH J. DESAI 139 I. T.R. 628 , RELIED UPON STRONGLY BY THE LEARNED COUNSEL FOR THE APPELLANT, REVIEWED THE SEVERAL EARLIER DECISIONS OF THE GUJAR AT HIGH COURT AS WELL AS THE DECISION OF THIS COURT IN BEGUMPET PALACE AND HAS EVOLVED THE FOLLOWING 13 FACTORS/INDICATORS APPLYIN G WHICH THE QUESTION HAS TO BE ANSWERED. THE 13 FACTORS ARE THE FOLLOWING :- (1) WHETHER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL AND WHETHER IT WAS SUBJECT TO THE PAYM ENT OF LAND REVENUE? (2) WHETHER THE LAND WAS ACTUALLY OR ORDINARILY US ED FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEVANT TIME ? ITA NO. 2026/BANG/2019 PAGE 12 OF 18 (3) WHETHER SUCH USER OF THE LAND WAS FOR A LONG P ERIOD OR WHETHER IT WAS OF A TEMPORARY CHARACTER OR BY WAY O F A STOP-GAP ARRANGEMENT? (4) WHETHER THE INCOME DERIVED FROM THE AGRICULTUR AL OPERATIONS CARRIED ON IN THE LAND BORE ANY RATIONAL PROPORTION TO THE INVESTMENT MADE IN PURCHASING THE LAND? (5) WHETHER, THE PERMISSION UNDER SECTION 65 OF TH E BOMBAY LAND REVENUE CODE WAS OBTAINED FOR THE NON-AGRICULT URAL USE OF THE LAND? IF SO, WHEN AND BY WHOM (THE VENDO R OR THE VENDEE)? WHETHER SUCH PERMISSION WAS IN RESPEC T OF THE WHOLE OR A PORTION OF THE LAND? IF THE PERMISSI ON WAS IN RESPECT OF A PORTION OF THE LAND AND IF IT WAS OBTA INED IN THE PAST, WHAT WAS THE NATURE OF THE USER OF THE SAID P ORTION OF THE LAND ON THE MATERIAL DATE? (6) WHETHER THE LAND, ON THE RELEVANT DATE, HAD CE ASED TO BE PUT TO AGRICULTURAL USE? IF SO, WHETHER IT WAS PUT TO AN ALTERNATIVE USE? WHETHER SUCH CESSER AND/OR ALTERNA TIVE USER WAS OF A PERMANENT OR TEMPORARY NATURE? (7) WHETHER THE LAND, THOUGH ENTERED IN REVENUE RE CORDS, HAD NEVER BEEN ACTUALLY USED FOR AGRICULTURE, THAT IS, IT HAD NEVER BEEN PLOUGHED OR TILLED? WHETHER THE OWNER ME ANT OR INTENDED TO USE IT FOR AGRICULTURAL PURPOSES? (8) WHETHER THE LAND WAS SITUATE IN A DEVELOPED AR EA? WHETHER ITS PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF THE LANDS IN THE ADJOINING AREA WERE SUCH AS WOU LD INDICATE THAT THE LAND WAS AGRICULTURAL? (9) WHETHER THE LAND ITSELF WAS DEVELOPED BY PLOTT ING AND PROVIDING ROADS AND OTHER FACILITIES? (10) WHETHER THERE WERE ANY PREVIOUS SALES OF PORT IONS OF THE LAND FOR NON-AGRICULTURAL USE? (11) WHETHER PERMISSION UNDER SECTION 63 OF THE BO MBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948, WAS OBTAI NED BECAUSE THE SALE OR INTENDED SALE WAS IN FAVOUR OF A NON- AGRICULTURIST WAS FOR NON-AGRICULTURAL OR AGRICULTU RAL USE? ITA NO. 2026/BANG/2019 PAGE 13 OF 18 (12) WHETHER THE LAND WAS SOLD ON YARDAGE OR ON AC REAGE BASIS? (13) WHETHER AN AGRICULTURIST WOULD PURCHASED THE LAND FOR AGRICULTURAL PURPOSES AT THE PRICE AT WHICH THE LAN D WAS SOLD AND WHETHER THE OWNER WOULD HAVE EVER SOLD THE LAND VALUING IT AS A PROPERTY YIELDING AGRICULTURAL PROD UCE 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 APPEARAN CE AND THAT THE ULTIMATE DECISION WILL HAVE TO BE REACHED ON A BALANCED CONSIDERATION OF THE TOTALITY OF CIRCUMSTANCES. 17. IN COMMISSIONER OF INCOME-TAX V. V.A. TRIVEDI 172 I.T. R. 95, A DIVISION BENCH OF THE BOMBAY HIGH COURT, OF WHIC H ONE OF US (S.P. BHARUCHA, J.) WAS A MEMBER, CONSIDERED THI S QUESTION AGAIN. IN THIS CASE THE ASSESSEE HAD PURCHASED THE LAND OF AN EXTENT OF SEVEN ACRES IN FEBRUARY 1966. THE LAND WA S COVERED BY THE NAGPUR IMPROVEMENT TRUST SCHEME. IN AUGUST 1966 HE OBTAINED PERMISSION TO CONVERT THE SAID LAND TO NON -AGRICULTURAL USE. IN JUNE 1968 HE ENTERED INTO AN AGREEMENT WITH A HOUSING COOPERATIVE SOCIETY TO SELL THREE ACRES OUT OF IT. THE SALE-DEED WAS EXECUTED IN OCTOBER 1968. IN THIS ASSESSMENT PR OCEEDINGS THE ASSESSEE CLAIMED THAT THE SURPLUS INCOME ARISING FR OM THE SALE OF LAND WAS EXEMPT FROM TAX INASMUCH AS IT WAS AGRICUL TURAL LAND AT THE TIME OF ITS SALE. THE MATTER REACHED THE HIGH C OURT. THE DIVISION BENCH REFERRED TO SEVERAL FACTS ESTABLISHE D FROM THE RECORD. SOME OF THEM SUPPORTED THE ASSESSEE'S STAND WHILE SOME OTHERS MILITATED AGAINST HIS CONTENTION. THE FACTS FOUND IN FAVOUR OF THE ASSESSEE WERE: (1) AT THE TIME OF ITS PURCHA SE BY THE ASSESSEE, THE AJNI LAND WAS AGRICULTURAL LAND; (2) IT HAD BEEN UNDER CULTIVATION BY THE ASSESSEE TILL THE DATE OF ITS SALE, (3) IT CONTINUED TO BE ASSESSED TO LAND REVENUE AS AGRICUL TURAL LAND UNTIL IT WAS SOLD, (4) THE INTENTION OF THE ASSESSEE, WHE N HE PURCHASED IT, WAS TO ACQUIRE AGRICULTURAL LAND FOR AGRICULTUR AL PURPOSES, (5) THE ASSESSEE'S USE OF IT WAS THE NORMAL USE BY AN A GRICULTURIST, (6) IT WAS NOR WITHIN ANY TOWN PLANNING SCHEME, AND (7) NO MATERIALS HAS BEEN PRODUCED TO SHOW ANY DEVELOPMENT OR BUILDING ACTIVITY SURROUNDING IT. THE FACTS WHICH M ILITATED AGAINST THE ASSESSEE'S STAND WERE THREE IN NUMBER - NAMELY: (1) THE LOCATION OR THE AJNI LAND WITHIN THE CORPORATION AN D THE ITA NO. 2026/BANG/2019 PAGE 14 OF 18 IMPROVEMENT TRUST LIMITS; (2) THE ACTION OF THE ASS ESSEE IN OBTAINING ON AUGUST 8, 1966, PERMISSION TO CONVERT THE USER OF THE AJNI LAND TO NON-AGRICULTURAL PURPOSES, AND (3) THE AGREEMENT TO SELL AND THE SALE OF THE AJNI LAND FOR NON-AGRIC ULTURAL, I.E., BUILDING PURPOSES. 18. THE BENCH OBSERVED THAT TO ASCERTAIN THE TRUE C HARACTER AND THE NATURE OF THE LAND, IT MUST BE SEEN WHETHER IT HAS BEEN PUT TO USE FOR AGRICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME PRIOR TO THE RELEVANT DATE AND FURTHER WHETHER ON THE REL EVANT DATE THE LAND WAS INTENDED TO BE PUT TO USE FOR AGRICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME THE FUTURE. EXAMINING THE F ACTS OF THE CASE FROM THE SAID POINT OF VIEW, THE BENCH HELD TH AT THE AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE HOU SING SOCIETY IS THE CRUCIAL CIRCUMSTANCE SINCE IT SHOWED THAT TH E ASSES-SEE AGREED TO SELL THE LAND TO HOUSING SOCIETY ADMITTED LY FOR UTILISATION FOR NON-AGRICULTURAL PURPOSES. THE SALE-DEEDS WERE EXECUTED FOUR MONTHS AFTER THE AGREEMENT OF SALE AND EVEN IF ANY AGRICULTURAL OPERATIONS WERE C ARRIED ON WITHIN THE SAID SPAN OF FOUR MONTHS, - THE BENCH HE LD - IT WAS EVIDENTLY IN THE NATURE OF A STOP-GAP ARRANGEMENT. ON THE DATE THE LAND WAS SOLD, THE BENCH HELD, THE LAND WAS NO LONG ER AGRICULTURAL LAND WHICH IS EVIDENT FROM THE FACT THAT THE ASSESS EE HAD OBTAINED PERMISSION EVEN IN AUGUST 1966 TO CONVERT THE SAID LAND TO NON- AGRICULTURAL PURPOSES. 16. IN THE LIGHT OF THE PRINCIPLES LAID DOWN AS ABO VE LET US EXAMINE THE FACTS OF THE PRESENT CASE TO DECIDE THE CASE AS TO WHETHER THE LAND THAT WAS SOLD BY THE ASSESSEE WAS AGRICULTURAL LAND. IN T HE PRESENT CASE, THE CLAIM OF THE ASSESSEE THAT AGRICULTURAL OPERATIONS WERE CARRIED OUT OVER THE PROPERTY AND THE PROPERTY WAS ACTUALLY USED FOR AGR ICULTURAL PURPOSE WAS SOUGHT TO BE ESTABLISHED BY RELYING ON THE CLASSIFI CATION OF THE PROPERTY IN REVENUE RECORDS. THE REVENUE CONTENDS THAT THERE I S NO EVIDENCE OF THE ASSESSEE HAVING CARRIED OUT AGRICULTURAL ACTIVITIES OVER THE PROPERTY. THE ASSESSEE HAS NOT ESTABLISHED AS TO HOW AGRICULTURAL ACTIVITIES WERE CARRIED OUT AND WHAT EXPENSES WERE INCURRED IN CARRYING OUT AGRICULTURAL OPERATIONS OVER THE PROPERTY. THE REVENUE ALSO CONTENDS THAT THE ASSESSEE HAS NOT ITA NO. 2026/BANG/2019 PAGE 15 OF 18 DECLARED ANY INCOME FROM AGRICULTURE FROM THE PROPE RTY IN QUESTION. THERE IS NO EVIDENCE OF AVAILABILITY OF AGRICULTURAL PROD UCE AND HOW THEY WERE DEALT UTILIZED. THE REVENUE ALSO CONTENDS THAT THE BURDEN OF PROOF THAT THE PROPERTY WAS AGRICULTURAL LAND AT THE TIME OF TRANS FER TO CLAIM EXEMPTION WAS ON THE ASSESSEE. AS ALREADY OBSERVED, THE QUEST ION 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. FACT S AND ALL THE CIRCUMSTANCES ARE TO BE CONSIDERED AS A WHOLE AND A N OVERALL VIEW IS TO BE TAKEN IN DECIDING WHETHER THE LAND WAS AN AGRICULTU RAL LAND. IN A GIVEN CASE, LARGE NUMBER OF CIRCUMSTANCES MAY BE INDICATI VE 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 LAN D. 17. WE WILL NOW APPLY THE TESTS LAID DOWN BY THE HO NBLE GUJARAT HIGH COURT IN THE CASE OF SARIFABIBI MOHAMMED IBRAHIM (SUPRA) WHICH WAS APPROVED BY THE HONBLE SUPREME COURT, TO THE FACTS AND CIRCUMSTANCES OF THE CASE:- 18. FACTORS IN FAVOUR OF THE ASSESSEE: (I) THE LAND IN QUESTION IS ENTERED AS AGRICULTURA L LAND IN REVENUE RECORDS AND IS ASSESSED AS SUCH. (II) THE LAND IS NOT CONVERTED TO NON-AGRICULTURA L USER. (III) THE ASSESSEE AS WELL AS THE PURCHASER ARE AG RICULTURALIST. 19. FACTORS AGAINST THE ASSESSEE: (I) THE LAND IS TOO SMALL FOR CARRYING OUT AGRICUL TURAL OPERATIONS, CONSIDERING THE FACT THAT THE ASSESSEE IS BASICALLY A TRADER IN BETEL NUTS AND CARRIES ON AG RICULTURAL OPERATION IN CHIKAMAGALUR-SHIMOGA, A PLACE FAR AWAY FROM THE LAND AT AGARSURE. (II) THE LAND IS SOLD AT A PRICE COMPARABLE TO TH E PRICE FETCHED BY BUILDING SITES. ITA NO. 2026/BANG/2019 PAGE 16 OF 18 (III) THE PRICE IS SUCH THAT NO BONA FIDE AGRICULTURIST WOULD PURCHASE THE SAME FOR GENUINE AGRICULTURAL OPERATIO NS. (IV) NO EVIDENCE OF AGRICULTURAL OPERATIONS CARRI ED OUT HAVE BEEN PLACED ON RECORD. THE ASSESSEE WAS OWNER OF T HE PROPERTY IN QUESTION FOR 16 YEARS. THE EVIDENCE FI LED REGARDING USE OF THE LAND FOR AGRICULTURAL PURPOSE ARE SPORADIC NOT SUFFICIENT TO DISCHARGE THE BURDEN ON THE ASSESSEE. 20. AS ALREADY MENTIONED, THE QUESTION WHETHER LAND WAS USED FOR AGRICULTURAL PURPOSE OR NOT TO BE CONSIDERED AS AGR ICULTURAL LAND IS A QUESTION OF FACT TO BE DECIDED ON THE BASIS OF FACT S AND CIRCUMSTANCES OF A GIVEN CASE. THE DECISIONS CITED BY THE LEARNED COU NSEL FOR ASSESSEE IN THE CASE OF VENKATESWARA HOSPITAL (SUPRA) IS A CASE WHERE THE HONBLE HIGH COURT OF MADRAS REFUSED TO ENTERTAIN AN APPEAL ON T HE GROUND THAT THE QUESTION WHETHER A PROPERTY IS AGRICULTURAL LAND OR NOT IS ESSENTIALLY A QUESTION OF FACT WHICH ACTION WAS CONFIRMED BY THE HONBLE SUPREME COURT. THE DECISION DOES NOT PER SE LAY DOWN ANY PROPOSITION THAT CLASSIFICATION OF LAND IN THE REVENUE RECORD AS AGRICULTURAL LAND IS CONCLUSIVE TO HOLD THAT THE LAND IN QUESTION IS AGRICULTURAL LAND, AS IS SOUGHT TO BE CANVASSED BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US. AS FA R AS THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF SAKUNTUNALA VEDACHALAM (SUPRA) IT WAS HELD THAT THE USER OF ADJACENT LANDS FOR NON AGRICULTURAL PURPOSES CANNOT BE THE BASIS TO CONCLUDE THAT THE ASSESSEES LANDS CANNOT BE REGARDED AS AGRICULTURAL LANDS. NO SUCH CONCLUSION HAS BEEN DRAWN IN THE PRESENT CASE ON THE BASIS OF POTENTIAL USE FOR OF T HE LAND FOR NON AGRICULTURAL PURPOSE. AS FAR AS THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF CIT VS. SMT. DEBBIE ALEMAO AND JOAQUIM ALEMAO ,(SUPRA) IS CONCERNED, THE RATIO LAID DOWN THEREIN IS THAT WHERE THE LAND IS SHOWN IN REVENUE RECORD AS AGRICULTURAL LAND AND NO PERMISSION WAS T AKEN FOR CONVERSION OF LAND, IT IS IMMATERIAL WHETHER ANY AGRICULTURAL INC OME IS SHOWN IN THE RETURN ITA NO. 2026/BANG/2019 PAGE 17 OF 18 OR NOT. THE BASIS ON WHICH REVENUE AUTHORITIES CAM E TO A CONCLUSION THAT THE PROPERTY IS NOT AGRICULTURAL LAND IN THE PRESEN T CASE IS DIFFERENT FROM THE FACTS OF THE CASE DECIDED BY THE HONBLE BOMBAY HIG H COURT VIZ., THE FACT THAT AGRICULTURAL INCOME FROM THE PROPERTY HAD NOT BEEN DECLARED BY THE ASSESSEE. 21. IF ONE CONSIDERS THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS A WHOLE AND AN OVERALL VIEW IS TO BE TAKEN IN DECID ING WHETHER THE LAND WAS AN AGRICULTURAL LAND, ONE WOULD COME TO A CONCLUSIO N THAT THE PROPERTY CANNOT BE CONSIDERED AS AGRICULTURAL LAND. THOUGH T HE CIRCUMSTANCE THAT THE LAND IS CLASSIFIED AS AGRICULTURAL IN THE REVEN UE RECORDS IS IN FAVOUR OF THE ASSESSEE, IN OUR VIEW, THE OTHER CIRCUMSTANCES POINTED OUT ABOVE OUTWEIGHS ALL OF THE CIRCUMSTANCES IN FAVOUR OF THE ASSESSEE AND ON THE BASIS OF THOSE CIRCUMSTANCES, WE ARE INCLINED TO CO NCLUDE THAT THE PROPERTY WAS NOT AN AGRICULTURAL LAND. WE THEREFORE FIND NO MERITS IN THIS APPEAL AND HENCE DISMISS THE SAME. 22. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF SEPTEMBER, 2020. SD/- SD/- ( A K GARODIA ) ( N.V. VASUDEVAN ) ACCOUNTANT ME M BER VICE PRESIDENT BANGALORE, DATED, THE 4 TH SEPTEMBER, 2020. / DESAI SMURTHY / ITA NO. 2026/BANG/2019 PAGE 18 OF 18 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.