DCIT, CHENNAI V. Ms. Gunawanthi, CHENNAI

ITA 633/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4533 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: DR ANITA SUMANTH
• Keywords: Capital asset
• Section: 2(14); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER I.T.A. NO. 633/MDS/2012 ASSESSMENT YEAR 2007-08 DEPUTY COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE-I, CHENNAI 34. VS MS. GUNAWANTHI, 25, CHARI ST., T. NAGAR, CHENNAI 17. [PAN: AAEPG 4984 H] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ANIRUDH RAI, CIT-DR ASSESSEE BY : DR.ANITA SUMANTH,ADVOCATE DATE OF HEARING : 30-07-2013 DATE OF PRONOUNCEMENT : 12-08-2013 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER THE APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-VI, CHEN NAI DATED 13-12-2011 RELEVANT TO THE ASSESSMENT YEAR (AY) 200 7-08. I.T.A. NO. 633/MDS/2012 :- 2 -: 2. THE ASSESSEE FILED RETURN OF INCOME FOR THE AY. 2007-08 ON 27-03-2008 DECLARING HER INCOME AS ` 26,67,842/- AND AGRICULTURAL INCOME AS ` 24,850/-. THE RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) O N 06-02-2009 DURING THE PERIOD RELEVANT TO THE AY. 2007-08, THE ASSESSEE HAD SOLD A PIECE OF LAND MEASURING 2.14 ACRES FALLING W ITHIN THE REVENUE ESTATE OF IYYAPPANTHANGAL PANCHAYAT OF SRIP ERUMBUDUR TALUK, KANCHEEPURAM DISTRICT. THE ASSESSEE HAD PUR CHASED THE LAND ON 19-10-1994. THE ASSESSEE ALLEGED THE LAND TO BE AGRICULTURAL IN NATURE AND HENCE TREATED THE SALE P ROCEEDS OF THE LAND AS EXEMPT FROM CAPITAL GAINS TAX. THE ASSESSI NG OFFICER MADE ENQUIRIES ABOUT THE LOCATION, NATURE ETC., OF THE LAND AND CAME TO THE CONCLUSION THAT THE LAND IS NON-AGRICUL TURAL. THE ASSESSING OFFICER ISSUED NOTICE U/S. 148 OF THE ACT ON 05-01-2010. AFTER TAKING INTO CONSIDERATION THE D OCUMENTS FILED BY THE ASSESSEE AS WELL AS THE SUBMISSIONS OF THE A R OF THE ASSESSEE, THE ASSESSING OFFICER HELD THAT THE LAND SOLD BY THE ASSESSEE AT IYYAPPANTHANGAL PANCHAYAT OF SRIPERUMB UDUR TALUK, KANCHEEPURAM DISTRICT CANNOT BE CLASSIFIED AS AGRIC ULTURAL LAND I.T.A. NO. 633/MDS/2012 :- 3 -: AND THUS THE GAINS ARISING FROM THE SALE OF THE LAN D IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS. ACCORDINGLY, THE A SSESSING OFFICER MADE ADDITION OF ` 12,23,82,098/- AS LONG TERM CAPITAL GAINS. 3. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSE SSEE PREFERRED AN APPEAL BEFORE THE CIT(APPEALS). THE C IT(APPEALS) FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSESSEES HUSBAND IN ITA NO. 1581/MDS/2010 RELEVANT TO THE AY . 2007-08 TITLED AS DCIT VS. SHRI P. ASHOK KUMAR DECIDED ON 20-01-2011, HELD THE LAND TO BE AGRICULTURAL. BEFORE THE CIT(A PPEALS), THE ASSESSEE HAD INTER ALIA IMPUGNED THE ASSESSMENT ORD ER FOR TREATING THE AGRICULTURAL INCOME AS INCOME FROM UN- EXPLAINED SOURCES. THE CIT(APPEALS) REJECTED THIS GROUND OF APPEAL OF THE ASSESSEE. NOW, AGGRIEVED AGAINST THE ORDER OF THE CIT(APPEALS), REVENUE HAS COME IN APPEAL BEFORE US. 4. SHRI ANIRUDH RAI, CIT-DR, REPRESENTING THE DEPAR TMENT VEHEMENTLY OPPOSED THE ORDER OF THE CIT(APPEALS). THE LD. DR SUBMITTED THAT THE ASSESSEE HAD PURCHASED 2.14 ACRE S OF LAND IN I.T.A. NO. 633/MDS/2012 :- 4 -: 1994 FOR ` 8,10,000/- AND SOLD THE LAND IN JANUARY 2007 FOR ` 12.42 CRORES. THE ASSESSEE HAD FILED RETURN OF INC OME WITHOUT DISCLOSING THE SALE OF LAND. IN THE SALE DEED, THE ASSESSEE HAD CATEGORICALLY STATED THAT LAND IS NOT BEING USED F OR PRODUCTIVE PURPOSES. THE LD. DR FURTHER SUBMITTED THAT THE DO CUMENTS PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFIC ER TO SUBSTANTIATE HER CLAIM THAT THE LAND IN QUESTION IS AGRICULTURAL LAND WERE EITHER MORE THAN TEN YEARS OLD OR WERE CREATED TO CLAIM EXEMPTION. THE LD. DR CONTENDED THAT THE EXTRACTS OF ADANGAL RELATING TO FASLI YEAR 1405 SHOWING THAT URAD WAS G ROWN IN THE LAND WERE MORE THAN TEN YEARS OLD. KIST PAYMENT RE CEIPTS FOR THE FASLI YEAR 1414, 1415 & 1416 WERE DATED 13-01-2007 JUST BEFORE THE SALE OF LAND. THUS, NONE OF THE DOCUMENTS FILE D BY THE ASSESSEE RELATE TO THE YEAR OF TRANSACTION OR A YEA R IMMEDIATELY PRECEDING THE DATE OF TRANSACTION. THE LD. DR POIN TED OUT THAT THE TAHSILDAR OF THE AREA, WHERE THE LAND IN QUESTION I S SITUATED AFTER EXAMINING THE REVENUE RECORDS HAS CERTIFIED THAT TH E LAND OF THE ASSESSEE WAS LYING VACANT DURING THE FOUR PRECEDING YEARS. THE LD. DR FURTHER CONTENDED THAT THE ASSESSEE HAD FILE D RETURN OF WEALTH FOR THE SAME AY WHEREIN THE DETAILS OF NON-B USINESS I.T.A. NO. 633/MDS/2012 :- 5 -: ASSETS OWNED BY HER WERE MENTIONED. IN THE LIST OF A NON- BUSINESS ASSETS WHICH IS RE-PRODUCED IN PARA 13.8 O F THE ASSESSMENT ORDER, THE ASSESSEE HAS NOT MENTIONED AB OUT THE LAND IN QUESTION. THUS, IT IS EVIDENT THAT THE ASS ESSEE HAS HERSELF ADMITTED THAT THE NATURE OF LAND IS NON-AGRICULTURA L. THE LD. DR SUBMITTED THAT THE NATURE OF LAND CANNOT SOLELY BE BASED ON THE ENTRIES MADE IN THE REVENUE RECORDS. NATURE OF LAN D KEEPS ON CHANGING DEPENDING UPON THE USAGE AND ITS UTILITY. IN SUPPORT OF HIS CONTENTIONS, THE LD. DR RELIED ON THE FOLLOWING DECISIONS: I. SARIFABIBI MOHMED IBRAHIM & OTHERS VS. CIT REPORTED AS 204 ITR 631 (SC) II. CIT VS. BENOY KUMAR SAHAS ROY REPORTED AS 32 ITR 466 (SC); III. CWT VS. OFFICER-IN-CHARGE (COURT OF WARDS) REPORTED AS 105 ITR 133 (SC); IV. FAZALBHOY INVESTMENT CO. PVT. LTD., VS. CIT (1989) REPORTED AS 176 ITR 523 (BOM); V. GOPAL C. SHARMA VS. CIT REPORTED AS 209 ITR 946 (BOM); VI. ITA NO. 2118/MDS/2012 ACIT VS. SUBRAMANIAM VADIVEL, DECIDED ON 20-02-2013; I.T.A. NO. 633/MDS/2012 :- 6 -: VII. ITA NO. 794/MDS/2011 M/S. PALLAVA RESORTS P. LTD., VS. DCIT DECIDED ON 11-10-2012; & VIII. ITA NO. 2164/MDS/2012 ACIT VS. SMT. SAKUNTHALA VEDACHALAM DECIDED ON 11-04-2013. 5. THE LD. DR SUBMITTED THAT THE CASE OF THE ASSESS EE IS DISTINGUISHABLE FROM THE CASE OF HER HUSBAND SHRI P . ASHOK KUMAR, WHEREIN THE TRIBUNAL HAS HELD THAT THE LAND OF THE ASSESSEE IS AGRICULTURAL IN NATURE. THE POINTS OF DISTINCTION WHICH WERE HIGHLIGHTED BY THE DR WERE AS UNDER: I) SHRI P. ASHOK KUMAR HAS SHOWN HIS AGRICULTURAL I NCOME IN HIS INCOME TAX RETURN WHERE AS ASSESSEE HAS NOT DIS CLOSED HER INCOME FROM AGRICULTURE IN ANY OF THE AYS EXCEP T IN THE AY. 2007-08 WHICH WAS NOT ACCEPTED BY THE ASSESSING OFFICER. THE CIT HAS CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER WHICH HAS NOT BEEN CHALLENGED BY THE ASSESSEE; II) THE HUSBAND OF THE ASSESSEE WAS GROWING COCONUT AND HE HAS PRODUCED EVIDENCE BEFORE THE ASSESSING OFFICER, WHEREAS THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE A NY I.T.A. NO. 633/MDS/2012 :- 7 -: DOCUMENT ON RECORD TO SHOW THAT AGRICULTURAL ACTIVI TIES WERE CARRIED ON BY HER ON THE LAND IN QUESTION. ON THE CONTRARY, THE TAHSILDAR OF THE AREA HAS CERTIFIED, THAT NO AG RICULTURAL ACTIVITY WAS CARRIED ON THE LAND FOR THE PAST FOUR YEARS; III) THE HUSBAND OF THE ASSESSEE HAS REGULARLY BEEN PAYING KIST, WHERE AS THE ASSESSEE HAD PAID KIST FOR THREE YEARS THAT IS FASLI YEAR 1414, 1415 AND 1416 ON 13-01-200 7 JUST PRIOR TO THE TRANSFER OF LAND TO CREATE EVIDENCE; IV) IN THE CASE OF THE HUSBAND, THE LAND WAS CULTIV ATED BY A LOCAL PERSON MR. MURUGAN, WHEREAS NO SUCH EVIDENCE WAS BROUGHT ON RECORD TO SHOW THAT THE LAND WAS IN CULT IVATION OF EITHER ASSESSEE OR ANY OTHER PERSON. 6. THE LD. DR SUBMITTED THAT THE FINDINGS OF CIT(AP PEALS) WERE PERVERSE. THE CIT(APPEALS) HAS NOT GONE INTO THE F ACTS OF THE CASE AND HAS ALLOWED THE APPEAL OF THE ASSESSEE ON THE ISSUE BY MERELY FOLLOWING THE DECISION OF THE TRIBUNAL IN TH E CASE OF ASSESSEES HUSBAND. THE LD. DR FURTHER SUBMITTED T HAT THE CIT(APPEALS) HAS ALSO OBSERVED THAT THE LAND IN QUE STION IS BEYOND 8 KMS FROM MUNICIPALITY. THE DISTANCE OF LA ND BEYOND 8 I.T.A. NO. 633/MDS/2012 :- 8 -: KMS FROM MUNICIPALITY CANNOT BE THE SOLE REASON FOR CATEGORIZING THE LAND AS AGRICULTURAL LAND. THE LD. DR SUBMITTE D THAT THE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIDDHARTH J. DESAI REPORTED AS 139 ITR 628 (GUJ) HAS GIVEN DETAILED GUIDELINES TO DETERMINE THE NATURE AND CHARACTER OF THE LAND. TH E LD. DR PRAYED FOR SETTING ASIDE THE IMPUGNED ORDER OF THE CIT(APPEALS). 7. ON THE OTHER HAND DR. ANITA SUMANTH, ADVOCATE REPRESENTING THE ASSESSEE SUPPORTED THE ORDER OF TH E CIT(APPEALS). THE LD. COUNSEL SUBMITTED THAT THE L AND OF THE ASSESSEE IN QUESTION WAS ADJACENT TO THE LAND OF TH E HUSBAND OF THE ASSESSEE. ALTHOUGH THEY WERE NOT CO-OWNERS OF THE LAND, BUT THEY HAD PURCHASED THE LAND FROM SAME PERSON FROM A CONTIGUOUS PARCEL OF LAND OWNED BY THE VENDOR. THE CASE OF TH E ASSESSEE IS IDENTICAL TO THAT OF THE HUSBAND. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE TRIBUNAL IN ITA NO. 1581 /MDS/2010 PASSED IN THE CASE OF HUSBAND OF THE ASSESSEE SHRI P. ASHOK KUMAR. THE LD. COUNSEL CONTENDED THAT IN THE GROUN DS OF APPEAL, THE REVENUE HAS NOWHERE STATED THAT CASE OF THE ASS ESSEE IS DISTINGUISHABLE FROM THE CASE OF SHRI P. ASHOK KUMAR , THE I.T.A. NO. 633/MDS/2012 :- 9 -: HUSBAND OF THE ASSESSEE. THE LD. AR REFERRED TO P AGE NOS. 5 & 6 OF THE ASSESSMENT ORDER TO SHOW THAT DOCUMENTARY EVIDENCE WAS FURNISHED BEFORE THE ASSESSING OFFICER TO SUBST ANTIATE THE CLAIM OF THE ASSESSEE THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND. IT WAS MENTIONED BEFORE THE ASSESSING OFFICE R THAT ALTHOUGH THERE WAS NO MAJOR AGRICULTURAL OPERATION IN THE LA ND BUT THE LAND WAS ALWAYS UNDER CULTIVATION AND THE RESIDUAL INCOM E IF ANY, WAS PASSED ON TO THE ASSESSEE AFTER MEETING THE EXPENDI TURE OF THE CARE TAKER. THE SAID INCOME HAS BEEN REFLECTED IN THE BOOK OF ACCOUNTS AND RETURNS FOR THE RESPECTIVE ASSESSMENT YEARS. THE COUNSEL FOR THE ASSESSEE MADE A STATEMENT AT THE BA R THAT THE CARE TAKER MR. MURUGAN WHO WAS EMPLOYED BY THE HUSB AND OF THE ASSESSEE WAS ALSO CARE TAKER OF THE AGRICULTURAL LA ND OF THE ASSESSEE AND IN THE INCOME-TAX RETURNS, THE ASSESSE E HAS BEEN DISCLOSING INCOME FROM AGRICULTURAL ACTIVITIES. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE DISTINCTIONS CREATED BY THE DR ARE MERELY FARCE. T HE CASE OF THE ASSESSEE IS IDENTICAL TO THE CASE OF SHRI P. ASHOK KUMAR , HUSBAND OF THE ASSESSEE. I.T.A. NO. 633/MDS/2012 :- 10 - : 8. WE HAVE HEARD THE SUBMISSIONS MADE BY THE RIVAL PARTIES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELO W AS WELL AS THE CASES REFERRED TO BY THE LD. DR. AS REGARDS THE SUBMISSIONS OF THE LD. DR WITH RESP ECT TO FACTORS DETERMINING THE NATURE AND CHARACTER OF LAN D, WE FULLY AGREE WITH THE SUBMISSIONS AND THE CASE LAWS CITED BY THE LD DR. WHETHER THE LAND IS AGRICULTURAL LAND OR NOT IS A Q UESTION OF FACT. IN THE INSTANT CASE, THE LD. COUNSEL FOR THE ASSESS EE HAS RELIED ON THE ORDER OF THE TRIBUNAL IN THE CASE OF SHRI P. ASHOK KUMAR , HUSBAND OF THE ASSESSEE DECIDED BY THE TRIBUNAL IN ITA NO. 1581/MDS/2010 FOR THE AY. 2007-08 DECIDED ON 20-01- 2011. THE LD. COUNSEL HAS STATED THAT THE FACTS IN THE CASE O F THE ASSESSEE ARE IDENTICAL TO THE FACTS OF THE CASE OF HER HUSBA ND. ON THE OTHER HAND, THE LD. DR HAS TRIED TO CREATE A DISTIN CTION BETWEEN THE CASE OF THE ASSESSEE AND HER HUSBAND. THE LD. DR HAS GIVEN FOUR POINTS OF DISTINCTION. THE FIRST TWO POINTS R ELATE TO AGRICULTURAL ACTIVITY BEING CARRIED OUT BY THE HUSBAND OF THE AS SESSEE AND MENTIONING THE SAME IN HIS RETURN OF INCOME. THE L D. COUNSEL FOR THE ASSESSEE HAS MADE STATEMENT AT THE BAR THAT THE ASSESSEE HAS BEEN CARRYING OUT AGRICULTURAL ACTIVITIES THROU GHOUT THE PERIOD I.T.A. NO. 633/MDS/2012 :- 11 - : AND IN HER RETURN OF INCOME, THE ASSESSEE HAS BEEN MENTIONING ABOUT THE AGRICULTURAL INCOME. THE NEXT POINT OF D ISTINCTION GIVEN BY THE LD. DR IS WITH REGARD TO PAYMENT OF KIST FOR THE FASLI YEAR 1414, 1415 AND 1416 ON 13-01-2007. WE ARE OF THE O PINION THAT THE DELAY IN PAYMENT OF KIST CANNOT BE A POINT OF D ISTINCTION FOR TAKING A DIFFERENT VIEW. THE FOURTH POINT OF DISTINCTION MADE BY THE LD. DR IS WITH REGARD TO CARE TAKER/CULTIVATOR OF THE LAND OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS POINTED THAT IN THE SU BMISSIONS MADE BEFORE THE ASSESSING OFFICER IT HAS BEEN CATEG ORICALLY STATED THAT WHATEVER INCOME FROM AGRICULTURAL OPERA TIONS WERE REMITTED TO THE ASSESSEE, WERE AFTER MEETING THE EX PENDITURE OF THE CARE TAKER. THE LD. COUNSEL HAS STATED THAT TH E CARE TAKER OF THE LAND OF THE ASSESSEE IS SAME, WHO WAS CULTIVATI NG THE LAND OF THE HUSBAND OF THE ASSESSEE. 9. WE FIND THAT ALL THE SUBMISSIONS MADE BY THE LD. DR HAVE ALREADY BEEN CONSIDERED BY THE TRIBUNAL IN THE CASE OF THE HUSBAND OF THE ASSESSEE. THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE IN THE CASE OF SHRI P. ASHOK KUMAR (SUPRA) WITH THE FOLLOWING OBSERVATIONS: I.T.A. NO. 633/MDS/2012 :- 12 - : 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE ENTIRE RECORDS. THE ASSESSEE HAD PURCH ASED 2.14 ACRES OF AGRICULTURAL LAND FROM ONE SHREE HARI KRISHNA BRICK WORKS, CHENNAI, VIDE SALE DEED DATED 27.9.199 4 FOR A TOTAL CONSIDERATION OF ` 8,10,000/-. THIS LAND WAS SUBSEQUENTLY SOLD TO A COMPANY BY THE NAME ESTRA IT PARK PVT. LT D, FOR A TOTAL CONSIDERATION OF ` 12,42,00,000/-, VIDE SALE DEED DATED 24.1.2007. IN THE SALE DEED, IT IS MENTIONED IN PA RA 3 THAT THE ASSESSEE IS COMPELLED TO SELL THE PROPERTY AS AT PR ESENT IT IS NOT FETCHING ANY INCOME. THE ISSUE INVOLVED BEFORE US IS AS TO WHETHER THE LAND SOLD IS AGRICULTURAL LAND OR IT IS TO BE TREATED AS A CAPITAL ASSET IN THE TERMS OF SECTION 2(14) OF THE ACT. IT IS TRUE THAT THE DEFINITION OF AGRICULTURAL LAND IS NO T GIVEN IN THE INCOME-TAX ACT, BUT VARIOUS FACTORS CONTRIBUTE TO A SCERTAIN THE CORRECT NATURE OF A PARTICULAR PIECE OF LAND. IF A LAND IS SITUATED WITHIN 8 KMS OF THE MUNICIPAL LIMITS OF A CITY EVEN IF IT IS RECORDED AS AGRICULTURAL LAND IN THE REVENUE RECORD S, IT IS TO BE TREATED AS NON-AGRICULTURAL LAND AND FOR THAT MATTE R AN ASSET BUT IN THIS CASE, THE ADMITTED FACT IS THAT THIS LA ND FALLS BEYOND 8 KMS FROM THE NOTIFIED LIMIT. IT IS TRUE THAT AS PER REVENUE RECORDS, THE LAND HAS BEEN RECORDED AS AGRICULTURAL LAND. IT IS FOUND TO BE A FACT THAT THE ASSESSEE HAS BEEN SHOWI NG AGRICULTURAL INCOME FROM THIS VERY LAND AND THE SAM E HAS BEEN ACCEPTED BY THE REVENUE AS SUCH YEAR AFTER YEAR. TH E LAND WAS PURCHASED BY THE ASSESSEE AND AT THAT TIME IT W AS LOW LYING AS SOME MUD WAS TAKEN FROM IT FOR MAKING BRIC KS ETC. BUT ADMITTEDLY AFTER PURCHASE, NO SUCH ACTIVITY WAS CARRIED OUT ON THIS LAND. EVEN IF WE ACCEPT THE CONTENTION OF THE REVENUE THAT NO AGRICULTURAL PRODUCTION WAS DONE BY THE ASS ESSEE ON I.T.A. NO. 633/MDS/2012 :- 13 - : THIS LAND, THIS MERE FACT WILL NOT TAKE OUT THE LAN D OUT OF THE NOMENCLATURE OF AGRICULTURAL LAND. THE ASSESSEE G ROWS COCONUT ON THIS LAND AND THE SAME ARE SOLD IN THE M ARKET AND THESE RECEIPTS ARE TREATED AS AGRICULTURAL RECEIPTS BY THE REVENUE. THE ASSESSEE HAS ALSO PAID AGRICULTURAL L AND TAX AND COPIES OF THE SAME WERE MADE AVAILABLE TO THE AUTHORITIES. THE LAND IN QUESTION IS SITUATED IN TH E REVENUE ESTATE OF A VILLAGE NAMED IYYAPPANTHANGAL PANCHAYAT WHICH IS SITUATED MORE THAN 8 KMS AWAY FROM THE LIMITS OF ALANDUR MUNICIPALITY. WE HAVE FOUND THAT THE LAND HAS BEEN AGRICULTURAL LAND FOR THE PAST MANY YEARS AND HAS B EEN CLASSIFIED AS SUCH IN THE RECORDS OF THE REVENUE DE PARTMENT. THE ASSESSEE HAS PAID KIST OF ` 400/- EACH IN RESPECT OF LAND ON 30.1.2007 REGARDING FASLI YEARS 1413, 1414, 1415 AND 1416. IT WAS BROUGHT ON RECORD THAT THIS LAND WAS B EING CULTIVATED BY ONE LOCAL PERSON, NAMELY SHRI MURUGAN , BUT FOR ASSESSMENT YEARS 2005-06 AND 2006-07, AGRICULTURAL OPERATIONS WERE CARRIED OUT BY HIM, HE COULD NOT GE T FOOD RETURNS AND THAT IS WHY HE DID NOT ADMIT ANY AGRICU LTURAL INCOME IN THE RETURNS FILED. THE REPORT OF THE TAH SILDAR REFERS TO NON-CULTIVATION OF THE LAND BECAUSE AN AGRICULTU RAL OPERATION IN A LARGE SCALE WAS NOT CARRIED OUT ON THIS LAND. HENCE, WE HOLD THAT THE LAND SOLD BY THE ASSESSEE IS ONLY AGR ICULTURAL LAND AND NOT A CAPITAL ASSET. THEREFORE, NO LONG T ERM CAPITAL GAIN IS ATTRACTED. CONSEQUENTLY, WE CONFIRM THE OR DER APPEALED AGAINST AND DISMISS THE APPEAL OF THE REVE NUE. I.T.A. NO. 633/MDS/2012 :- 14 - : THE LD. DR IN OUR CONSIDERED OPINION HAS NOT BEEN ABLE TO POINT OUT ANY GLARING DISTINCTIVE FACTOR IN THE CAS E, TO ENABLE US TO TAKE A DIFFERENT VIEW FROM THE VIEW ALREADY TAKEN B Y THE TRIBUNAL IN THE CASE OF SHRI P. ASHOK KUMAR (SUPRA). THE LAND IN QUESTION IS A PART OF CONTIGUOUS PARCEL OF LAND OWNED BY THE HUSBAND OF THE ASSESSEE. SINCE, THE FACTS OF THE CASE OF THE ASSE SSEE ARE IDENTICAL TO THE CASE OF SHRI P. ASHOK KUMAR , WE RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE SAID CASE DISMISS THE APPEAL OF THE REVENUE. ORDER PRONOUNCED ON MONDAY, THE 12 TH AUGUST, 2013, AT CHENNAI. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (VIKAS AWASTHY) JUDICIAL MEMBER DATED: 12 TH AUGUST, 2013 TNMM COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR