NIHAL SURESH HARCHANDRAI, MUMBAI V. ASST CIT CIR 14(1)(3), MUMBAI

ITA 365/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8004 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 15-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KHAN
• Assessee Lawyers: VIPUL MODY
• Keywords: Capital asset; Competent authority
• Section: 143(3); 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI JASON P.BOAZ (AM) AND SHRI RAM LAL NEGI ( JM) ITA NO. 364/MUM/2014 ASSESSMENT YEAR: 2010-11 MR. MOHIT SURESH HARCHANDRAI. HARCHANDRAI HOUSE, 81, QUEENS ROAD, MARINE DRIVE, MUMBAI- 400 002. PAN : AAAPH 0742 E VS. THE ACIT, CIRCLE 14(1). ROOM NO. 202, EARNEST HOUSE, NARIMAN POINT, MUMBAI- 400 021. (APPELLANT) (RESPONDENT) ITA NO. 365/MUM/2014 ASSESSMENT YEAR: 2010-11 MR. NIHAL SURESH HARCHANDRAI. HARCHANDRAI HOUSE, 81, QUEENS ROAD, MARINE DRIVE, MUMBAI- 400 002. PAN : AABPH 5300 B VS. THE ACIT, CIRCLE 14(1) (3) . ROOM NO. 202, EARNEST HOUSE, NARIMAN POINT, MUMBAI- 400 021. (APPELLANT) (RESPONDENT) & ITA NO. 367/MUM/2014 ASSESSMENT YEAR: 2010-11 MR. NIRANJAN SURESH HARCHANDRAI. HARCHANDRAI HOUSE, 81, QUEENS ROAD, MARINE DRIVE, MUMBAI- 400 002. PAN : AAAPH 7382 L VS. THE ACIT, CIRCLE 14(1) ROOM NO. 202, EARNEST HOUSE, NARIMAN POINT, MUMBAI- 400 021. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. NITESH JOSHI & VIPUL MODY. RESPONDENT BY : SHRI. T.P.KHAN 2 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 DATE OF HEARING: 2 0/01/2017 DATE OF PRONOUNCEMENT: 28/02/20 17 O R D E R PER BENCH THESE ARE THE THREE APPEALS FILED BY THE APPELLANTS /ASSESSEES SHRI. MOHIT SURESH HARCHANDRAI, SHRI. NIHAL SURESH HARCHA NDRAI AND SHRI NIRANJAN SURESH HARCHANDRAI AGAINST THREE SEPARATE ORDERS DA TED 23/12/2013 PASSED BY THE LD. CIT(APPEALS)- 25, MUMBAI, FOR THE ASST. YEAR 2010-11, WHEREBY THE LD CIT(A) PARTLY ALLOWED THE APPEALS FILED BY THE A SSESSEES AGAINST ASSESSMENT ORDER DATED 19/02/2013, 31/12/2012 & 31/12/2012 RES PECTIVELY, PASSED U/S 143(3) R.W.S. 147, 143(3) AND 143(3)(II) OF THE INC OME TAX ACT, 1961 (FOR SHORT THE ACT) RESPECTIVELY. SINCE ALL THE THREE APPEAL S ARE ARISING OUT OF THE TRANSACTION OF SALE OF LAND BY THE ASSESSEES AS CO- OWNERS, ALL THE THREE APPEALS WERE CLUBBED, HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. BRIEF FACTS WHICH NEED NECESSARY MENTION FOR ADJ UDICATION OF THE ISSUES INVOLVED IN THESE APPEALS ARE THAT DURING THE FINA NCIAL YEAR 2009-10, THE ASSESSEES BEING THE OWNERS-IN-POSSESSION OF LAND BE ARING GAT NO 929, AREA MEASURING 1-69-4 HECTARES SITUATED AT VILLAGE DHOKA WALA, TALUKA ALIBAG DISTT. RAIGARH SOLD THEIR SHARES IN THE SAID LAND TO SHRI. ABHIJIT BHANDARI FOR A TOTAL CONSIDERATION OF RS. 4,21,00,000/-. HOWEVER, THE AS SESSEE DID NOT OFFER ANY CAPITAL GAIN ON THE SALE OF PROPERTY IN THEIR INCOM E TAX RETURNS FOR THE REASON THAT THE LAND SOLD DOES NOT FALL WITHIN THE PREVIEW OF CAPITAL ASSET UNDER SECTION 2(14) OF THE ACT, BEING AN AGRICULTURAL LAND. IN CA SE OF ASSESSEE MOHIT SURESH HARCHANDANI, ITA NO. 364/M/2013 THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010-11 DECLARING THE TOTAL INC OME OF RS. 19,75,502/-. 3 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 THE RETURN WAS PROCESSED U/S 143(1). HOWEVER, ON TH E BASIS OF INFORMATION RECEIVED FROM ITO -14, MUMBAI THAT THE ASSESSEE HAD SOLD HIS ASSET I.E., SHARE IN THE AFORESAID LAND BUT NOT OFFERED THE CAPITAL G AIN TO TAX, THE ASSESSMENT WAS REOPENED AND ASSESSMENT ORDER U/S 143(3) R.W.S. 147 OF THE ACT, WAS PASSED DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,16,57,086/-AFTER MAKING ADDITION OF RS. 96,81,584/- AS LONG TERM CAPITAL GA IN ON SALE OF LAND. 3. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BY FILING APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER HEARING THE ASSESS EE UPHELD THE FINDINGS OF THE A.O HOLDING THAT THE LAND SOLD BY THE APPELLANT WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE ACT; THE LAND IN Q UESTION WAS NOT BEING USED FOR AGRICULTURAL PURPOSES THEREFORE THE GAIN ON TRA NSFER OF SUCH CAPITAL ASSET IS LIABLE TO BE TAXED U/S 45 OF THE ACT. THE LD. CIT(A ), HOWEVER, INCLUDED THE AMOUNT RS. 1,20,000/- PAID TOWARDS STAMP DUTY FOR E XECUTION OF SALE DEED IN THE COST AND CALCULATED THE INDEXATION COST AT RS. , 36,43,558/- INSTEAD OF RS. 33,75,665/-CALCULATED BY THE AO AND CONFIRMED THE L ONG TERM CAPITAL GAIN OF RS. 96,14,611/-. STILL AGGRIEVED, THE ASSESSEE IS I N APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN UPHOLDING THE ORDER OF THE LEARNED ASSESSING OFFICE R TREATING THE AGRICULTURAL LAND AS CAPITAL ASSET WITHIN THE M EANING OF SECTION 2(24) OF THE ACT AND THEREBY TAXING THE GAINS ARISI NG ON SALE OF THE SAID AGRICULTURAL LAND AS CAPITAL GAINS . IT IS SUBMITTED THAT THE LAND SOLD DURING THE YEAR IS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSETS AND AS SUCH GAINS ARISING ON SALE OF SAID AGRICULTURAL LAND IS NOT CHARGEABLE TO TAX. THE CONCLUSION ARRIVED AT BY THE LEARNED LOWER AUTH ORITIES IS BASED ON PRESUMPTIONS AND SURMISES AND IS CONTRARY TO THE FACTS. 4 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 2. WITHOUT PREJUDICE TO GROUND NO 1 ABOVE, THE LEAR NED COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN CONFIR MING THE ORDER OF THE ASSESSING OFFICER, NOT ALLOWING DEDUCTION OF RS . 4,21,000/- IN RESPECT OF BROKERAGE PAID TOWARDS SALE OF SAID AGRI CULTURAL LAND. IT IS SUBMITTED THAT THE APPELLANT ALONG WITH OTHER CO-OWNERS PAID BROKERAGE AGGREGATING TO RS. 4,21,000/- TOWARDS SAL E OF AGRICULTURAL LAND AND FOR THE PURPOSE OF COMPUTING CAPITAL GAINS , THE SAME IS OUGHT TO BE REDUCED FROM SALE VALUE OF AGRICULTURAL LAND. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LD. CIT(A) HAS WRONGLY UPHELD THE ERRONEOUS ORDER PASSED BY TH E A.O. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE ALONG WITH HIS CO-OWNERS SOLD HIS SHARE IN THE LAND SITUATED IN TALUKA ALIBAUG, DISTT. RAIGARH BEARING GAT NO. 929 OF VILLAGE DHOKAWADE ADMEASURING 1-96-4 HECTARES EQUIV ALENT TO 169.4 GUNTHAS EQUIVALENT TO 16,940 SQ. METERS ON 09 TH AUGUST, 2009 FOR A TOTAL CONSIDERATION OF RS. 4,21,00,000/-. THE ASSESSEE DID NOT OFFER AN Y CAPITAL GAIN ON THE SALE OF THE LAND BECAUSE AT THE TIME OF SALE THE LAND WAS A N AGRICULTURAL LAND WITHIN MEANING OF SECTION 2(14)(III) OF THE ACT. THAT AS P ER CERTIFICATE ISSUED BY SARPANCH GRAM PANCHAYAT DHOKAWADE THE LAND IN QUEST ION IS AT THE DISTANCE OF 16 KM FROM ALIBAUG NAGARPALIKA AND THE POPULATIO N OF THE SAID VILLAGE IN THE YEAR 2009 WAS 3,086 PERSONS. THE LAND WAS RECOR DED AS AGRICULTURAL LAND IN THE RECORDS OF RIGHTS MAINTAINED BY THE DEPARTME NT OF REVENUE AND WAS SUBJECT TO PAYMENT OF LAND REVENUE. THE SAID LAND W AS NEVER PUT TO ANY NON- AGRICULTURAL USE BY THE ASSESSEE AND THAT THE ASSES SEE CARRIED ON AGRICULTURAL ACTIVITIES ON SAID LAND VIZ. PLANTING OF SAPLINGS O F MANGO, SUPARI, COCONUT, RICE AND VEGETABLES. THE LD. COUNSEL FURTHER SUBMITTED T HAT SINCE THE FINDINGS OF THE AO ARE BASED ON WRONG ASSUMPTIONS AND NOT BASED ON THE EVIDENCE ON RECORD, THE LD. CIT(A) OUGHT TO HAVE SET ASIDE THE SAME. SINCE, THE LD. CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT TAKING INTO C ONSIDERATION THE DOCUMENTARY AS WELL AS CIRCUMSTANTIAL EVIDENCE PLAC ED ON RECORD, THE SAME IS LIABLE TO BE SET ASIDE. 5 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 5. ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENT ATIVE (DR) RELYING ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW SU BMITTED THAT ENQUIRY CONDUCTED DURING ASSESSMENT PROCEEDINGS REVEALED TH AT THE LAND SOLD BY THE ASSESSEE AND HIS CO-OWNERS WAS NOT AN AGRICULTURAL LAND BUT WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE AC T. ENQUIRY CONDUCTED BY THE WARD INSPECTOR FURTHER ESTABLISHED THAT PURCHASER O F LAND SHRI. ABHIJIT BHANDARI HAS DEVELOPED A BANGALOW MAKING SUBSTANTIA L INVESTMENT AFTER GETTING THE LAND CONVERTED INTO NON-AGRICULTURAL LA ND WITH THE APPROVAL OF THE LAND REVENUE. AS PER THE LATEST 7/12 EXTRACT FURNIS HED BY THE OFFICE OF THE TALATHI, ALIBAUG THE LAND IN QUESTION WAS NEVER USE D FOR THE AGRICULTURAL PURPOSES TILL THE DATE OF SALE BY THE ASSESSEE AND OTHERS. THE LD. DR FURTHER SUBMITTED THAT THE LD. CIT(A) HAS UPHELD THE ASSESS MENT ORDER KEEPING IN VIEW THE LAW LAID DOWN BY THE HONBLE SUPREME COURT IN SMT. SARIFABIBI MOHMED IBRAHIM VS. CIT (1993) 204 ITR 631 (SC) , HONBLE JURISDICTIONAL HIGH COURT IN FAZALBHOY INVESTMENT CO P LTD. VS. CIT (1989) 176 I TR 523 (BOM) THE LD. DR FURTHER SUBMITTED THAT IN THE PRESENT CASE T HE PURCHASER HAS NOT PURCHASED THE SAID LAND FOR GENUINE AGRICULTURAL OP ERATION AS THE SALE PRICE WORKS OUT AT RS. 2.34 LACS PER GUNTHA I.E. 1000 SQ. FT. AND THAT RS. 2.34 LACS PER GUNTHA CANNOT BE THE PURCHASE PRICE FOR AN AGRI CULTURAL LAND. SINCE THE LAND WAS NEVER CULTIVATED BY THE ASSESSEE AND REMAI NED BARREN FOR MORE THAN TWELVE YEARS THE SAME HAD LOST OF ITS AGRICULTURAL CHARACTER. HENCE, THE LD. CIT(A) HAS RIGHTLY UPHELD THE FINDINGS OF THE A.O. AND THERE IS NO FURTHER SCOPE FOR INTERFERE WITH THE IMPUGNED ORDER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE MATERIAL PLACED ON RECORD BEFORE US INCLUDING THE DECISIONS RELIED UPON BY THE PARTIES IN SUPPORT OF THEIR CONTENTIONS. THE COMMON ISSUE I NVOLVED IN THESE CASE ARE AT THE TIME SALE OF THE LAND IN QUESTION WHETHER TH E LAND WAS AN AGRICULTURAL LAND OR THE CAPITAL ASSET WITHIN THE MEANING OF SEC TION 2(14) OF THE ACT. THE 6 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 LD. CIT(A) HAS UPHELD THE FINDINGS OF THE A.O RELYI NG ON THE VARIOUS JUDICIAL PRONOUNCEMENTS IN WHICH IT WAS HELD THAT A PIECE OF LAND CANNOT BE CHARACTERIZED AS AGRICULTURAL LAND MERELY BECAUSE OF ENTRIES IN THE REVENUE RECORDS TO THAT EFFECT. HOWEVER, IN THE PRESENT CA SE THE ASSESSEE HAS CLAIMED THAT AGRICULTURAL ACTIVITIES SUCH AS PLANTING OF MA NGO TREES, SUPARI TREES, COCONUT TREES, CULTIVATION OF RICE AND VEGETABLES E TC. WAS CARRIED ON BY THE ASSESSEE AS CO-OWNER IN POSSESSION OF THE LAND. THE ASSESSEE HAS SUBMITTED THE COPIES OF 7/12 EXTRACTS TO PROVE THE CLASSIFICA TION OF LAND AS AGRICULTURAL LAND, COPIES OF RECEIPTS ISSUED AGAINST THE LAND RE VENUE PAID TO PROVE THAT LAND IN QUESTION WAS AGRICULTURAL LAND AND LAND REVENUE WAS PAID ACCORDINGLY FROM TIME TO TIME, COPIES OF AFFIDAVITS SWORN BY MR. KES ARINATH PATIL AND MR. VIJAY WAKDE, TO ESTABLISH THAT THE LAND WAS USED FOR AGRI CULTURAL PURPOSES SINCE IT WAS ACQUIRED BY THE ASSESSEE AND OTHERS AND THEY US ED TO CARRY OUT THE AGRICULTURAL ACTIVITIES IN THE SAID LAND AND THEY W ERE PAID IN CASH OR KIND BY THE ASSESSEE. THE ASSESSEE HAS PLACED ON RECORD THE BILLS AND VOUCHERS TO PROVE THAT SEEDS FERTILIZERS PESTICIDES AND OTHER M ATERIALS REQUIRED FOR CARRYING ON AGRICULTURAL ACTIVITIES TO SUBSTANTIATE ITS CLAI M. THE ASSESSEE HAS ALSO SUBMITTED THE SITE PLAN TO SHOW THE LOCATION OF GRO UND WELL, BORE WELL, MANGO TREES, COCONUT TREES, SUPARI TREES, RICE AND VEGETA BLE CULTIVATION ETC. TO ESTABLISH THAT AGRICULTURAL LAND WAS SOLD BY THE AS SESSEE. 7. ON THE OTHER HAND THE LD. CIT(A) HAS CONFIRMED T HE FINDINGS OF THE AO MAINLY ON THE GROUND THAT THE LAND WAS NOT USED FOR AGRICULTURAL PURPOSES AND WAS LYING BARREN FROM THE YEAR 1996-97. THE AS SESSEE HAS NOT SHOWN ANY AGRICULTURAL INCOME IN THE INCOME TAX RETURN. THE P URCHASER AGREED TO PAY HEFTY PRICE OF RS. 421.00 LACS AS AGAINST THE STAMP VALUATION FOR AGRICULTURAL LAND OF JUST RS. 85.20 LACS AND SOON THEREAFTER CON VERTED THE LAND TO NON- AGRICULTURAL PURPOSES AND DEVELOPED A BUNGALOW MAKI NG SUBSTANTIAL INVESTMENT OF APPROX RS. 1.50 CRORES, SUCH PROVE TH E INTENTIONS OF THE PURCHASER TO USE THE LAND FOR OTHER PURPOSES OTHER THAN AGRICULTURAL. 7 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 8. RELYING ON THE DECISION OF HONBLE SUPREME COURT IN SMT. SARIFABIBI MOHMED IBRAHIM VS. CIT (SUPRA) THE LD CIT(A) HAS HELD THAT SINCE THE LAND IN QUESTION REMAINED UNCULTIVATED FOR LONG PERIOD IT C ANNOT BE TREATED AS AGRICULTURAL LAND AND IN ORDER TO TREAT A PIECE OF LAND AS AGRICULTURAL LAND, THE SAME MUST NOT ONLY BE CAPABLE OF BEING USED FOR AGR ICULTURAL PURPOSES BUT SHOULD HAVE ACTUALLY BEEN USED AS SUCH AT SOME POIN T OF TIME. AS PER THE LD. CIT(A) IN THE PRESENT CASE, THE ASSESSEE HAS FAILED TO PROVE THAT THE LAND WAS ACTUALLY USED FOR AGRICULTURAL PURPOSES. 9. IN SMT. SARIFABIBI MOHMED IBRAHIM VS. CIT (SUPRA) THE HONBLE SUPREME COURT HAS UPHELD THE DECISION OF HONBLE GUJARAT HIGH COURT AND HELD THE LAND IN QUESTION WAS NOT AN AGRICULTURAL LAND AT TH E TIME OF ITS SALE AND THAT THE INCOME ARISING FROM ITS SALE WAS NOT EXEMPT FRO M THE CAPITAL GAIN TAX IRRESPECTIVE OF THE FACT THAT THE LAND WAS REGISTER ED AS AGRICULTURAL LAND IN THE REVENUE RECORD; THE APPELLANT MADE PAYMENT OF LAND REVENUE TILL IT WAS SOLD IN THE YEAR 1969; THAT THE LAND WAS ACTUALLY CULTIVATE D TILL 1964-65. THE HONBLE SUPREME COURT IN THE AFORESAID CASE HAS FURTHER HEL D THAT WHETHER A LAND IS AN AGRICULTURAL LAND OR NOT IS ESSENTIALLY A QUESTION OF FACT. THE SEVERAL TESTS EVOLVED BY THE COURTS ARE MORE IN THE NATURE OF GUI DELINES. THEREFORE, THE QUESTION HAS TO BE ANSWERED ON CONSIDERATION OF ALL OF THEM. 10. WE FIND THAT THE AO HAS DECIDED THE ISSUE INVOL VED IN THIS CASE WITHOUT REBUTTING THE DIRECT AND CIRCUMSTANTIAL EVIDENCE ON RECORD WHICH IS IN FAVOUR OF THE ASSESSEE. NO VERIFICATION WAS CONDUCTED BY T HE AO TO FALSIFY THE DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCE PLACED ON R ECORD BY THE ASSESSEE. EVEN THE PERSONS WHO CARRIED OUT THE AGRICULTURAL A CTIVITIES AT THE INSTANCE OF THE ASSESSEE WERE NOT EXAMINED TO CONTROVERT THE CO NTENTS OF THE AFFIDAVITS SWORN BY THEM. BEFORE US, THE COUNSEL FOR THE ASSE SSEE PLACED ON THE RECORD THE COPY OF APPLICATION DATED 23/03/2010 UNDER SUB- SECTION (1) OF SECTION 44 8 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 OF MAHARASHTRA LAND REVENUE ACT, 1966 SUBMITTED BY THE PURCHASER OF THE LAND SH. ABHIJIT BHANDARI FOR PERMISSION FOR USING THE LAND FOR HORTICULTURE OR SIMILAR PURPOSES. THE CONTENTS OF THE SAID APPLICAT ION FURTHER ESTABLISH THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND IN THE Y EAR 2010 WHEN THE SAID APPLICATION WAS MOVED. FURTHER WE FIND THAT THE FAC TS OF THE PRESENT CASE ARE DIFFERENT FROM THE FACTS OF THE CASE OF SMT. SARIFABIBI MOHMED IBRAHIM (SUPRA) RELIED ON BY THE LD CIT(A) ON CERTAIN MATERIAL POIN TS. IN THE SAID CASE, THE PROPERTY WAS SITUATED WITHIN THE LIMITS OF SURAT MU NICIPALITY AND AT THE DISTANCE OF ONE K.M. FROM SURAT RAILWAY STATION. A PORTION OF THE PLOT HAD ALREADY BEEN CONVERTED TO NON-AGRICULTURAL PURPOSES AFTER OBTAINING REQUISITE PERMISSION FROM THE CONCERNED AUTHORITY. THE LAND W AS SOLD AT PER SQ. YARD BASIS TO A CO-OPERATIVE HOUSING SOCIETY FOR CONSTRU CTING HOUSE AND BUILDINGS. NO AGRICULTURAL OPERATIONS SUCH AS GROWING OF WHEAT , BAJRA, JAWAR, RICE OR ANY OTHER CROP HAD BEEN CARRIED ON FOR THE LAST FOUR YE ARS. ON THE OTHER HAND IN THE PRESENT CASE THE LAND WAS SOLD TO AN AGRICULTUR IST WHO LATER ON CONVERTED THE LAND FOR NON-AGRICULTURAL PURPOSES AFTER OBTAIN ING PERMISSION FROM THE COMPETENT AUTHORITY. MOREOVER, IN THE PRESENT CASE NEITHER THERE IS ANY COGENT EVIDENCE TO REBUT THE PRESUMPTION OF TRUTH ATTACHED WITH THE REVENUE RECORD MAINTAINED BY THE DEPARTMENT NOR ANY VERIFICATION W AS CONDUCTED BY AO DURING ASSESSMENT TO REBUT THE DOCUMENTARY EVIDENCE PLACED ON RECORD BY THE ASSESSEE TO FALSIFY CONTENTION OF THE ASSESSEE. THE AUTHORITIES BELOW HAVE NOT GIVEN ANY COGENT AND CONVINCING REASON FOR DISBELIE VING THE DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCE DISCUSSED IN THE FOREGOING PARAS WHICH, IN OUR CONSIDERED OPINION, PRIMA FACIE ESTABLISH THAT THE LAND IN QUESTION WAS AN AGRICULTURAL LAND WITHIN THE PROVISIONS OF THE ACT AT THE TIME OF SALE TO THE PURCHASER. SINCE, IN OUR CONSIDERED OPINION THE ASS ESSEE HAS BEEN ABLE TO ESTABLISH THAT THE LAND IN QUESTION AT THE TIME OF ITS SALE WAS AN AGRICULTURAL LAND AND NOT A CAPITAL ASSET WITHIN THE DEFINITION OF SECTION 2(14) OF THE ACT, THE LD. CIT(A) HAS WRONGLY AFFIRMED THE FINDINGS OF THE AO. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND ALLOW THIS GROUND OF A PPEAL OF THE ASSESSEE. 9 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 11. SINCE, WE HAVE DECIDED THE FIRST GROUND OF APPE AL IN FAVOUR OF THE ASSESSEE, GROUND NO 2 HAS BECOME ACADEMIC. HENCE, W E DO NOT CONSIDER IT NECESSARY TO ADJUDICATE THE SAID GROUND. 12. SO FAR AS ITA NO 365/MUM/14 AND 367/MUM/14 ARE CONCERNED, THE APPELLANTS/ASSESSES BEING CO-OWNERS OF THE LAND IN QUESTION ALSO SOLD THEIR SHARES IN THE SAID LAND ALONG WITH SH. MOHIT SURESH HARCHANDRAI, ASSESSEE IN ITA NO 364/MUM/14. HENCE, THE FACTS OF BOTH THESE C ASE ARE SIMILAR TO THE FACTS OF THE CASE ITA NO 364/MUM/14 AFORESAID EXCEP T ON THE POINT THAT ASSESSMENT IN THE SAID CASES WERE PASSED U/S 143(3) AND 143(3)(II) OF THE ACT RESPECTIVELY, AND THE ISSUES INVOLVED ARE ALSO IDEN TICAL. SINCE WE HAVE ALLOWED THE APPEAL ITA NO 356/MUM/14 FILED BY ONE OF THE CO -OWNERS OF THE LAND IN QUESTION, SH. MOHIT SURESH HARCHANDRAI, BY SETTING ASIDE THE IMPUGNED ORDER, WE ALSO SET ASIDE THE IMPUGNED ORDERS PASSED BY THE LD. CIT(A) PASSED IN ITA NO 365/MUM/14 AND ITA NO 367/MUM/14 FILED BY THE AS SESSEES MR. NIHAL SURESH HARCHANDRAI AND MR. NIRJAN SURESH HARCHANDRA I, OTHER CO-OWNERS ON THE SAME REASONING. 13. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEE FOR THE A.Y.2010- 11 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 28 TH FEBRUARY, 2017. SD/- SD/- ( JASON P BOAZ ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:28/02/2017 10 ITA NO. 364, 365 & 367/MUM/2013 ASSESSMENT YEAR: 2010-11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA