ACIT, CHENNAI V. Smt. Vanitha Manickavasagam, CHENNAI

ITA 2165/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2399 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-04-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 30-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR S MOHARANA
• Assessee Lawyers: G SEETHARAMAN
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 2(14); 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 2164/MDS/2012 (ASSESSMENT YEAR : 2008-09) THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE XIV, CHENNAI - 600 034. (APPELLANT) V. SMT. SAKUNTHALA VEDACHALAM, 231, KILPAUK GARDEN ROAD, CHENNAI - 600 010. PAN : AAAPV 9914 C (RESPONDENT) I.T.A. NO. 2165/MDS/2012 (ASSESSMENT YEAR : 2008-09) THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE XIV, CHENNAI - 600 034. (APPELLANT) V. SMT. VANITHA MANICKAVASAGAM, 231, KILPAUK GARDEN ROAD, CHENNAI - 600 010. PAN : AAAPV 9265 C (RESPONDENT) REVENUE BY : DR. S. MOHARANA, CIT ASSESSEES BY : SHRI G. SEETHARAMA N, CA DATE OF HEARING : 03.04.2013 DATE OF PRONOUNCEMENT : 11.04.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : ASSESSEES IN THESE APPEALS ARE MOTHER AND DAUGHTE R. THEY WERE JOINTLY OWNING LAND MEASURING 59.60 ACRES IN THIRUKAZHUKUNDRAM TALUK, MAHABALIPURAM VILLAGE, KAN CHEEPURAM I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 2 DISTRICT. THEY WERE HOLDING THE PROPERTY SINCE 9.3 .1970. THREE ACRES OUT OF THIS LAND, COMPRISED IN SURVEY NO.91/3B2, WE RE SOLD BY TWO DOCUMENTS TO ONE SHRI R. RAMANUJAM AND ONE MR. SUMA NTH RAMANUJAM DURING THE RELEVANT PREVIOUS YEAR. THE C ONSIDERATION, AS PER THE TWO DOCUMENTS THROUGH WHICH THE SALES WERE EFFECTED TOTALLED TO ` 90 LAKHS, WHEREAS, THE GUIDELINE VALUE THEREOF CAM E TO ` 2,51,80,000/-. ASSESSEES HAD NOT ADMITTED ANY CAPI TAL GAINS IN THEIR RESPECTIVE RETURNS. ONLY INCOME SHOWN BY THE ASSES SEES IN THEIR RETURNS WERE RENTAL AND INTEREST INCOME. 2. ASSESSING OFFICER, WHO BECAME AWARE OF SALE OF T HE LAND THROUGH ANNUAL INFORMATION REPORT, ASKED THE ASSESS EES AS TO WHY CAPITAL GAINS ARISING ON THE SALE THEREOF SHOULD NO T BE TAXED. BOTH THE ASSESSEES, WHO WERE REPRESENTED BY M/S S. VENKA TRAM & CO., REPLIED THAT THE LAND SOLD WAS AGRICULTURAL IN NATU RE AND THE SALES WERE EFFECTED DURING PREVIOUS YEAR ENDED 31.3.2008 AND 31.3.2009. AS PER ASSESSEES, THE AMOUNTS RECEIVED WERE ONLY AD VANCES. THEY COULD NOT EFFECT THE CONVEYANCE THROUGH REGISTERED DOCUMENTS AND THEREFORE, THE AMOUNTS, WHICH WERE ONLY TREATED AS ADVANCE, WERE TRANSFERRED TO CAPITAL ACCOUNT ONLY IN THE YEAR END ED 31.3.2009. HOWEVER, THE ASSESSING OFFICER WAS NOT IMPRESSED WI TH THE ABOVE I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 3 REPLY. ACCORDING TO HIM, THE ENTIRE PIECE OF LAND WAS IN ADVERSE POSSESSION OF ONE SHRI O.P. NAMBIYAR FROM 1970 TILL 13.12.2005, WHO HAD NOT DONE ANY AGRICULTURAL OPERATION IN THE SAID LAND. THERE WAS NO MATERIAL PRODUCED BY THE ASSESSEES THAT ANY AGRI CULTURAL OPERATION WAS CARRIED ON BY THEM ON THIS LAND. AS PER THE A. O., REVENUE AUTHORITIES HAD CLASSIFIED SUCH LAND AS DRY LAND. REPORT OF THE INSPECTOR OF THE DEPARTMENT, WHO WAS DEPUTED TO ENQ UIRE ABOUT THE LAND, SPECIFICALLY MENTIONED THAT THE LANDS MENTION ED WERE KEPT VACANT WITHOUT AGRICULTURAL OPERATIONS, SINCE LONG. THERE WAS A PASSAGE CREATED BY THE ASSESSEES IN THE LAND TO CON NECT THE EXISTING ROAD TO AN ADJACENT LAND, WHICH WERE PLOTTED OUT AN D SOLD AS HOUSING PLOTS. THIS, AS PER ASSESSING OFFICER, WAS EVIDENT FROM THE COPIES OF THE DOCUMENTS EXECUTED BY THE ASSESSEES WHICH CONTA INED SKETCH OF THE PROPERTY. ASSESSEES HAD ALSO NEVER RETURNED AN Y AGRICULTURAL INCOME. HE THUS CONSIDERED THE LAND TO BE NOT AN A GRICULTURAL LAND AND NOT EXEMPT FROM LEVY OF CAPITAL GAINS TAX. 3. VIS--VIS THE CLAIM OF THE ASSESSEES THAT THE AM OUNTS RECEIVED WERE ONLY ADVANCES, VIEW OF THE A.O. WAS THAT THE E NTIRE SALE CONSIDERATION INVOLVED IN THE SALE EFFECTED ON 25.1 0.2007 WAS RECEIVED BY FOUR CHEQUES ON THE SAME DATE. SIMILAR LY, FOR THE SECOND I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 4 SALE EFFECTED ON 6.2.2008, FOUR CHEQUES WERE AGAIN RECEIVED ON THE DATE OF EXECUTION. BASED ON THESE FINDINGS, HE APP LIED SECTION 50C OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AND WO RKED OUT THE LONG TERM CAPITAL GAINS AT ` 1,14,32,900/- FOR EACH OF THE ASSESSEE. 4. BOTH THE ASSESSEES MOVED IN APPEAL BEFORE THE CI T(APPEALS). ARGUMENT OF THE ASSESSEES WAS THAT THEY WERE NEVER MADE AWARE OF THE ENQUIRIES MADE BY THE DEPARTMENT, NOR WERE EVER ASKED TO PROVE THE NATURE OF THE LAND SOLD. FURTHER, AS PER THE A SSESSEES, ASSESSING OFFICER ERRED IN CONSIDERING ` 2,51,80,000/- AS THE SALE CONSIDERATION AGAINST THE ACTUAL AMOUNT OF ` 90 LAKHS RECEIVED. ASSESSEES ALSO FURNISHED REVENUE RECORD IN THE FORM OF ADANGAL BEF ORE THE CIT(APPEALS), WHICH AS PER THE ASSESSEES, SHOWED CA SUARINA CROPS GROWN IN THE LAND. THUS, ACCORDING TO ASSESSEES, T HE REVENUE RECORD IN THE NATURE OF CHITTA AND ADANGAL PROVED THE NATU RE OF LAND WAS AGRICULTURAL. LD. CIT(APPEALS) CALLED FOR A REMAND REPORT FROM THE A.O. A.O. IN THE SAID REMAND REPORT, MENTIONED AS UNDER:- DURING THE TIME OF ASSESSMENT PROCEEDINGS ITSELF, A CONFIRMATION WAS OBTAINED FROM THE HEADQUARTERS DEP UTY TAHSILDAR, THIRUKAZHUKUNDRAM WHO HAS CERTIFIED IN H IS LETTER DATED 23.12.2010, REFERRED TO AT 2 ABOVE, TH AT IN THE LANDS IN QUESTION CASUARINAS ARE GROWN FOR THE PAST ONE AND A HALF YEAR AND HENCE THE SAME ARE AGRICULTURAL LANDS. I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 5 HE HAS ALSO CONFIRMED IN THE SAID LETTER THAT THE L ANDS ARE SITUATED AT ONE KILOMETER DISTANCE FROM THE TOWN PANCHAYAT OF MAMALLAPURAM (I.E. WITHIN THE SPECIFIE D DISTANCE FROM THE OUTER LIMITS OF THE NEAREST MUNICIPALITY/TOWN PANCHAYAT) AND THE POPULATION OF THE MAMALLAPURAM TOWN PANCHAYAT AS PER 2001 CENSUS WAS 12,345. 5. CIT(APPEALS) WAS OF THE OPINION THAT MOST IMPORT ANT CRITERIA FOR CONSIDERING THE CLASSIFICATION OF LAND WAS THE REVE NUE RECORD. ASSESSEES HAD PRODUCED COPY OF ADANGAL AND A LETTER FROM TEHSILDAR WHICH SHOWED THAT THE LAND WAS AGRICULTURAL IN NATU RE. FURTHER, ACCORDING TO HIM, SUBJECT LAND WAS NOT LOCATED IN A MUNICIPALITY OR CANTONMENT AND WAS NOT NOTIFIED BY THE CENTRAL GOVE RNMENT FOR APPLICATION OF SUB-CLAUSE (B) OF CLAUSE (III) TO SE CTION 2(14) OF THE ACT. MAHABALIPURAM WAS NEITHER A MUNICIPALITY NOR IN CAN TONMENT BOARD, NOR WAS IT NOTIFIED BY CENTRAL GOVERNMENT IN THE OF FICIAL GAZETTE FOR EXTENDING THE LOCAL LIMITS BY EIGHT KILOMETERS FOR RECKONING THE NATURE OF LAND FOR THE PURPOSE OF CAPITAL ASSET. IN THIS VIEW OF THE MATTER, LD. CIT(APPEALS) RULED THAT LAND HELD BY THE ASSESSEES WERE AGRICULTURAL IN NATURE AND THE SALE PROCEEDS WERE NOT EXIGIBLE T O CAPITAL GAINS TAX. HE DELETED THE ADDITIONS MADE BY THE A.O. 6. NOW BEFORE US, LEARNED D.R., STRONGLY ASSAILING THE ORDERS OF CIT(APPEALS), SUBMITTED THAT THE ONLY REASON WHY TH E CIT(APPEALS) I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 6 CONSIDERED THE LAND TO BE AGRICULTURAL WAS THE REVE NUE RECORD WAS PRODUCED BY THE ASSESSEE. ACCORDING TO HIM, THIS BY ITSELF WILL NOT BE SUFFICIENT TO PROVE THAT ASSESSEES HAD EVER CONDUCT ED ANY AGRICULTURAL OPERATIONS. FURTHER, ACCORDING TO HIM , THE LETTER MENTIONED IN THE REMAND REPORT, WRITTEN BY VAO WAS DATED 23.12.2010. ACCORDING TO LEARNED D.R., IN SUCH LET TER ITSELF THE AGE OF CASUARINA WAS STATED TO BE 1 YEARS. THE SALE DEE DS HAVING BEEN EXECUTED ON 25 TH OCTOBER, 2007 AND 6 TH FEBRUARY, 2008 WERE MUCH EARLIER TO THE GROWING OF ANY CASUARINA. ASSESSEES HAD NOT ADMITTED ANY AGRICULTURAL INCOME. ASSESSEES HAD ALSO CREATE D PASSAGE FROM THE EXISTING ROAD TO AN ADJACENT LAND AND SUCH ADJA CENT LAND WAS DIVIDED INTO PLOTS FOR SALE. ACCORDING TO HIM, THE TESTS, WHICH WERE TO BE APPLIED FOR DETERMINING THE NATURE OF LAND WERE SET OUT BY HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. SID DHARTH J. DESAI (139 ITR 628). ASSESSEES WERE LIABLE TO PROVE USE OF LA ND FOR AGRICULTURAL PURPOSE AT THE TIME OF SALE. VAO CERTIFICATE SHOWE D THAT CASUARINA CULTIVATION, IF ANY, WAS NOT OF A LONG STANDING. A SSESSEES HAD NOT SHOWN ANY AGRICULTURAL INCOME FROM THE SAID PROPERT Y. ACCORDING TO HIM, THE TESTS SET OUT BY HON'BLE JURISDICTIONAL HI GH COURT IN THE ABOVE MENTIONED DECISION, WERE APPROVED BY HON'BLE APEX C OURT IN THE CASE OF SARIFABIBI MOHMED IBRAHIM AND OTHERS V. CIT (204 ITR 631). I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 7 RELIANCE WAS ALSO PLACED BY HON'BLE APEX COURT IN T HE CASE OF CIT V. RAJA BENOY KUMAR SAHAS ROY (32 ITR 466). FURTHER, ACCORDING TO HIM, ASSESSEES COULD NOT SHOW ANY AGRICULTURAL OPER ATIONS HAVING BEEN CONDUCTED AND THE TREES, IF ANY, THAT WERE THE RE IN THE SUBJECT PROPERTY COULD HAVE BEEN ONLY SPONTANEOUS GROWTH. RELIANCE WAS ALSO PLACED ON THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT V. SHRI SUBRAMANIAM VADIVEL IN I.T .A. NO. 2118/MDS/2012 DATED 20 TH FEBRUARY 2013 AND THAT OF PALLAVA RESORTS PVT. LTD. V. DCIT IN I.T.A. NO. 794/MDS/2011 DATED 11 TH OCTOBER, 2012. 7. PER CONTRA, LEARNED A.R., STRONGLY SUPPORTING TH E ORDER OF CIT(APPEALS), INVITED OUR ATTENTION TO PAPER-BOOK 2 , WHICH IS A COPY OF ADANGAL REGISTER. ACCORDING TO HIM, IN THE SAID ADANGAL REGISTER, IT WAS CLEARLY MENTIONED THAT CASAURINA WAS CULTIVATED IN THE SUBJECT LAND. THERE WAS A WELL AND A SHED IN THE LAND WHIC H WERE USED FOR AGRICULTURAL PURPOSES. CLASSIFICATION IN THE REVEN UE RECORD AS AGRICULTURAL LAND WAS CONCLUSIVE OF THE NATURE OF L AND, UNLESS AND UNTIL IT WAS EFFECTIVELY REBUTTED BY THE REVENUE, BY COGE NT EVIDENCE. NOTHING OF THIS SORT WAS PRODUCED BY THE REVENUE. ASSESSEES HAD NOT SHOWN AGRICULTURAL INCOME IN THEIR RETURNS SINC E CASAURINA WERE I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 8 NOT CUT AND SOLD. ACCORDING TO HIM, ASSESSEES BELO NGED TO AN OLD ZAMINDAR FAMILY AND WERE BASICALLY AGRICULTURISTS. LAND WAS INHERITED BY SMT. SAKUNTHALA VEDHACHALAM FROM HER HUSBAND, WH O IN TURN HAD INHERITED IT FROM HIS FATHER. SMT. VANITHA MANICKA VASAGAM, THE OTHER ASSESSEE WAS ONLY A HOUSEWIFE. THE LAND WAS SOLD B Y THE ASSESSEES FINDING IT DIFFICULT TO MANAGE IT. THE A .O. HAD IN HIS REMAND REPORT CONFIRMED THAT THE LAND WAS AGRICULTU RAL IN NATURE. HE HAD ALSO OBSERVED THAT CASUARINA TREES WERE GROWN T HERE. THE REPORT OF THE INSPECTOR WAS NEVER PUT BEFORE THE ASSESSEES . THEREFORE, AN ADVERSE CONCLUSION DRAWN BY ASSESSING OFFICER FROM SUCH REPORT COULD NOT BE RELIED UPON. HENCE, ACCORDING TO HIM, CIT(APPEALS) WAS JUSTIFIED IN CONCLUDING THE LAND TO BE AGRICULTURAL IN NATURE. 8. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. COPIES OF SALE DEED DATED 6 TH FEBRUARY, 2008, PLACED AT PAPER-BOOK PAGES 5 TO 12 AND SALE DEED DATED 25 TH OCTOBER, 2007, PLACED AT PAPER-BOOK PAGES 13-19 IN THEIR RESPECTIVE SCHEDULE S, MENTION THE LAND TO BE AGRICULTURAL IN NATURE. THE TOTAL AREA SOLD WAS ABOUT 3 ACRES. COPY OF THE ADANGAL RECORD, PLACED AT PAPER -BOOK PAGE 21, SHOWS NAME OF THE HOLDER AS ONE SHRI O.P. NAMBIYAR. SHRI O.P. NAMBIYAR WAS ENJOYING THE POSSESSION OF THE PROPERT Y. NO DOUBT, IN I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 9 THE SAID RECORD, IT WAS MENTIONED THAT THERE WAS CU LTIVATION OF CASUARINA IN THE SUBJECT LAND. HOWEVER, A SPECIFIC CERTIFICATION HAS BEEN GIVEN AT THE BOTTOM OF THE SAID ADANGAL RECORD , WHICH CLEARLY MANDATES THAT IT CANNOT BE USED IN COURTS OR BEFORE ANY AUTHORITIES EXCEPT FOR INCOME-TAX PURPOSES. THUS THERE IS A QU ESTION MARK ON ADMISSIBILITY OF THE COPY OF ADANGAL RECORD PRODUCE D BY THE ASSESSEES, AS A RELEVANT EVIDENCE. THOUGH THE CIT( APPEALS) HAS RELIED ON A LETTER FROM TEHSILDAR FOR COMING TO A C ONCLUSION THAT THE LAND WAS AGRICULTURAL IN NATURE, THE DEPARTMENT IN ONE OF ITS GROUNDS HAS CLEARLY POINTED OUT THAT SUCH LETTER WAS ISSUED ON 23.12.2010. THEREFORE, THERE IS SUBSTANTIAL SUBSTANCE IN THE CO NTENTION OF LEARNED D.R. THAT THE CASUARINA TREES MENTIONED IN THE SAID LETTER, WHICH HAD AN AGE OF ONLY 1 AND YEARS, WERE PLANTED MUCH LAT ER TO THE DATE OF EXECUTION OF SALE DEEDS. ASSESSEES HAD NOT ADMITTE D ANY AGRICULTURAL INCOME IN ANY OF THEIR RETURNS. LEARN ED A.R. HAD MENTIONED THAT CASUARINA TREES WERE NOT YET CUT FOR SALE AND THAT WAS THE REASON WHY AGRICULTURAL INCOME WAS NOT SHOWN IN THE RETURNS. THIS BY NECESSARY IMPLICATION MEANS THAT CULTIVATIO N OF CASUARINA TREES, IF ANY, WAS OF RECENT ORIGIN. ASSESSEES HAV E BY THEMSELVES ADMITTED THAT THE LAND WAS RECEIVED FROM HUSBAND OF SMT. SAKUNTHALA VEDHACHALAM BY INHERITANCE WHO HAD, IN TURN, RECEIV ED IT FROM HIS I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 10 FATHER. IF THE ARGUMENT OF THE ASSESSEES THAT THEY WERE AGRICULTURISTS SINCE LONG, WAS CORRECT, THERE WAS NO REASON WHY AG RICULTURAL INCOME WAS NOT SHOWN IN THEIR RESPECTIVE RETURNS. THE TES TS LAID ON BY HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SI DDHARTH J. DESAI (SUPRA), ARE VERY RELEVANT HERE. THE SAID TESTS, W HICH WERE COMPILED BY THEIR LORDSHIPS AFTER CONSIDERING VARIOUS DECISI ONS, APPEAR AT PARA 11 OF THE JUDGMENT, AND THESE READ AS UNDER:- 11. ON A CONSPECTUS OF THESE CASES, SEVERAL FACTORS ARE DISCERNIBLE WHICH WERE CONSIDERED AS RELEVANT AND W HICH WERE WEIGHED AGAINST EACH OTHER WHILE DETERMINING THE TR UE NATURE AND CHARACTER OF THE LAND. IT MAY BE USEFUL TO EXTRACT FROM THOSE DECISIONS SOME OF THE MAJOR FACTORS WHICH WERE CONS IDERED AS HAVING A BEARING ON THE DETERMINATION OF THE QUESTI ON. THOSE FACTORS ARE: (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 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 O F A STOP-GAP ARRANGEMENT ? (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 RESPECT OF A PORTION OF THE I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 11 LAND AND IF IT WAS OBTAINED IN THE PAST, WHAT WAS T HE NATURE OF THE USER OF THE SAID PORTION OF THE LAND ON THE MATERIA L 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 A N ALTERNATIVE USE? WHETHER SUCH CESSER AND/OR ALTERNATIVE USER WA S OF A PERMANENT, OR TEMPORARY NATURE? (7) WHETHER THE LAND, THOUGH ENTERED IN REVENUE REC ORDS, HAD NEVER BEEN ACTUALLY USED FOR AGRICULTURE, THAT IS, IT HAD NEVER BEEN PLOUGHED OR TILLED? WHETHER THE OWNER MEANT OR INTE NDED TO USE IT FOR AGRICULTURAL PURPOSES? (8) WHETHER THE LAND WAS SITUATE IN A DEVELOPED ARE A ? WHETHER ITS PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF THE LANDS IN THE ADJOINING AREA WERE SUCH AS WOULD INDI CATE THAT THE LAND WAS AGRICULTURAL? (9) W HETHER THE LAND ITSELF WAS DEVELOPED BY PLOTTING AN D 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 INTENDED 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 LAN D WAS SOLD AND WHETHER THE OWNER WOULD HAVE EVER SOLD THE LAND VAL UING 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 APPEARAN CE AND THAT THE ULTIMATE DECISION WILL HAVE TO BE REACHED ON A BALANCED CONSIDERATION OF THE TOTALITY OF THE CIRCUMSTANCES. 9. OF THE ABOVE TESTS, ASSESSEES, IN OUR OPINION, C OULD NOT SATISFY ANY OF THE CONDITIONS OTHER THAN A FEW CONDITIONS M ENTIONED AT (1), I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 12 (5), (11) AND (12). EVEN THE CLASSIFICATION GIVEN IN THE REVENUE RECORD, WHICH IS APPEARING IN THE COPY OF THE ADANG AL REGISTER, HAS BEEN ISSUED BY THE CONCERNED AUTHORITIES WITH A RID ER CONSIDERABLY REDUCING ITS EVIDENTIARY VALUE. ASSESSEES COULD NO T PROVE THAT THE LAND WAS ACTUALLY OR ORDINARILY USED FOR AGRICULTUR E. THERE WAS NO EVIDENCE SHOWN AND PRODUCED TO PROVE THAT THE LAND WAS USED FOR AGRICULTURAL PURPOSES OR TO SHOW THAT ANY AGRICULTU RAL OPERATIONS WERE CARRIED ON IN THE LAND. IN OUR OPINION, AN ENTRY I N THE REVENUE RECORD AS AGRICULTURE WILL NOT BE SUFFICIENT EVIDENCE TO H OLD THAT THE LAND WAS AGRICULTURAL IN NATURE, WHEN ACTUAL AGRICULTURAL US E WAS NOT PROVED. ADJACENT LAND, BY ADMISSION OF ASSESSEES, HAD BEEN DIVIDED INTO PLOTS FOR SALE AND ACCESS ROAD HAS ALSO BEEN PROVID ED BY THE ASSESSEE TO THE SAID PLOTS. THIS, IN OTHER WORDS, WOULD MEAN THAT THE LAND WAS SITUATED IN A DEVELOPED AREA. NO AGRICULT URISTS WOULD HAVE PURCHASED THE LAND SOLD BY THE ASSESSEE FOR PURSUIN G ANY AGRICULTURAL ACTIVITY. CONSIDERING ALL THESE ASPECTS, WE ARE OF THE OPINION THAT THE LAND COULD NOT BE CLASSIFIED AS AGRICULTURAL. IN O UR OPINION, CIT(APPEALS) FELL IN ERROR WHEN HE MISSED ALL THESE RELEVANT ASPECTS. WE, THEREFORE, HAVE NO HESITATION TO SET ASIDE THE ORDER OF CIT(APPEALS) AND REINSTATE THE ADDITION FOR LONG TE RM CAPITAL GAINS MADE BY THE ASSESSING OFFICER. I.T.A. NO. 2164/MDS/12 I.T.A. NO. 2165/MDS/12 13 10. IN THE RESULT, APPEALS FILED BY THE REVENUE STA ND ALLOWED. ORDER WAS PRONOUNCED IN THE COURT ON THURSDAY, THE 11 TH OF APRIL, 2013, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 11 TH APRIL, 2013. KRI. COPY TO: (1) ASSESSEES (2) ASSESSING OFFICER (3) CIT(A)-XII, CHENNAI-34 (4) CIT-X, CHENNAI (5) D.R. (6) GUARD FILE