The DCIT, Cochin V. Smt.Seena Jojy, Cochin

ITA 496/COCH/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8580 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 19-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 09-10-2015
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Capital asset; Revised return
• Section: 54B; 54F; 2(14)

Judgement Text

ITA NO.496/COCH/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI B P JAIN, AM & GEORGE GEORGE.K, JM ITA NO.496/COCH/2015 (ASST YEAR : 2007-08) THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, NON- CORPORATE, KOCHI. SMT. SEENA JOJY, 1 ST FLOOR,KADAVIL BUILDING, MAIN AVENUE, PANAMPILLY NAGAR, COCHIN-682 036. ( REVENUE APPELLANT) VS (ASSESSEE -RESPONDENT) PAN NO. ABBPJ 8240P REVENUE BY SHRI K.P. GOPAKUMAR, SR. DR ASSESSEE BY SHRI R. VIJAYARAGHAVAN, ADV. DATE OF HEARING 19/05/2016 DATE OF PRONOUNCEMENT 01/06/2016 ORDER PER B.P. JAIN, AM: THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS DIR ECTED AGAINST THE ORDER OF THE CIT (A)-II, KOCHI, DATED 29.07.2015. THE RELEVANT ASSE SSMENT YEAR IS 2007-08. 2. THE REVENUE HAS, IN ITS GROUNDS OF APPEAL, RAIS ED A SOLITARY ISSUE, NAMELY, IS: WHETHER THE CIT (A) WAS JUSTIFIED IN DELETING THE A DDITION MADE UNDER LONG TERM CAPITAL GAINS [LTCG] HOLDING THAT THE LAN D IN QUESTION WAS AN AGRICULTURAL LAND? 3. BRIEFLY STATED, THE FACTS OF THE ISSUE ARE AS F OLLOWS: ITA NO.496/COCH/2015 2 THE ASSESSEE, AN INDIVIDUAL, HAD FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR [AY] UNDER DISPUTE, ORIGINALLY, ON 20.10.2007, DISCLOSING AN INCOME OF RS.95,87,403/-, ADMITTING LTCG OF RS.1,00,59,554/- ON SALE OF A LAND AD-MEASURING 53 ACRES. HOWEVER, IN HER REVISED RETURN, THE TOTAL I NCOME WAS CLAIMED AT RS.NIL WHEREBY SHOWING THE LTCG AT RS.NIL BY TREATING THE LAND AS AGRICULTURAL. AFTER DUE CONSIDERATION OF THE ASSESSEES CLAIM THAT THE SUBJECT LAND WAS A GRICULTURAL, THE AO TOOK A VIEW, AMONG OTHERS, THAT A MERE FACT THAT THE LAND WAS LOCATED OUTSIDE THE L IMITS OF CORPORATION OR MUNICIPALITY AND NOT WITHIN THE NOTI FIED URBAN AREA DOES NOT CHANGE THE CHARACTER OF THE LAND VIS--VIS THE LIABILITY TO CA PITAL GAINS TAX. THE AO HAD, THEREFORE, HELD THAT THE LAND SOLD WAS NOT AN AGRICULTURAL AND , HENCE, CANNOT BE EXCLUDED FROM THE EXPRESSION CAPITAL ASSET AS PROVIDED UNDER SUB-CL AUSE (III) OF CLAUSE (14) OF S. 2 OF THE INCOME-TAX ACT [ACT]. ACCORDINGLY, THE AO HAD CON CLUDED THE ASSESSMENT BY DETERMINING THE LTCG AT RS.1,00,08,682/- ON THE SAL E OF THE SUBJECT LAND. 4. AGGRIEVED, THE ASSESSEE TOOK UP THE ISSUE WITH THE CIT (A). AFTER DUE CONSIDERATION OF THE SUBMISSIONS OF THE ASSESSEE, R EASONING OF THE AO AND IN CONSONANCE WITH THE FINDINGS OF THE EARLIER BENCH O F THIS TRIBUNAL IN THE CASE OF M.J.THOMAS & OTHERS V. DY CIT IN ITA NO.224/COCH/20 11 DATED 6.3.2014, THE CIT (A) HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOR THE FOLLOWING REASONS: 10. THE ASSESSEES LAND IS STATED TO BE LAND LYIN G IN THE NEIGHBORHOOD OF SHRI N.J.THOMAS AND OTHERS, IN WHOSE CASE THE LEARNED BE NCH OF ITAT HAS TAKEN A DECISION, WHERE THE LAND UNDER TRIKKAKARA PANCHAYAT , AFTER ELABORATE ANALYSIS OF ALL THE FACTS AND THE APPLICABILITY OF THE RATIO PRONOUNCED IN THE CASE OF SMT SARIFABIBI MOHMED IBRAHIM & OTHERS V. CIT (204 ITR 631) IS HELD AS AGRICULTURAL LAND. THE LEARNED BENCH HAS ALSO ANAL YZED AND FOUND THAT THE ITA NO.496/COCH/2015 3 RATIO PRONOUNCED BY THE HONBLE KERALA HIGH COURT I N THE CASE OF SMT ASHA GEORGE IS ALSO NOT APPLICABLE TO THE FACTS OF THE I NSTANT CASE. PREDOMINANTLY, THE FINDINGS ARE BASED ON THE ACTUAL LOCATION OF THE LA ND AS WELL AS THE SUBSEQUENT DE-NOTIFICATION OF LAND LYING UNDER TRIKKAKARA PANC HAYAT IN ERNAKULAM DISTRICT. IN VIEW OF THIS, THE ADDITION MADE BY TH E ASSESSING OFFICER IS DELETED AND THE ASSESSEES APPEAL ON THIS GROUND IS ALLOWED . 5. AGGRIEVED, THE REVENUE HAS COME UP WITH THE PRE SENT APPEAL BEFORE US. DURING THE COURSE OF HEARING, THE SUBMISSIONS MADE BY THE LEARNED DR ARE SUMMARIZED AS UNDER: > THAT THE CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO RELYING ON THE FINDINGS OF THE EARLIER BENCH OF THIS HONBLE TRIBU NAL IN THE CASE OF M.J. THOMAS & OTHERS (SUPRA). WHETHER A PIECE OF LAND WAS AGRICU LTURAL OR NOT WILL DEPEND ON THE FACTS OF EACH CASE AND ALSO THE FACTS BROUGHT ON RECORD. THERE CANNOT BE ANY LAW IN TOTO. JUST BECAUSE OF A PIECE OF LAND IN AN ADJACENT AREA WAS TREATED AS AGRICULTURAL WILL NOT NECESSARILY MEAN THAT THE LAND IN THE ASSESSEES CA SE WILL AUTOMATICALLY BECOMES AGRICULTURAL IN NATURE; > THAT THE CIT (A) ERRED IN IGNORING THE CATEGORICA L FINDINGS OF THE AO IN THE CASE AS WHY THE SUBJECT LAND CANNOT BE TREATED AS AGRICULTU RAL. THAT THE FINDINGS OF TRIBUNAL IN THE CASE OF M.J. THOMAS & OTHERS (SUPRA) BASED ON T HE FACTS OF THAT CASES DOES NOT IMPLY THAT ALL LANDS ADJACENT TO THAT LAND WILL BE TREATED AS AGRICULTURAL; > THAT THE CIT (A) ERRED IN DELETING THE IMPUGNED A DDITION WITHOUT CONSIDERING THE FACT THAT TO WHAT USE THE BUYER OF THE LAND HAD PUT IT TO. IN THIS CASE, THE LAND WAS ACQUIRED BY M/S. DLF SOUTHERN TOURS P LTD FOR CONST RUCTION OF RESIDENTIAL APARTMENTS. THAT THE CIT (A) OUGHT TO HAVE CONSIDERED THE RULIN G OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF GOPAL C SHARMA V. CIT REPORTE D IN 209 ITR 946 (BOM) WHEREIN IT WAS HELD THAT THE UNDERLYING OBJECT OF THE ACT TO E XEMPT AGRICULTURAL INCOME FROM INCOME-TAX WAS TO ENCOURAGE ACTUAL CULTIVATION OR D E FACTO AGRICULTURAL OPERATIONS. ACTUAL USER OF THE LAND FOR AGRICULTURAL PURPOSE OR ABSENCE THEREOF AT THE RELEVANT TIME WAS UNDOUBTEDLY ONE OF THE CRUCIAL TESTS FOR DETERM INATION OF THE ISSUE, AS TO WHETHER THE LAND IN QUESTION WAS LIABLE TO BE CONSIDERED AS AGRICULTURAL LAND FOR THE PURPOSE OF INCOME-TAX. IT WAS WELL SETTLED THAT THE NATURE AN D CHARACTER OF LAND MAY UNDERGO CHANGE DEPENDING UPON ITS SITUATION, GROWTH OF LOCA LITY, ZONE IN WHICH IT WAS SITUATED AND ITS POTENTIALITY. THE FACT THAT THE LAND WAS S OLD OR TRANSFERRED TO A NON-AGRICULTURIST FOR A NON-AGRICULTURAL PURPOSE OR THAT IT WAS LIKEL Y TO BE USED FOR NON-AGRICULTURAL PURPOSE SOON AFTER ITS TRANSFER WAS ALSO RELEVANT FACTOR GE RMANE TO THE DETERMINATION OF THE ISSUE; &LAND RECORD > THAT THE CIT (A) OUGHT TO HAVE CONSIDERED THE RUL ING OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. GEMINI PICTURES CIRCUIT P LTD REPORTED IN 220 ITR 43 (SC) ITA NO.496/COCH/2015 4 WHEREIN IT WAS HELD THAT FOR ASCERTAINING THE TRUE CHARACTER AND NATURE OF THE LAND, IT MUST BE SEEN WHETHER IT HAS BEEN PUT TO USE FOR AGR ICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME PRIOR TO THE DATE OF SALE AND FURTHER WHETHER ON THE DATE OF SALE THE LAND WAS INTENDED TO BE PUT TO USE FOR AGRICULTURAL PURP OSES FOR A REASONABLE SPAN OF TIME IN FUTURE. IN CONCLUSION, THE LEARNED DR PLEADED SINCE THERE WAS NO INFIRMITY IN THE CONCLUSION OF THE AO, THE FINDING OF THE CIT (A) WA S NOT JUSTIFIED AND, THEREFORE, THE SAME REQUIRES TO BE DELETED. 6. ON THE OTHER HAND, THE LEARNED AR REITERATED WH AT HAS BEEN SUBMITTED BEFORE THE FIRST APPELLATE AUTHORITY. IN FURTHERAN CE, IT WAS SUBMITTED THAT THE USE OF THE LAND BY THE BUYER WAS NOT WITHIN CONTROL OF THE SEL LER SINCE THE SALE WAS ABSOLUTE AND THAT THE SELLER CANNOT IMPOSE ANY RESTRICTION ON TH E ACTION OF THE BUYER SUBSEQUENT TO THE PURPOSE OF THE LAND. IT WAS, FURTHER, SUBMITTE D THAT IF THE BUYER (S) OBTAIN NECESSARY PERMISSION FROM THE APPROPRIATE AUTHORITIES FOR THE UTILIZATION OF THE LAND LATER ON FOR NON- AGRICULTURAL PURPOSES, THE SELLER CANNOT BE PENALIZ ED. THE ASSESSEE HAD NOT DIRECTLY CONTRACTED WITH THE BUYER FOR THE SALE OF THE LAND. THE SALE TO THE BUYER WAS AS NOMINATED BY AN INTER-MEDIATORY WHO HAD CONTRACTED FOR THE PURPOSE OF THE LAND FROM THE ASSESSEE. IN OTHER WORDS, THE ASSESSEE HAD NO REASON TO SUSPECT THAT THE SUBJECT LAND WAS BEING SOLD FOR ANY NON-AGRICULTURAL PURPOS E. IT WAS, FURTHER, CONTENDED THAT THE AO HAD NOT CONDUCTED ANY INQUIRY WITH REGARD TO THE NATURE OF LAND AS PER REVENUE RECORDS. IT WAS THE STAND OF THE LEARNED AR THAT T HE ASSESSEE HAD SOLD THE LAND TO SHRI P.C. JOSE AND AT THAT POINT TIME OF SALE, THE SUBJE CT LAND IN QUESTION WAS AGRICULTURAL LAND AS PER THE VILLAGE RECORDS. PERMISSION OBTA INED BY THE SECOND AND THIRD BUYERS TO CONVERT THE LAND TO NON-AGRICULTURAL PURPOSE WAS NO T WITHIN THE AMBIT OF THE ASSESSEE AND, THEREFORE, IT CANNOT BE A VALID REASON TO DENY EXEMPTION AS CLAIMED IN THE REVISED ITA NO.496/COCH/2015 5 RETURN. TO SUBSTANTIATE HIS CONTENTIONS, THE LEARN ED AR HAD PRODUCED PHOTO-STAT COPIES OF (I) LAND RECORDS SHOWING THAT IT WAS AN AGRICUL TURAL LAND, EXTRACT OF BASIC TAX RECORD AND A CERTIFICATE FROM THE VILLAGE OFFICER.; AND (I I) LOCATION MAP OF SUBJECT LAND IN SURVEY NO.375 ISSUED BY THE ASST. DIRECTOR OF SURVEY & SE TTLEMENT IN THE FORM OF A PAPER BOOK. 7. IN CONCLUSION, THE LEARNED AR HAD STRONGLY URGE D THAT SINCE THE CIT (A) HAD, AFTER ANALYZING THE RIVAL SUBMISSIONS AND IN C ONFORMITY WITH THE FINDINGS OF THE EARLIER BENCH OF THIS TRIBUNAL IN THE CASE OF N.J. THOMAS & OTHERS V. DCIT (SUPRA) AND THE RULING OF THE HONBLE SUPREME COURT IN THE CASE OF SMT. SARIFABIBI MOHAMED IBRAHIM & OTHERS V. CIT REPORTED IN 204 ITR 631 (SC), DECID ED THE ISSUE IN FAVOUR OF THE ASSESSEE, THE SAME REQUIRES TO BE SUSTAINED. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS, PERUSED THE RELEVANT CASE RECORDS, THE FINDINGS OF THE EARLIER BENCH OF THIS TRIBUNAL (SUPRA) AND ALSO THE DOCUMENTARY EVIDENCES PRODUCED BY THE ASSESSEE AT T HE TIME OF HEARING BEFORE US. 9. THE CRUX OF THE ISSUE RAISED BY THE REVENUE FOR ADJUDICATION IS: WHETHER THE CIT (A) WAS JUSTIFIED IN HIS STAND IN DELETING THE ADDITION MADE UNDER LTCG BY THE AO? IT WAS THE CASE OF THE ASSESSEE THAT THE SUBJECT LAND WAS SITUATED IN KAKKANAD VILLAGE IN THRIKKAKARA PANCHAYAT OF ERNAKU LAM DISTRICT. THRIKKAKARA PANCHAYAT WAS A NOTIFIED AREA FOR THE PURPOSE OF S. 2(1A) OF THE I.T. ACT TILL 1993. HOWEVER, ACCORDING TO A REVISED NOTIFICATION, THRIK KAKARA PANCHAYAT WAS EXCLUDED ITA NO.496/COCH/2015 6 W.E.F. 1993. IT WAS URGED THAT THE VERY PURPOSE OF DE-NOTIFYING THE AREA FROM 1993 SHOULD BE CONSIDERED FOR EXTENDING THE BENEFIT OF A GRICULTURAL LAND TO PROPERTIES SITUATED THEREIN AND THE BENEFITS CONFERRED BY SUCH LEGISLAT ION CANNOT BE DENIED FOR A SIMPLE REASON THAT THE PROCEEDS REALIZED ON THE HIGHER SID E. HOWEVER, THE AO TOOK A STAND THAT IN THE ABSENCE OF EVIDENCE TO PROVE THAT AGRIC ULTURAL OPERATIONS WERE CARRIED OUT IN THE LAND SOLD BY THE ASSESSEE AND THAT NO AGRICULTU RAL LAND COULD HAVE FETCHED SUCH A HIGHER PRICE/COMPENSATION UNLESS IT WAS IDEALLY SIT UATED FOR INDUSTRIAL AND RESIDENTIAL HUB. 10. THE QUESTION NOW ARISES FOR OUR CONSIDERATION IS WHETHER THE SUBJECT LAND WHICH IS SITUATED IN KAKKANAD VILLAGE FALLS WITHIN THE JURISDICTION OF THE MUNICIPALITY OR WITHIN 8 KMS RADIUS OF THE NOTIFIED MUNICIPALITY. OBVIOUSLY, KAKKANAD VILLAGE WHERE THE SUBJECT LAND WAS SITUATED FALLS WITHIN THE TERRITOR IAL JURISDICTION OF TRIKAKARA PANCHAYAT AT THAT RELEVANT TIME. TRIKKAKARA PANCHAYAT WAS A NOTI FIED AREA BY A NOTIFICATION OF THE CBDT DATED 6.2.1973 WHICH WAS SUBSEQUENTLY SUPERSED ED BY ANOTHER NOTIFICATION DATED 6.1.1994 EXCLUDING TRIKKARA PANCHAYAT FOR THE PURPOSE OF CAPITAL GAINS. THUS, TRIKKAKARA PANCHAYAT WAS NOT A NOTIFIED AREA ON AND AFTER 6.1.1994. IN THE SAID NOTIFICATION, KOCHI MUNICIPALITY WAS A NOTIFIED MUN ICIPALITY INCLUDING PART OF ELOOR AND MARADU PANCHAYATS UP-TO A DISTANCE OF 8 K.MS FROM T HE MUNICIPAL LIMITS. THEREFORE, IT WAS AN ADMITTED FACT THAT THE SUBJECT LAND WAS BEYO ND MUNICIPAL LIMIT OR BEYOND 8 K.M.S RADIUS FROM KOCHI MUNICIPAL LIMITS. IT WAS, THEREF ORE, OBVIOUS THAT KAKKANAD VILLAGE WHERE THE DISPUTED LAND SITUATED DOES NOT FORM PART OF THE NOTIFIED AREA AND, HENCE, THE AGRICULTURAL LAND SITUATED IN KAKKANAD VILLAGE WHIC H COMES UNDER TRIKAKARA PANCHAYAT WAS EXCLUDED FROM THE DEFINITION OF CAPITAL ASSET U /S 2 (14) OF THE ACT. THE AGRICULTURAL ITA NO.496/COCH/2015 7 LANDS IN QUESTION SITUATED IN KAKKANAD VILLAGE WHIC H FALLS IN TRIKAKARA PANCHAYAT DOES NOT FALL WITHIN THE DEFINITION OF CAPITAL ASSET U/S 2 (14) OF THE ACT. 11. THE ISSUE NOW REQUIRES FOR CONSIDERATION IS: W HETHER THE SUBJECT LAND WAS AN AGRICULTURAL OR NOT? AS A MATTER OF FACT, THE S UBJECT LAND WAS CLASSIFIED AS AGRICULTURAL IN THE REVENUE RECORDS AND A COPY OF THE CERTIFICAT E OBTAINED FROM THE VILLAGE OFFICER, KAKKANAD WAS ALSO PLACED ON RECORD WHEREIN IT HAS B EEN MENTIONED THAT THE LAND IN THE SAID SURVEY NUMBERS WERE NILAM MEANING IN VERNACU LAR WET LAND. [REFER PAGE 44 OF P.B]. AT THIS JUNCTURE, WE WOULD LIKE TO REFER TO THE FINDINGS OF THE EARLIER BENCH OF THIS TRIBUNAL IN THE CASE OF M.J. THOMAS & OTHERS V. DCI T (SUPRA) WHEREIN AN IDENTICAL ISSUE HAD CROPPED UP FOR ADJUDICATION. AFTER TAKING INTO ACCOUNT THE RIVAL SUBMISSIONS, EXHAUSTIVELY ANALYZING THE PROVISIONS OF SECTIONS 2 (14), 45, 54B OF THE ACT AND ALSO RULINGS OF THE VARIOUS HONBLE COURTS ON THE ISSUE, THE EARLIER BENCH OF THE TRIBUNAL OF THE VIEW THAT 28. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT O F THE APEX COURT IN THE CASE OF SARIFABIBI MOHMED IBRAHIM AND OTHERS V. CIT (1993) 204 ITR 631 (SC). IN THE CASE BEFORE THE APEX COURT, THE ASSESS EE SOLD A PIECE OF LAND SITUATED WITHIN THE REVENUE LIMITS OF NAVAGAON VILL AGE IN THE MUNICIPAL LIMITS OF SURAT MUNICIPALITY. IN THE YEAR 1967, THE ASSESSEE AGREED TO SELL THE LAND TO A HOUSING SOCIETY. THE ASSESSEE CLAIMED THE GAIN ON T RANSFER OF SUCH LAND AS EXEMPT U/S 2 (14) OF THE ACT. THE APEX COURT FOUND THAT THE ASSESSEE APPLYING FOR PERMISSION TO SELL THE LAND FOR NON-AGRICULTURA L PURPOSE AND IMMEDIATELY AFTER APPLICATION FOR CONVERSION OF LAND, THE LAND WAS NOT CULTIVATED FOR A PERIOD OF FOUR YEAR. IN THOSE FACTUAL CIRCUMSTANCES, THE APEX COURT FOUND THAT THE LAND IN QUESTION IS NOT AN AGRICULTURAL LAND. IN T HE CASE BEFORE US, THE ASSESSEE HAS NOT APPLIED FOR CONVERSION OF LAND FOR NON-AGRI CULTURAL PURPOSE. THE LAND IN QUESTION IS CLASSIFIED AS AGRICULTURAL LAND AND THE VILLAGE OFFICER CERTIFIED THAT THE LAND WAS SUBJECTED TO CULTIVATION. THE ASSESSE E IS CONTRIBUTING TO THE AGRICULTURAL LABOURERS WELFARE FUND AND ALSO PAYIN G REVENUE TAX AS AGRICULTURAL LAND WHICH IS EVIDENCE FROM BASIC TAX REGISTER. IN VIEW OF THE MATERIAL AVAILABLE ON RECORD DISCLOSING THE CULTIVA TION OF LAND, THIS TRIBUNAL IS ITA NO.496/COCH/2015 8 OF THE CONSIDERED OPINION THAT JUDGMENT OF THE APEX COURT IN THE CASE OF SARIFABIBI MOHMED IBRAHIM AND OTHERS (SUPRA) MAY NO T BE APPLICABLE TO THE FACTS OF THE CASE. 29. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGME NT OF THE KERALA HIGH COURT IN THE CASE OF SMT. ASHA GEORGE (SUPRA). IN THE CASE BEFORE KERALA HIGH COURT IN THE CASE OF SMT. ASHA GEORGE (SUPRA), THE QUESTION AROSE FOR CONSIDERATION WAS EXEMPTION U/S 54B AND 54F OF THE ACT. ONE OF THE PRE- CONDITIONS FOR GRANT OF EXEMPTIONS U/S 54B AND 54F IS THAT THE LAND SHOULD BE USED FOR CULTIVATION IMMEDIATELY TWO YEARS BEFORE T HE DATE OF TRANSACTION. SUCH A CONDITION IS NOT AVAILABLE FOR TREATING THE LAND AS CAPITAL ASSET U/S 2(14) OF THE ACT. THEREFORE, AS OBSERVED EARLIER, WHAT IS REQUI RED IS THE CONNECTION BETWEEN THE LAND AND THE AGRICULTURAL PURPOSE AND IF THE LA ND IS CULTIVATED IN ANY OF THE EARLIER YEARS, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE LAND HAS TO BE TREATED AS AGRICULTURAL LAND. THE MATERIAL EVIDENC E PRODUCED BY THE ASSESSES ARE (I) THE CERTIFICATE ISSUED BY THE VILLAGE OFF ICER; (II) CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER; (III) CLASSIFICATION OF LAND BY STATE GOVERNMENT AS AGRICULTURAL LAND; (IV) RECEIPT FOR PAYMENT OF CONT RIBUTION TO AGRICULTURAL WORKERS WELFARE FUND; AND (V) BASIC TAX REGISTER. THE ASSESSEES ARE ALSO CONTRIBUTING TOWARDS AGRICULTURAL WORKERS WELFARE FUND. THE VILLAGE OFFICER CERTIFIED THAT THE SUBJECT LANDS WERE SUBJECTED TO CULTIVATION. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE SUBJECT LANDS WERE AGRICULTURAL LANDS BEYOND THE MUNICIPAL LIMITS OR BEYOND 8 KMS RADIUS OF THE NOTIFIED MUNICIPALITY. THEREFORE, THE SUBJECT LAND CANNOT BE TREATED AS CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) O F THE ACT; HENCE NOT LIABLE FOR CAPITAL GAIN TAX UNDER THE INCOME-TAX ACT. THE LAND WHICH WAS SUBJECT MATTER FOR ADJUDICATION BY THE EARLIER BENCH OF THIS TRIBUNAL (SUPRA) WAS, INCIDENTALLY, SITUATED ADJACENT TO THE LAND UNDER DISPUTE. 12. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMST ANCES OF THE ISSUE AS DELIBERATED UPON IN THE FORE-GOING PARAGRAPHS AND A LSO IN CONFORMITY WITH THE FINDINGS OF THE EARLIER BENCH OF THIS TRIBUNAL (SUPRA), WE ARE OF THE VIEW THAT THE SUBJECT LAND CANNOT BE TREATED AS CAPITAL ASSET WITHIN THE MEANING OF S ECTION 2(14) OF THE ACT AND, HENCE, NOT LIABLE FOR CAPITAL GAIN TAX UNDER THE INCOME-TA X ACT. IN SUBSTANCE, THE ISSUE RAISED BY THE REVENUE IS REJECTED. ITA NO.496/COCH/2015 9 13. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01-06-2016. SD/- SD /- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : COCHIN DATED: 1 ST JUNE, 2016 GJ COPY TO: 1. SMT. SEENA JOJY, 1 ST FLOOR,KADAVIL BUILDING, MAIN AVENUE, PANAMPILLY NA GAR, COCHIN-682 036. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1 , NON-CORPORATE, KOCHI. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX,KOCHI. 5. THE DR/ITAT, COCHIN BENCH. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN ITA NO.496/COCH/2015 10 1.DATE OF DICTATION : 25/05/2016 2.DATE ON WHICH THE TYPED DRAFT IS PLACED 30/05/20 16 BEFORE THE DICTATING MEMBER OTHER MEMBER: 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . PS/PS: 31/05/2016 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER : 31/05/2016 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. PS/PS : 6. DATE ON WHICH THE FILE GOES TO BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO HEAD CLERK: 8. DATE ON WHICH THE FILE GOES TO ASSISTANT REGISTR AR 9. DATE OF DISPATCH OF THE ORDER: