Thanmal Ganeshmal Parmar, Pune V. ITO, Ward 8(3), Pune

ITA 266/PUN/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0919 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Keywords: Capital asset
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 266/PN/2013 %' ( ')( / ASSESSMENT YEAR : 2007-08 THANMAL GANESHMAL PARMAR, 84, JAYCHAND CHOWK, LONAWALA, PUNE PAN : AAQPP9532N ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, WARD 8(3), PUNE / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI B.C. MALAKAR / DATE OF HEARING : 07-09-2015 / DATE OF PRONOUNCEMENT : 04-11-2015 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 02-07- 2012 FOR THE ASSESSMENT YEAR 2007-08. THE ONLY ISSUE RAISED IN THE APPEAL BY THE ASSESSEE IS; WHETHER THE INCOME ARISING FROM SALE OF AG RICULTURAL LAND IS EXEMPT OR IS TAXABLE AS CAPITAL GAINS IN THE FACTS OF THE CASE? 2. THE FACTS OF THE CASE AS EMANATING FROM THE RECORDS ARE : THE ASSESSEE IS A CLOTH MERCHANT. THE ASSESSEE FILED HIS RETU RN OF INCOME 2 ITA NO. 266/PN/2013, A.Y. 2007-08 FOR THE IMPUGNED ASSESSMENT YEAR ON 27-06-2008 DECLARIN G TOTAL INCOME OF RS.1,64,750/-. THE CASE OF THE ASSESSEE WAS SE LECTED FOR SCRUTINY. ACCORDINGLY, NOTICE U/S. 143(2) WAS ISSUED TO TH E ASSESSEE ON 20-08-2009. DURING THE COURSE OF SCRUTINY ASSESSMENT, T HE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SOLD PLOTS OF LAND AND HAS CLAIMED THE PROFIT EARNED FROM THE SALE OF SAID PLOTS AS EXE MPT FROM INCOME. AS PER THE CONTENTIONS OF THE ASSESSEE, THE PLOT S SOLD ARE PART OF AGRICULTURAL LAND AND HENCE, IS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). THE ASSESSING OFFICER REJECTE D THE CONTENTIONS OF THE ASSESSEE AND APPLIED THE TEST AS LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIDDHARTH J D ESAI, 139 ITR 628 TO DETERMINE THE NATURE OF LAND. THE ASSESSING OFFICE R HELD THAT THE PLOTS OF LAND SOLD BY THE ASSESSEE ARE SITUATED IN PR EDOMINANT DEVELOPED AREA, THE LAND IS NOT UNDER CULTIVATION AND DO ES NOT FULFILL THE TEST LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT. THE A SSESSING OFFICER HELD THE LAND TO BE CAPITAL ASSET AS DEFINED IN SEC TION 2(14) OF THE ACT AND BROUGHT TO TAX THE GAIN ARISING FROM THE SA LE OF PLOTS OF LAND. AGGRIEVED BY THE ASSESSMENT ORDER DATED 22-12-2009, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD T HE FINDINGS OF THE ASSESSING OFFICER AND DISMISSED THE APPEAL OF T HE ASSESSEE. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE T HE TRIBUNAL ASSAILING THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). 3. SHRI NIKHIL PATHAK APPEARING ON BEHALF OF THE ASSESSEE S UBMITTED THAT THE ASSESSEE IS OWNER OF AGRICULTURAL LAND COMPRISING IN S. NO. 106, 161 AT VILLAGE KHADKALE AND GAT NO. 244, VILLAGE KUSGAO N, 3 ITA NO. 266/PN/2013, A.Y. 2007-08 TAL.-MAVAL, DISTT.-PUNE HAVING 1/3 RD SHARE. THE AFORESAID LAND IS BEYOND 8 KM FROM THE MUNICIPAL LIMITS OF LONAWALA AND IS HAV ING POPULATION LESS THAN 10,000. THE EXTRACTS OF 7/12 SHOW T HAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND AND IS UNDER CULTIVATION. THE ASSESSEE HAD GIVEN THE LAND TO SHRI BHIVAJI HAVJI LALGUDE OF KUSGAON FOR CULTIVATION. THE ASSESSEE USE TO GET RS.3,500/- PER A NNUM AS RENT. THE LD. AR SUBMITTED THAT ADMITTEDLY THE ASSESSEE HAS N OT DISCLOSED THE AFORESAID AMOUNT IN THE RETURN OF INCOME AS AGRICULTUR AL INCOME BECAUSE THE AMOUNT WAS TOO MEAGER. THE ASSESSEE HAS NEVER APPLIED FOR CHANGE OF LAND USE OR HAS DEVELOPED THE AREA. THE A SSESSING OFFICER HAS NOT REJECTED THE EXTRACTS OF 7/12 BEFORE HOLDING TH AT THE LAND IS A CAPITAL ASSET. IT IS ALSO NOT DISPUTED THAT THE LAND IS MO RE 8 KM AWAY FROM MUNICIPAL LIMITS AND IS SITUATED IN A VILLAGE HAVING POPULATIO N OF LESS THAN 10,000. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO SHOW FROM THE RECORDS THAT THE LAND WAS NOT UTILIZED FOR THE A GRICULTURE PURPOSE. THE FIRST REASON GIVEN BY THE ASSESSING OFFICER TO TREAT THE PLOTS OF LAND AS CAPITAL ASSET IS THAT THE PLOTS ARE SITUAT ED IN PREDOMINANT DEVELOPED AREA. THE ASSESSING OFFICER MERELY ON SURMISES AND CONJECTURES HAS FORMED AN OPINION THAT THE PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF THE LAND IN THE ADJOINING AREA INDICATE THAT THE LAND IS NOT AN AGRICULTURA L LAND. THE SECOND REASON FOR HOLDING THE LAND CAPITAL ASSET BY ASSES SING OFFICER IS THAT THE PLOT IS SOLD TO ONE SHRI SOMAJI OF AKIL SOMAJI GRO UP WHO WOULD NOT BE CARRYING OUT ANY AGRICULTURE ACTIVITIES. THEREFORE, THE LAND IS SOLD FOR NON-AGRICULTURE PURPOSE. THE ASSESSEE HAS PLA CED ON RECORD EXTRACTS OF 7/12 AFTER SALE OF PLOTS. THE REVENUE RECORD S STILL SHOW THAT THE LAND IS UNDER CULTIVATION. THE THIRD REASON POINTED OU T BY THE ASSESSING OFFICER IS THAT PLOT OF LAND SITUATED AT KUSEGAON GAT NO. 244 IS SHOWN AS BARREN LAND IN THE REVENUE RECORD. THEREFOR E, NO 4 ITA NO. 266/PN/2013, A.Y. 2007-08 CULTIVATION IS POSSIBLE ON THE SAID LAND AND THE ASSESSEE HAS NOT DISCLOSED AGRICULTURE INCOME IN HIS RETURN OF INCOME. THE LD. AR FURTHER SUBMITTED THAT THE COMMISSIONER OF INCO ME TAX (APPEALS) HAS REJECTED THE CONTENTIONS OF THE ASSESS EE ON THE GROUND THAT NO AGRICULTURE INCOME WAS SHOWN IN THE RET URN OF INCOME. THEREFORE, THE LAND CANNOT BE CONSIDERED AS AGRICULTURAL LAND. FURTHER, ON ACCOUNT OF MINOR DISCREPANCIES IN THE 7/12 EXTRACTS T HE COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD THE SAME TO BE NOT RELIABLE. THE 7/12 EXTRACTS WAS PREPARED BY REVENUE AU THORITIES AND THE ASSESSEE HAS NO CONTROL OVER THEM. THERE ARE MINO R DISCREPANCIES IN MENTIONING OF THE CROPS GROWN ON THE LAND. HOWEVER, FR OM THE PERUSAL OF THE 7/12 EXTRACTS IT IS EVIDENT THAT THE LAND WAS CULTIVABLE AND WAS UNDER CULTIVATION. AS FAR AS PLOTS COMPRISING IN S NO. 106 AND 161 AT KHADKALE, TAL.-MAVAL, DISTT.-PUNE IS CONCERNED THER E IS NO DISPUTE THAT THE LAND/PLOTS WERE UNDER CULTIVATION. THE D ISPUTE IS ONLY WITH REGARD TO THE LAND COMPRISING IN GAT NO. 244 (OLD 135), KUSEGAON. IN THE 7/12 EXTRACTS IT HAS BEEN MENTIONED THAT PART OF LAND IS PAD (BARREN). HOWEVER, IN 7/12 EXTRACTS FOR THE SUBSEQUENT Y EAR, THE SAID LAND IS SHOWN AS CULTIVABLE. THE LD. AR SUBMITTED THAT WITH OUT PREJUDICE TO HIS EARLIER SUBMISSIONS THE PLOT COMPRISES IN G AT NO. 244, KUSEGAON MAY ALONE BE TREATED AS NON-AGRICULTURE. IN S UPPORT OF HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS: I. CIT VS. SMT. DEBBIE ALEMAO, 331 ITR 59 (BOM); II. HARESH V. MILANI VS. JOINT CIT, 111 TTJ (PUNE) 310; AND III. ITO VS. SHRI NITIN M. RAJHANS, ITA NO. 150/PN/2012, DECIDED ON 30-12-2013. 4. SHRI B.C. MALAKAR REPRESENTING THE DEPARTMENT SUBMITT ED THAT THE ASSESSEE HAS FAILED TO PROVE THAT ANY AGRICULTURE AC TIVITY WAS 5 ITA NO. 266/PN/2013, A.Y. 2007-08 CARRIED OUT ON THE LAND IN QUESTION. THE ASSESSEE HAS NOT DISCLOSED ANY INCOME FROM AGRICULTURE ACTIVITY IN HIS RETURN OF INCOME. THE LD. DR FURTHER POINTED OUT THAT THERE ARE CONTRADICTIONS IN 7/12 EXTRACTS FILED BY THE ASSESSEE FOR THE SAME ASSESSMENT YEAR. THU S, NO RELIANCE CAN BE PLACED ON SUCH DOCUMENTS. MOREOVER, THE LAND CO MPRISING IN GAT NO. 244, KUSEGAON HAS BEEN CLASSIFIED AS BARREN. THER EFORE, NO CULTIVATION IS POSSIBLE ON THE SAID LAND. THE LD. DR VEHEMEN TLY SUPPORTING THE FINDINGS OF THE AUTHORITIES BELOW PRAYED FOR DISMISSING THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. IT IS AN UNDISPUTED FACT THAT THE PLOTS OF LAND ON WHICH THE A SSESSEE HAS EARNED INCOME FROM SALE ARE SITUATED BEYOND 8 KM FROM TH E MUNICIPAL LIMITS OF LONAWALA AND THE VILLAGE IS HAVING POPULATION LESS THA N 10,000. THE ASSESSEE ON THE BASIS OF REVENUE RECORDS H AS CLAIMED THE PLOTS OF LAND AS AGRICULTURAL LAND AND ACCORDINGLY CLAIMED T HE INCOME FROM SALE OF PLOTS OF LAND AS EXEMPT. ON THE CONTRARY, STA ND OF THE REVENUE IS THAT EVEN THOUGH THE LAND IS STATED TO BE AGRICULTURAL LAND IN THE REVENUE RECORDS, IT DOES NOT QUALIFY THE TESTS LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIDDHA RTH J DESAI (SUPRA). A PERUSAL OF REVENUE RECORDS SHOW THAT THE LAND IS UNDIS PUTEDLY CULTIVABLE AND UNDER CULTIVATION OF RICE AND WHEAT, EXCEPT P ART OF PLOT COMPRISING IN GAT NO. 244. THE REVENUE HAS NOT DISPUTED THAT THE ASSESSEE HAS NEVER APPLIED FOR THE CHANGE OF LAND USE OR WAS EVER USED FOR NON-AGRICULTURE PURPOSE. ONE OF THE REASONS FOR TREA TING THE PLOTS OF LAND AS CAPITAL ASSET IS THAT THE LAND IS NEAR THE DEV ELOPED AREA AND HIGHWAY. IN OUR CONSIDERED VIEW IF THE LAND IS MORE THAN 8 KM AWAY 6 ITA NO. 266/PN/2013, A.Y. 2007-08 FROM THE MUNICIPAL LIMITS AND IS IN VILLAGE HAVING LESS THAN 10,0 00 POPULATION, DEVELOPMENT OF SURROUNDING AREA AND NEARNESS OF THE HIGHWAY CANNOT BE A GROUND TO CHARACTERIZE THE LAND AS NON- AGRICULTURE. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS REJECTED THE 7/12 EXTRACTS MERELY ON THE GROUND THAT THERE ARE CONTRA DICTIONS IN TWO 7/12 EXTRACTS FOR THE SAME YEAR. IN ONE OF THE 7/12 EXTRA CTS FOR THE YEAR 2002-03 THE CROPS MENTIONED ARE BHAT, GEHU AND V IPATH, WHEREAS IN THE SECOND 7/12 EXTRACTS FOR THE SAME YEAR THE CRO PS MENTIONED ARE BHAT AND GEHU. WE ARE OF THE VIEW THAT THESE DISCR EPANCIES ARE TRIVIAL. THE 7/12 EXTRACTS ARE PREPARED BY THE REVENU E AUTHORITIES AND THE ASSESSEE HAS NO CONTROL OVER THEM. THE MAIN PURPO SE OF REFERRING TO 7/12 EXTRACTS IS TO ASCERTAIN: I. THE OWNERSHIP AND POSSESSION OF LAND; II. NATURE OF LAND; III. CROPS CULTIVATED ON THE LAND; AND IV. SOURCE OF IRRIGATION, IF ANY. FROM THE PERUSAL OF 7/12 EXTRACTS PLACED ON RECORD BY THE ASSESSEE IT IS EVIDENT THAT THE LAND WAS UNDER CULTIVATION . THEREFORE, THE REASONS FOR REJECTING 7/12 EXTRACTS BY THE COMMISS IONER OF INCOME TAX (APPEALS) ARE NOT SUSTAINABLE. 7. ANOTHER REASON FOR HOLDING THE LAND AS CAPITAL ASSET BY THE REVENUE IS THAT THE ASSESSEE HAS NOT DISCLOSED AGRICULTU RAL INCOME FROM THE LAND IN HIS RETURN OF INCOME. WE ARE OF THE CONSID ERED VIEW THAT, NON-DISCLOSURE OF AGRICULTURAL INCOME BY THE ASSESSEE IN THE RETURN OF INCOME CANNOT BE A GROUND FOR CHANGING THE CLA SSIFICATION OF LAND FROM AGRICULTURAL LAND TO A CAPITAL ASSET. THE HON BLE BOMBAY 7 ITA NO. 266/PN/2013, A.Y. 2007-08 HIGH COURT IN THE CASE OF CIT VS. SMT. DEBBIE ALEMAO (SUPRA ) HAS HELD THAT IF NO AGRICULTURAL INCOME WAS SHOWN FORM THE LAND WHIC H WAS SHOWN AS AGRICULTURAL LAND IN THE REVENUE RECORDS AND NE VER SOUGHT TO BE USED FOR NON-AGRICULTURAL PURPOSE BY THE ASSESSEE TILL IT WAS SOLD HAS TO BE TREATED AS AGRICULTURAL LAND, EVEN THOUGH NO AGRIC ULTURAL INCOME WAS SHOWN BY THE ASSESSEE FROM THIS LAND AND, THEREFORE, NO CAPITAL GAIN WAS TAXABLE ON THE SALE OF THE SAID LAND. 8. IN THE CASE OF HARESH V. MILANI VS. JOINT CIT (SUPRA) THE CO- ORDINATE BENCH HELD THE LAND TO BE AGRICULTURAL LAND ON TH E BASIS OF REVENUE RECORDS EVEN AFTER INCLUSION OF LAND IN THE INDUSTRIAL ZONE. THE RELEVANT EXTRACT OF THE FINDINGS OF TRIBUNAL ARE AS UNDER: 23. IT IS FURTHER PERTINENT TO NOTE THAT MERE INCL USION OF LAND IN THE INDUSTRIAL ZONE WITHOUT ANY INFRASTRUCTURE DEVELOPM ENT THEREUPON OR WITHOUT ESTABLISHING AND PROVING THAT THE LAND WAS PUT INTO USE FOR NON- AGRICULTURAL PURPOSES DOES NOT AND CANNOT CONVERT T HE AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND. IN THE INSTANT CASE, AT THE RELEVANT POINT OF SALE OF THE LAND IN QUESTION, THE SURROUNDING AREA WAS TOTALLY UNDEVELOPED AND EXCEPT MERE FUTURE POSSIBILITY TO P UT THE LAND INTO USE FOR NON-AGRICULTURAL PURPOSES WOULD NOT CHANGE THE CHARACTER OF THE AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND AT THE RELEVANT POINT OF TIME WHEN THE LAND WAS SOLD BY THE ASSESSEE. IT IS ALSO AN ADMITTED POSITION THAT THE ASSESSEE HAD NOT APPLIED FOR CONVERSION OF THE LAND IN QUESTION INTO NON-AGRICULTURAL PURPOSES AND NO SUCH PERMISSI ONS WERE OBTAINED FROM THE CONCERNED AUTHORITY. IN THE REVENUE RECORD S, THE LAND IS CLASSIFIED AS AGRICULTURAL LAND AND HAS NOT BEEN CH ANGED FROM AGRICULTURAL LAND TO NON-AGRICULTURAL LAND AT THE T IME WHEN THE LAND WAS SOLD BY THE ASSESSEE. IT IS ALSO NOT IN DISPUTE THA T THERE WAS NO ACTIVITY UNDERTAKEN BY THE ASSESSEE OF DEVELOPING THE LAND B Y PLOTTING AND PROVIDING ROADS AND OTHER FACILITIES AND THERE WAS NO INTENTION ALSO ON THE PART OF THE ASSESSEE TO PUT THE SAME FOR NON-AG RICULTURAL PURPOSES. NO SUCH FINDING HAS BEEN GIVEN BY THE DEPARTMENT. NO M ATERIAL OR EVIDENCE IN SUPPORT OF THE FACT THAT THE ASSESSEE HAS PUT TH E LAND IN USE FOR NON- AGRICULTURAL PURPOSES HAS BEEN BROUGHT ON RECORD. M ERELY BECAUSE THE ASSESSEE HAS NOT GIVEN ANY DIRECT EVIDENCE OF SALE OF AGRICULTURAL PRODUCES, WHICH WERE STATED TO HAVE BEEN CONSUMED B Y THE ASSESSEE FOR OWN PURPOSES, IS NOT SUFFICIENT TO SAY THAT THE LAN D IN QUESTION WAS NOT 8 ITA NO. 266/PN/2013, A.Y. 2007-08 AGRICULTURAL LAND WHEN IT IS CLASSIFIED AS AGRICULT URAL LAND IN 7/12 EXTRACTS WHERE THE NATURE OF THE CROP AND THE PERSO N WHO CULTIVATED THE LAND ARE DULY MENTIONED AT THE RELEVANT POINT OF TI ME WHEN THE LANDS WERE SOLD BY THE ASSESSEE AND WHERE NOTHING IS BROU GHT ON RECORD TO SHOW THAT THE LAND WAS PUT IN USE FOR NON-AGRICULTU RAL PURPOSES BY THE ASSESSEE. IN VIEW OF THE DECISION OF THE HON'BLE JU RISDICTIONAL HIGH COURT IN THE CASE OF GOPAL C. SHARMA VS. CIT (SUPRA), IT IS ALSO CLEAR THAT THE PROFIT MOTIVE OF THE ASSESSEE IN SELLING THE LAND W ITHOUT ANYTHING MORE BY ITSELF CAN NEVER BE DECISIVE TO SAY THAT THE ASSESS EE USED THE LAND FOR NON-AGRICULTURAL PURPOSES. WE MAY ALSO REFER TO A D ECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF N. SRINIVASA RAO VS. S PECIAL COURT (2006) 4 SCC 214 WHERE IT WAS OBSERVED THAT THE FACT THAT AG RICULTURAL LAND IN QUESTION IS INCLUDED IN URBAN AREA WITHOUT MORE, HE LD NOT ENOUGH TO CONCLUDE THAT THE USER OF THE SAME HAD BEEN ALTERED WITH PASSAGE OF TIME. THUS, THE FACT THAT THE LAND IN QUESTION IN T HE INSTANT CASE IS BROUGHT IN INDUSTRIAL ZONE CANNOT BE A DETERMINING FACTOR BY ITSELF TO SAY THAT THE LAND WAS CONVERTED INTO USE FOR NON-AGRICU LTURAL PURPOSES. 24. IN THE LIGHT OF THE FOREGOING DISCUSSIONS AND C ONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE , WE HOLD THAT THE LAND IN QUESTION SOLD BY THE ASSESSEE WAS AN AGRICULTURA L LAND IN NATURE AT THE RELEVANT POINT OF TIME WHEN THE LAND WAS SOLD A ND, AS SUCH, ANY GAIN ARISING FROM SALE THEREOF IS EXEMPTED FROM TAX UNDE R THE IT ACT. THEREFORE, THE ADDITION OF CAPITAL GAIN OF RS. 15,1 2,525 INCLUDED BY THE AO IN THE ASSESSMENT OF THE ASSESSEE STANDS DELETED . 25. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. WE FIND THAT THE CASE OF ASSESSEE IS ON BETTER FOOTING. I N THE PRESENT CASE THERE IS NO ALLEGATION THAT THE ASSESSEE HAD EVER APPLIED FOR CHANGE OF LAND USE. THE 7/12 EXTRACTS SHOW THE LAND AS AGRICULTURAL LAND AND THERE IS CULTIVATION OF CROP. THE LAND IS BEYOND 8 KM FROM THE MUNICIPAL LIMITS AND THE VILLAGE IS HAVING POPULATION OF LESS THAN 10,000. THERE IS NO EVIDENCE ON RECORD TO SHO W THAT THE LAND WAS USED FOR ANY OTHER PURPOSE, OTHER THAN AGRICULTURE. 9. IN VIEW OF THE FACTS OF THE CASE DISCUSSED ABOVE, WE AR E OF THE CONSIDERED OPINION THAT THE AUTHORITIES BELOW HAVE ERRED IN HOLDING TH AT 9 ITA NO. 266/PN/2013, A.Y. 2007-08 THE PLOTS OF LAND SOLD BY THE ASSESSEE ARE CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT. THE IMPUGNED ORDER IS SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ACCEPTED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 04 TH DAY OF NOVEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 04 TH NOVEMBER, 2015 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-V, PUNE 4. ' / THE CIT-V, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE