SHRI MAMCHAND GURJAR, Alwar V. ITO, Alwar

ITA 758/JPR/2011

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6180 (ITAT-JAIPUR)
• Duration Of Justice: 6 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 25-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Capital asset; Corroborative evidences
• Section: 2(14); 63

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 758/JP/2011 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 MAMCHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACWPC0978 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 833/JP/2014 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 SMT. SUKHDAI, W/O- LATE SHRI NARAYAN SINGH, C/O- SHRI MAM CHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, TEHSIL- TIJARA, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 834/JP/2014 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 SHRI MANPHOOL GURJAR, S/O- LATE SHRI NARAYAN SINGH, C/O- SHRI MAM CHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, TEHSIL- TIJARA, ALWAR. C UKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 2 VK;DJ VIHY LA-@ ITA NO. 835/JP/2014 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 SHRI HARI SINGH, S/O- LATE SHRI NARAYAN SINGH, C/O- SHRI MAM CHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, TEHSIL- TIJARA, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 836/JP/2014 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 SHRI SHYAM LAL, S/O- LATE SHRI NARAYAN SINGH, C/O- SHRI MAM CHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, TEHSIL- TIJARA, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIIPL 0704 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 837/JP/2014 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 SHRI JAGAT SINGH, S/O- LATE SHRI NARAYAN SINGH, C/O- SHRI MAM CHAND GURJAR, NEAR HOUSING BOARD, SECTOR-1, BHIWADI, TEHSIL- TIJARA, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BLGPS 4473 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/04/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 27/04/2018 ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 3 VKNS'K@ ORDER PER: BHAGCHAND, A.M. ITA NO. 758/JP/2011 FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A), ALWAR DATED 20/06/2011 FOR THE A.Y . 2008-09 AND ITA NOS. 833 TO 837/JP/2014 FILED BY THE DIFFERENT ASSE SSEES EMANATES FROM THE ORDER OF THE LD. CIT(A), ALWAR DATED 25/09/2014 P ERTAINING TO THE A.Y. 2008-09. 2. IN ALL THESE APPEALS, A COMMON ISSUE IS INVOLVED , THEREFORE, ALL THE APPEALS WERE HEARD TOGETHER AND FOR THE SAKE OF CONV ENIENCE AND BREVITY, A COMMON ORDER IS BEING PASSED. 3. THE COMMON ISSUE INVOLVED IN THESE APPEALS IS SUS TAINING THE ADDITION OF CAPITAL GAIN CONSIDERING THE LAND SOLD BY THESE ASSESSEES AS CAPITAL ASSET AND NOT AS AN AGRICULTURAL LAND, WHI CH DOES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET AS PER THE INCOME TAX ACT. THE LAND SOLD WAS 14.08 BIGHAS (3.52 HECTARE) AT KHASARA NO. 22/12 20 AND 22/1221 AT VILLAGE JALALPUR, TEHSIL- TIJARA, DISTRICT- ALWAR (RA J) HELD BY ALL THESE CO- OWNERS IN 1/6 TH SHARE EACH. 3.1 THE FACTS OF ITA NO. 758/JP/2011 IS THAT THE ASS ESSEE SHRI MAMCHAND GURJAR IS AN AGRICULTURIST AND ALSO DERIVE S INCOME FROM RENT AND INTEREST. THE RETURN OF INCOME FOR THE A.Y. 2008 -09 WAS FILED ON ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 4 26/3/2009 DECLARING TOTAL INCOME OF RS. 2,47,540/- AND AGRICULTURAL INCOME OF RS. 1,22,750/-. THE ASSESSING OFFICER FINA LIZED THE ASSESSMENT AT A TOTAL INCOME OF RS. 31,07,195/- WHEREIN AN ADDI TION OF RS. 24,99,286/- WAS MADE ON ACCOUNT OF CAPITAL GAIN ON T HE SALE OF THE LAND. THIS ACTION OF THE ASSESSING OFFICER WAS CONFIRMED BY THE LD. CIT(A). NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. THE GROUN DS OF APPEAL READ AS UNDER: GROUNDS OF ITA NO. 758/JP/2011 1. THAT THE LD. CIT(A), ALWAR ERRED IN LAW AS WELL AS ON THE FACTS WHILE CONFIRMING THE ADDITION OF RS. 2499286/ - BY CONSIDERING AGRICULTURE LAND AS RESIDENTIAL PROPERT Y. AS LAND UNDER CONSIDERATION MEASURING 14.08 BIGHA IS REGULA RLY USED FOR AGRICULTURE PURPOSE AND ALSO SITUATED MORE THAN 8 K.M. DISTANCE FROM MUNICIPAL AREA OF TIJARA AND SAM E DOES NOT FALL UNDER THE DEFINITION OF CAPITAL ASSET, DEF INE IN SECTION 2(14) OF IT ACT. 2. THE ASSESSEE CRAVES LEAVE TO ADD/ALTER ANY OF TH E GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. NECESSARY COST BE AWARDED TO THE ASSESSEE. 4. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED THAT THE FACTS OF THE ISSUE ARE THAT THE ASSESSEE A LONGWITH OTHER FAMILY MEMBERS JOINTLY PURCHASED LAND IN THE YEAR 1993-94 AND THE SAME WERE SOLD DURING THE YEAR UNDER CONSIDERATION. AS PER TH E CONTENTION OF THE ASSESSEE, THIS LAND WAS EARLIER HELD BY A PERSON BEL ONGING TO THE SCHEDULED CASTE COMMUNITY AS AGRICULTURAL LAND. AS PER THE LAWS OF STATE ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 5 GOVERNMENT, AGRICULTURAL LAND IN THE NAME OF SCHEDU LED CASTE PERSON CANNOT BE TRANSFERRED TO ANY NON SCHEDULED CASTE PE RSON. TO AVOID THIS, THE SELLER CONVERTED THE LAND INTO THE RESIDENTIAL. AFTER CONVERSION, THIS LAND BECOMES SALABLE TO ASSESSEE. THE ONLY PURPOSE O F CONVERSION BY PREVIOUS OWNER WAS TO MAKE IT SALABLE IN OPEN MARKET AND TO OVERCOME THE LEGAL HURDLE OF STATE LAWS. HOWEVER, FOR ALL PRAC TICAL PURPOSES, THE LAND CONTINUED TO BE USED FOR AGRICULTURAL PURPOSES . THE FACTS ON RECORD SHOWS THAT THE AGRICULTURAL ACTIVITIES WERE BEING CAR RIED OUT ON THIS LAND BY THE PREVIOUS OWNER AND BY THESE ASSESSEES ALSO. A LL THE CO-OWNERS OF THE LAND WERE AGRICULTURISTS AND THEY HAVE DECLARED AGRICULTURAL INCOME IN THEIR RESPECTIVE RETURNS OF INCOMES. PRIOR TO THE P URCHASE OF THE LAND, THE AGRICULTURE ACTIVITIES WERE BEING CARRIED OUT ON THI S LAND AND EVEN AFTER THE PURCHASE OF THE LAND, THE LAND CONTINUED TO BE USED FOR AGRICULTURE PURPOSES BY CO-OWNERS. IN SUPPORT OF THIS, COPY OF K HASRA GIRDAWARI FOR RELEVANT PERIOD HAS BEEN PLACED ON RECORD. THE AGRIC ULTURAL INCOME WAS BEING CONTINUOUSLY DISCLOSED IN THE RETURN OF INCOM E. THE LAND IS SURROUNDED BY AGRICULTURAL LAND ONLY. THIS LAND IS L OCATED BEYOND 8 K.MS. FROM THE MUNICIPAL LIMITS OF SMALL TOWN TIJARA IN AL WAR DISTRICT. IN THIS REGARD, A CERTIFICATE FROM THE PANCHAYAT WAS PLACED ON THE RECORD. THERE WAS NO SCOPE FOR URBANIZATION ON THIS LAND. THE SIZE OF LAND ALSO SHOWS THAT THIS COULD NOT BE USED FOR RESIDENCE BY THESE PERSONS ALSO. IT IS ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 6 SUBMITTED THAT THE LAND IN QUESTION WAS PURCHASED BY THE ASSESSEE FROM A SCHEDULED CASTE PERSON AND THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) HAS GIVEN MORE EMPHASIS ON THE FORM RATHER TH AN THE SUBSTANCE. THE LAND DISCLOSED IN THE REGISTRY HAS BEEN CLASSIFI ED AS BARANI DOYAM, WHICH IS CAPABLE IN GROWING CROPS. EVEN THE PERSON TO WHOM THE LAND WAS SOLD WERE CONTINUING AGRICULTURE OPERATIONS ON THIS LAND. THEY CONTINUED TO DO AGRICULTURAL OPERATION AFTER THE PURCHASE OF THIS LAND. FURTHER THE LD. AR OF THE ASSESSEE HAS SUBMITTED AS UNDER: IN THE ASSESSMENT ORDER ON PAGE 5 AND 6 THE LEARNED ASSESSING OFFICER HAS OBSERVED THAT THE LAND PURCHASED WAS RESIDENTIAL PR OPERTY. THE ASSESSEE CONSTRUCTED ROOM OF THE SIZE OF 10X15 FEET AND BARA MDA OF 15 X 8 FEET FOR THE USE OF CATTLE. BOUNDARY WALL WAS ALSO CONSTRUCTED A ND ONE HAND PUMP WAS ALSO INSTALLED. THE LEARNED ASSESSING OFFICER HAS ALSO A DMITTED THAT THE LAND PURCHASED WAS RESIDENTIAL PROPERTY IN DOCUMENTS BUT 'SOME PART OF LAND WAS USED FOR CULTIVATION', (ON PAGE 6 OF THE ASSESSMENT ORDER). THE LEARNED CI T(A) HAS ALSO ADMITTED THAT 'THE KHASRA GIRDAWARI SHOWS THAT THE ASSESSEE USED THIS RESIDENTIAL LAND IN CULTIVATING THE AGRICULTURE.'(P AGE 12 OF THE ASSESSMENT ORDER). HOWEVER BOTH THE AUTHORITIES STILL DECLINE TO ACCEPT THAT SINCE THE LAND WAS USED OF AGRICULTURAL PURPOSES THEREFORE THE SAM E CONTINUED TO BE AGRICULTURAL LAND DESPITE BEING SHOWN AS CONVERTED IN THE RECORDS. THE SUBMISSION OF THE ASSESSEE IS THAT WHEN THE LAND IS USED FOR AGRICULTURAL WHICH IS BORNE OUT FROM THE FACT THAT ASSESSEE ALSO INSTALLE D A HAND PUMP FOR CARRYING OUT AGRICULTURAL ACTIVITY. THE CONSTRUCTION OF ONE ROOM OF THE SIZE OF 10 X 15 FEET AND CONSTRUCTION OF ONE BARAMDA OF THE SIZE OF 15 X 8 C ANNOT CONVERT LAND OF THE SIZE OF 6957 SQ. METERS FROM AGRICULTURAL TO RESIDENTIAL . IT IS COMMON KNOWLEDGE THAT LAW PERMITS SOME CONSTRUCTION UPTO 5% OF LAND ON AG RICULTURAL LAND ALSO. ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 7 THEREFORE THE MERE CONSTRUCTION OF A SMALL ROOM AND BARAMDA CANNOT BE SAID TO ALTER THE USE AND CHARACTER OF THE LAND. THE LEARNE D ASSESSING OFFICER AND THE LEARNED CIT(A) HAVE FAILED TO CONTROVERT THE SUBMIS SION OF THE ASSESSEE THAT DURING THE ENTIRE PERIOD OF HOLDING FROM 1993-94 TO 2007-08 WAS CONTINUOUSLY USED FOR AGRICULTURAL PURPOSES. SUPPORTING EVIDENCE WAS FILED IN THE SHAPE OF KHASRA GIRDAWARI. THE ASSESSEE ALSO DISCLOSED AGRIC ULTURAL INCOME IN THE INCOME TAX RETURNS. WHAT MORE EVIDENCE IS REQUIRED TO ESTA BLISH THAT THE LAND WAS OF THE NATURE OF AGRICULTURAL LAND. THE ASSESSEE HAS DISCL OSED AGRICULTURAL INCOME IN VARIOUS ASSESSMENT YEARS AS UNDER AS QUOTED BY THE LEARNED CIT(A) ON PAGE NO. 8 OF HIS ORDER ASSESSMENT YEAR AGRICULTURAL INCOME DECLARED BY THE ASSESSEE REMARKS 2003 - 04 112750 ACCEPTED BY THE REVENUE 2004 - 05 168500 ACCEPTED BY THE REVENUE 2005 - 06 147750 ACCEPTED BY THE REVENUE 2006 - 07 168960 ACCEPTED BY THE R EVENUE 2007 - 08 163850 ACCEPTED BY THE REVENUE INTENTION OF THE ASSESSEE WHILE REJECTING THE CLAIM OF THE ASSESSEE THE LEARN ED CIT(A) HAS OBSERVED AS UNDER IN PARA 5.3 OF HIS ORDER 'I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER A S WELL AS SUBMISSION OF THE ASSESSEE AND CASE RELIED UPON, ORIGINALLY THIS WAS OWNED BY 'SCHEDULED CASTE'. AS PER THE LAND REVENUE ACT ANY AGRICULTURAL LAND BELO NGING TO SCHEDULED CASTE CANNOT BE SOLD TO THE OTHER THAN SCHEDULED CASTE. T HE ASSESSEE DEVISED A METHOD TO TRANSFER THIS LAND IN HIS OWN NAME BY CON VERTING AGRICULTURAL IN RESIDENTIAL PROPERTY TO VIOLATE THE LAND LAWS OF RA JASTHAN GOVT. THE INTENTION OF THE ASSESSEE WAS CLEAR TO EARN THE BOUNTY OF PROFIT BY SELLING THIS LAND IN HIS NAME BUT HE ALSO WANTED TO AVOID TO PAY THE TAX ON LONG TERM CAPITAL GAIN. THUS HE ALSO CREATED THE EVIDENCE TO GIVE THE COLOU R OF AGRICULTURAL LAND AND AGRICULTURAL INCOME SHOWN IN THE I.T. RETURN.' ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 8 THE PERUSAL OF THE AFORESAID PARA DISCLOSES THE MIN DSET OF THE LEARNED CIT(A) IN DECIDING THE ISSUE. ON THE ONE HAND HE HAS ACCEPTED THE FACT THAT THE LAND IN QUESTION PURCHASED BY THE ASSESSEE WAS ESSENTIALLY AND BASICALLY OF AGRICULTURAL NATURE. IT WAS ONLY BECAUSE THE SELLER WAS A SCHEDU LE CASTE PERSON THAT THE LAND WAS PURCHASED AFTER GETTING IT CONVERTED. THE PURPOSE OF CONVERSION WAS NOT THAT THE LAND WAS GOING TO BE USED FOR PURPOSES OTH ER THAN AGRICULTURE. IN FACT THE LIMITED PURPOSE OF CONVERSION WAS TO GET THE LA ND TRANSFERRED FROM THE OWNER WHO WAS A SCHEDULE CASTE PERSON. BEYOND THAT THE PURPOSE OF CONVERSION WAS NOTHING. THIS FACT HAS NOT BEEN PROPERLY APPRECIATED BY THE LEARNED CIT(A) EVEN THOUGH HE HAS ACKNOWLEDGED THE FACTS IN HIS OR DER. TO THIS EXTENT THE ORDER OF THE LEARNED CIT(A) IS ERRONEOUS AND DESERV ES TO BE QUASHED. THE LEARNED CIT(A) HAS RAISED THE ISSUE OF THE INTE NTION OF THE ASSESSEE WHICH IS UNFORTUNATE AND UNCALLED FOR. THE LEARNED CIT(A) HA S HELD THAT THE ASSESSEE PURCHASED THE LAND WITH A MOTO OF EARNING PROFITS A ND HE HAS SHOWN AGRICULTURAL INCOME IN THE INCOME TAX RETURNS JUST TO ESTABLISH THAT THE LAND WAS AGRICULTURAL. IT IS NOT CLEAR FROM THE ORDER OF THE LEARNED CIT(A ) AS TO WHAT MADE HIM TO OBSERVE LIKE THIS. THE LAND WAS PURCHASED BY THE AS SESSEE IN THE YEAR 1993-94. IT IS COMMON KNOWLEDGE THAT THE PRICES OF LAND AND IMM OVABLE PROPERTY STARTED RISING IN THE YEAR 2004 AND THESE WERE AT THEIR PEA K IN THE YEAR 2007. IT IS BECAUSE OF THE ABNORMAL RISE IN THE LAND PRICE THAT THE ASSESSEE TOOK THE DECISION TO SALE THE LAND AND THE LAW DOES NOT PROH IBIT THE ASSESSEE FROM DOING THIS. IT WRONG ON THE PART OF THE LEARNED CIT(A) TO SAY THAT AGRICULTURAL INCOME WAS DISCLOSED TO GIVE THE LAND COLOR OF AGRICULTURA L LAND. THE REVENUE HAS ACCEPTED THE AGRICULTURAL INCOME. SO IT DOES NOT BE HOVE THE LEARNED CIT(A) TO OBSERVE LIKE THIS. THE ASSESSEE COULD NOT PLAN IN 1 993-94 WHILE PURCHASING THE LAND THAT THE LAND PRICES WOULD SOAR IN THE YEAR 20 07. SUCH THINGS CANNOT BE PLANNED AND THEY GO ON THEIR WAY. THE ASSESSEE JUST AVAILED THE OPPORTUNITY OF SELLING THE LAND AT HIGHER PRICE. THERE IS NO MANIP ULATION ON THE PART OF THE ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 9 ASSESSEE. THE LEARNED CIT(A) ERRED IN TAKING A DECI SION ON WRONG ASSUMPTIONS. HENCE THE DECISION OF THE LEARNED CIT(A) DESERVES T O BE QUASHED. 5. IMPORTANCE OF REVENUE RECORDS IT IS SUBMITTED THAT IN THE CASE OF THE ASSESSEE HI S CLAIM HAS BEEN REJECTED SOLELY ON ONE GROUND THAT THE LAND WAS NOT AGRICULTURAL IN THE RECORDS. IT IS SUBMITTED THAT IT IS SETTLED POSITION OF LAW THAT REVENUE REC ORDS ARE NOT CONCLUSIVE. IN SEVERAL CASE WHERE THE LAND WAS SHOWN AS AGRICULTUR AL LAND IN REVENUE RECORDS DESPITE THAT THE SAME WAS NOT ACCEPTED AS THE LAND WAS NOT PUT TO AGRICULTURAL USE. IN THE CASE OF THE ASSESSEE THE REVERSE IS TRU E. THE LAND IS BEING USED FOR AGRICULTURAL PURPOSES BUT IS NOT SHOWN AS AGRICULTU RAL IN THE REVENUE RECORDS. IN THE CIRCUMSTANCES IT IS PLEADED THAT WHAT IS IMPORT ANT IS THE USE OF THE LAND AND NOT THE RECORD OF IT. IN THE MATTER OF CWT V/S OFFI CERS IN CHARGE, (COURT OF WARDS) (1976) 105 ITR 133(SC) HON'BLE SUPREME COURT HELD T HAT THE ENTRIES IN THE REVENUE RECORDS IS A MATERIAL EVIDENCE TO SHOW THE NATURE OF THE LAND BUT IT IS NOT CONCLUSIVE. FURTHER EVIDENCE IS REQUIRED TO SHO W THE LANDS IN QUESTION AT THE MATERIAL TIME HAVE NOT LOST THE CHARACTER OF AGRICU LTURE LAND. THE ONUS IS ON THE ASSESSEE TO ESTABLISH THE NATURE OF THE LAND. WHEN ONCE THE ASSESSEE DISCHARGES THE ONUS, THE ONUS SHIFTS TO THE DEPARTMENT TO PROV E THE LAND IS NOT AGRICULTURAL. FURTHER IN THE MATTER OF SRI KRISHNA RAOL. BALEKAI V/S. WTO 48 ITR 472(MYS) IT WAS HELD THAT PRESENT CHARACTERISTICS AND NOT POTEN TIALITIES OF A LAND ARE THE PROPER CRITERION. IF A LAND IS ORDINARILY USED FOR THE PURPOSES OF AGRICULTURAL AND ALLIED TO AGRICULTURE, IT WOULD BE AGRICULTURAL LAN D. 6. PARAMETER LAID DOWN BY THE DECISION OF THE COURTS IN THE CASE OF SARIFABIBI MOHMED IBRAHIM & ORS VS. CIT 204 ITR 6321 THE HON'BLE SUPREME COURT HAS DISCUSSED THE ISSUE AT LENGTH. TH E COURT HAS QUOTED THE 13 FACTORS EVOLVED BY THE GUJARAT HIGH COURT IN THE CA SE OF CIT VS. S.J. DESAI FOR DECIDING THE ISSUE OF LAND BEING AGRICULTURAL. IT I S SUBMITTED THAT THE ASESSEE'S CASE COMPLIES WITH ALL THE PARAMETERS EXCEPT ONE TH AT THE SAME WAS NOT AGRICULTURAL IN REVENUE RECORDS. THESE ARE DISCUSSE D BELOW ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 10 SR. NO. PARTICULAR OF PARAMETERS REMARKS 1. WHETHER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL AND WHETHER IT WAS SUBJECT TO THE PAYMENT OF LAND REVENUE. ALTHOUGH THE LAND WAS SUBJECT TO THE PAYMENT OF LAND REVENUE BUT IN THE REVENUE RECORDS IT WAS SHOWN AS NON- AGRICULTURAL. THE KHASRA GIRDAWARI FURNISHED DISCLOSED THAT THE LAND WAS USED FOR THE AGRICULTURAL PURPOSES. 2. WHETHER THE LAND WAS ACTUALLY OR ORDINARILY USED FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEVANT TIME SINCE THE DATE OF PURCHASE TO THE DATE OF SALE THE LAND WAS PUT THE AGRICULTURAL USE ONLY. 3. WHETHER SUCH USER OF THE LAND WAS FOR A LONG PERIOD OR WHETHER IT WAS OF A TEMPORARY CHARACTER OR BY WAY OF A STOP -GAP ARRANGEMENT SINCE THE DATE OF PURCHASE TO THE DATE OF SALE THE LAND WAS PUT THE AGRICULTURAL USE ONLY. 4. WHETHER THE INCOME DERIVED FROM THE AGRICULTURAL OPERATIONS CARRIED ON IN THE LAND BORE ANY RATIONAL PROPORTION TO THE INVESTMENT MADE IN PURCHASING THE LAND YES THE AGRICULTURAL INCOME DISCLOSED IN THE INCOME TAX RETURN BY THE ASSESSEE WAS ACCEPTED BY THE REVENUE. 5. WHETHER THE PERMISSION UNDER S. 65 OF THE BOMBAY LAND REVENUE CODE WAS OBTAINED FOR THE NO N- 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 LA ND? IF THE PERMISSION WAS IN RESPECT OF A PORTION OF THE LAND AND IF IT WAS OBTAINED IN THE PAST, WHAT WAS THE NATURE OF THE USER OF THE SAID PORTION OF THE LAND ON THE MATERIAL DATE. NO PERMISSION WAS SOUGHT FOR URBANIZATION OF THE LAND. 6. WHETHER THE L AND, ON THE RELEVANT DATE, HAD CEASED TO BE PUT TO NO. THE LAND CONTINUED TO BE USED FOR AGRICULTURAL PURPOSES ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 11 AGRICULTURAL USE? IF SO, WHETHER IT WAS PUT TO AN ALTERNATIVE USE? WHETHER SUCH CESSER AND/OR ALTERNATIVE USER WAS OF A PERMANENT OR TEMPORARY NATURE. EVEN AFTER THE SALE. 7. WHETHER THE LAND, THOUGH ENTERED IN REVENUE RECORDS, HAD NEVER BEEN ACTUALLY USED FOR AGRICULTURE, THAT IS, IT HAD NEVER BEEN PLOUGHED OR TILLED? WHETHER THE OWNER MEANT OR INTENDED TO USE IT FOR AGRICULTURAL PURPOSES. THE REVERSE IS TRUE. IN THE REVENUE RECORDS THE LAND IS SHOWN AS NON AGRICULTURAL BUT WAS USED FOR AGRICULTURAL PURPOSES THROUGHOUT THE POSSESSION OF THE ASSESSEE. 8. WHETHER THE LAND WAS SITUATE IN A DEVELOPED AREA? WHETHER ITS PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF THE LANDS IN THE ADJOINING AREA WERE SUCH AS WOULD INDICATE THAT THE LAND WAS AGRICULTURAL. NO. THE LAND IS SURROUNDED BY THE AGRICULTURAL LANDS. 9. WHETHER THE LAND ITSELF WAS DEVELOPED BY PLOTTING AND PROVIDING ROADS AND OTHER FACILITIES. LAND WAS NEVER DEVELOPED. ONLY A SMALL ROOM AND BARAMDA WAS CONSTRUCTED FOR PURPOSES OF CATTLE FEEDING ETC. 10. WHETHER THERE WERE ANY PREVIOUS SALES OF PORTIONS OF THE LAND FOR NON- AGRICULTURAL USE. NO PIECE OF LAND WAS SOLD EARLIER. 11. WHETHER PERMISSION UNDER S. 63 OF THE BOMBAY TENANCY & AGRICULTURAL LANDS ACT, 1948, WAS OBTAINED BECAUSE THE SALE OR INTENDED SALE WAS IN FAVOUR OF A NON -AGRICULTURIST WAS FOR NON AGRICULTURAL OR AGRICULTURAL USER NO. THE LAND HAS BEEN SOLD TO AN AGRICULTURIST ONLY FOR PURPOSES OF AGRICULTURE. 12. WHETHER THE LAND WAS SOLD ON YARDAGE OR ON ACREAGE BASIS NO. 13. WHETHER AN AGRICULTURIST WOULD PURCHASE THE LAND FOR AGRICULTURAL PURPOSES AT THE THE LAND HAS BEEN PURCHASED BY AN AGRICULTURIST. ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 12 PRICE AT WHICH THE LAND WAS SOLD AND WHETHER THE OWNER WOULD HAVE EVER SOLD THE LAND VALUING IT AS A PROPERTY THUS IT WOULD BE SEEN THAT THE CASE OF THE ASSESSEE MEETS ALL THE PARAMETERS EXCEPT ONLY ONE, THAT TOO TECHNICALLY ONLY. IT IS A GAIN REITERATED THAT IN THE REVENUE RECORDS THE LAND WAS SHOWN AGRICULTURAL ONL Y FOR PURPOSES OF TRANSFER IN THE NAME OF THE ASSESSEE FROM THE PREVIOUS OWNER WH O HAPPENED TO BE SCHEDULED CASTE PERSON. THE LAND COULD NOT BE TRANS FERRED TO HIM UNLESS CONVERTED TO NON-AGRICULTURAL. IN VIEW OF THIS THE CASE OF THE ASSESSEE DESERVES TO BE CONSIDERED SYMPATHETICALLY. THE LEARNED ASSES SING OFFICER AND THE LEARNED CIT(A) FAILED TO CONSIDER THE FACTS OF THE CASE IN THE RIGHT PERSPECTIVE. IN THE CIRCUMSTANCES OF THE CASE NO CAPITAL GAINS ARE ATTR ACTED. THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER AND SO CONFIRMED BY T HE LEARNED CIT(A) DESERVES TO BE DELETED. 7. MERE TECHNICALITY OF THE CASE THE IMPORTANT ISSUE INVOLVED IN THE CASE IS THAT DE SPITE THE REVENUE RECORDS SHOWING THE LAND AS CONVERTED, THE LAND CONTINUED T O BE USED FOR AGRICULTURAL PURPOSES. THE LEARNED ASSESSING OFFICER HAS NOT DIS PUTED THIS FACT. THE ASSESSEE HAS ESTABLISHED THE SAME WITH REFERENCE TO KHASRA G IRDAWARI. THE LAND WAS SHOWN AS CONVERTED IN THE REVENUE RECORDS BECAUSE T HE SAME COULD BE TRANSFERRED OTHERWISE IN THE NAME OF THE ASSESSEE. BUT FOR THE REVENUE RECORDS THE LAND HAS CONTINUOUSLY REMAINED AGRICULTURAL, WA S USED ONLY FOR AGRICULTURAL PURPOSES AND THEREFORE THE ISSUE OF CAPITAL GAINS D OES NOT ARISE. THE LAND WAS NON-AGRICULTURAL ONLY TECHNICALLY AND NOT PRACTICAL LY. THE ASSESSEE HUMBLY REQUESTS THE HON'BLE ITAT TO DECIDE THE ISSUE PRACT ICALLY AND NOT TECHNICALLY. 5. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE O RDERS OF THE AUTHORITIES BELOW. SHE SUBMITTED THAT ONCE THE LAND HAS BEEN CLASSIFIED AS ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 13 RESIDENTIAL THEN THERE IS NO SCOPE FOR TREATING THE LAND AS AGRICULTURAL LAND FOR THE PURPOSE OF TAXATION. SHE FURTHER SUBMITTED THAT THE CASE LAWS RELIED UPON BY THE LD AR WERE IN RESPECT OF THE CASE S WHERE AGRICULTURAL LAND WAS TREATED AS NON-AGRICULTURAL BY CONSIDERING THE VARIOUS FACTS ON THE RECORD. THE GUIDELINE OF HONBLE GUJARAT HIGH CO URT IN THE CASE OF CIT VS. S.J. DESAI TO DECIDE THE ISSUE OF LAND BEING AG RICULTURAL IS ALSO FOR THE PURPOSE THAT THE LAND WHICH IS AGRICULTURAL IN THE N ATURE BUT THE VARIOUS OTHER ASPECTS MAKE IT TO BE TREATED AS NON-AGRICULT URAL FOR THE PURPOSE OF TAXATION. THEREFORE, THE RATIO LAID DOWN IS NOT APPLI CABLE IN THE ASSESSEES CASE. SHE PLEADED TO SUSTAIN THE ORDER OF LD. CIT(A) . 6. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . THE FOLLOWING FACTS ARE UNDISPUTED ON RECORD. THE LAND WHICH WAS PU RCHASED BY THESE CO-OWNERS IN THE YEAR 1993-94 FROM SHRI MALKHAN SING H S/O- SHRI SAWALIYA, WHO WAS BELONGING TO SCHEDULED CASTE CATEGOR Y. AGRICULTURAL LAND BELONGING TO SCHEDULED CASTE CATEGORY CANNOT B E TRANSFERRED TO ANY OTHER PERSON EXCEPT TO A PERSON OF SCHEDULED CASTE CATEGORY AS PER THE RULES AND REGULATIONS OF THE STATE GOVERNMENT. THESE ASSESSEES WERE NOT OF S.C. CATEGORY HENCE HAD THE LAND NOT CONVERT ED IT COULD NOT HAVE BEEN LEGALLY TRANSFERABLE TO THESE ASSESSEES. THE LA ND HAS BEEN CLASSIFIED IN THE PURCHASE REGISTRY AS BARANI DOYAM AND CONVER TED. THE FACTS OF AGRICULTURE ACTIVITIES CONTINUED TO THIS LAND HAD B EEN RECORDED IN LAND ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 14 REVENUE RECORDS. THE TOTAL AREA OF THE LAND WAS MORE THAN 14 BIGHAS (3.52 HECTARE). THE LOCATION OF THE LAND WAS BEYOND 8 KM FROM ANY MUNICIPAL LIMIT. THE SURROUNDING LAND WAS USED FOR AG RICULTURAL PURPOSES. THERE WAS NO SCOPE FOR URBANIZATION. THERE WAS NO SCOPE EVEN FOR EXTENSION OF ANY VILLAGE ABADI ON THIS LAND. SIZE O F LAND ITSELF NEGATES THE POSSIBILITY OF UTILIZING THIS WHOLE LAND FOR SELF R ESIDENTIAL PURPOSE BY THESE ASSESSES. THUS, IT IS WELL ESTABLISHED BY THE FACT O N RECORDS THAT THE PURPOSE OF LAND CONVERSION OF SHRI MALKHAN SINGH WAS ONLY WITH THE INTENTION TO SALE IT TO ANY PERSON RATHER THAN REST RICTED SALE OPTION TO THE SCHEDULED CASTE CATEGORY PERSON. THE INTENTION OF TH E SELLER SHRI MALKHAN SINGH WAS NOT TO CONVERT THE LAND TO RESIDENTIAL AND THEN USE THE SAME FOR THAT PURPOSE. THERE WAS NO SCOPE FOR URBANIZATION . AS PER THE RULES AND REGULATIONS APPLICABLE FOR CONVERSION, THE AGRI CULTURAL LAND CONVERTED TO RESIDENTIAL IF NOT UTILIZED FOR THE CONVERTED PU RPOSE WITHIN TWO YEARS THEN THE CONVERSION BECOMES NULL AND VOID. THE ASSES SEE WAS CONTINUOUSLY USED THE LAND FOR AGRICULTURAL PURPOSE S. A SMALL ROOM OF 10X15 AND A VARANDA OF 15X8 FOR THE PURPOSE OF CATTLE WAS CONSTRUCTED. THIS SMALL CATTLE SHED CONSTRUCTION ON SUCH A HUGE LAND DOES NOT SUGGEST THAT THE LAND WAS UTILIZED FOR RESIDENTI AL PURPOSES OR THERE WAS ANY INTENTION TO USE FOR THAT PURPOSE. KHASRA GI RDAWARI PLACED ON THE RECORD ESTABLISHES THAT THIS LAND CONTINUED TO BE U TILIZED AS AGRICULTURAL ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 15 LAND BY THESE ASSESSEES. THE ASSESSEES CONTINUED TO DECLARED AGRICULTURAL INCOME IN THEIR RETURN OF INCOME. THE HONBLE HIGH COURT OF MYSORE IN THE CASE OF SRI KRISHNA RAO L BALEKAI VS WTO 48 ITR 472 (MYS) HAS HELD THAT THE LAND IS ASSESSED TO THE LAND REVENUE AND AGRICU LTURAL LAND UNDER THE STATE REVENUE LAW WHICH CERTAINLY A RELEVANT FACT BU T IT IS NOT CONCLUSIVE TO DECIDE THE CHARACTER OF LAND. IN EACH CASE, ONE OR MORE FACTORS MAY BE PRESENT OR ABSENT TO MAKE ULTIMATE DECISION WHICH CA N BE REACHED ON A BALANCED CONSIDERATION OF THE TOTALITY OF CIRCUMSTA NCES. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. S.J. DESAI 139 ITR 0628 HAD EVOLVED 13 POINTS TO DECIDE THE CHARACTER OF LAND. THE FULFILLMENT OF THESE CRITERIAS HAS BEEN ELABORATED IN THE SUBMISSIONS OF THE LD AR, WHICH ARE REPRODUCED HEREUNDER: SR. NO. PARTICULAR OF PARAMETERS REMARKS 1. WHETHER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL AND WHETHER IT WAS SUBJECT TO THE PAYMENT OF LAND REVENUE. ALTHOUGH THE LAND WAS SUBJECT TO THE PAYMENT OF LAND REVENUE BUT IN THE REVENUE RECORDS IT WAS SHOWN AS NON- AGRICULTURAL. THE KHASRA GIRDAWARI FURNISHED DISCLOSED THAT THE LAND WAS USED FOR THE AGRICULTURAL PURPOSES. 2. WHETHER THE LAND WAS ACTUALLY OR ORDINARILY USED FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEV ANT TIME SINCE THE DATE OF PURCHASE TO THE DATE OF SALE THE LAND WAS PUT THE AGRICULTURAL USE ONLY. 3. WHETHER SUCH USER OF THE LAND WAS FOR A LONG PERIOD OR WHETHER IT WAS OF A TEMPORARY CHARACTER OR BY WAY OF A STOP -GAP ARRANGEMENT SINCE THE DATE OF PURCHASE TO THE DATE OF SALE THE LAND WAS PUT THE AGRICULTURAL USE ONLY. 4. WHETHER THE INCOME DERIVED FROM THE YES THE AGRICULTURAL INCOME ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 16 AGRICULTURAL OPERATIONS CARRIED ON IN THE LAND BORE ANY RATIONAL PROPORTION TO THE INVESTMENT MADE IN PURCHASING THE LAND DISCLOSED IN THE INCOME TAX RETURN BY THE ASSESSEE WAS ACCEPTED BY THE REVENUE. 5. WHETHER THE PERMISSION UNDER S. 65 OF THE BOMBAY LAND REVENUE CODE WAS OBTAINED FOR THE NON - AGRICULTURAL USE OF THE LAND? IF SO, WHEN AND BY WHOM (THE VENDOR OR THE VE NDEE). 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 LAND AND IF IT WAS OBTAINED IN THE PAST, WHAT WAS THE NATURE OF THE USER OF THE SAID PORTION OF THE LAND ON THE MATERI AL DATE. NO PERMISSION WAS SOUGHT FOR URBANIZATION OF THE LAND. 6. WHETHER THE LAND, ON THE RELEVANT DATE, HAD CEASED TO BE PUT TO AGRICULTURAL USE? IF SO, WHETHER IT WAS PUT TO AN ALTERNATIVE USE? WHETHER SUCH CESSER AND/OR ALTERNATIVE USER WAS OF A PERM ANENT OR TEMPORARY NATURE. NO. THE LAND CONTINUED TO BE USED FOR AGRICULTURAL PURPOSES EVEN AFTER THE SALE. 7. WHETHER THE LAND, THOUGH ENTERED IN REVENUE RECORDS, HAD NEVER BEEN ACTUALLY USED FOR AGRICULTURE, THAT IS, IT HAD NEVER BEEN PLOUGHED OR TILLED ? WHETHER THE OWNER MEANT OR INTENDED TO USE IT FOR AGRICULTURAL PURPOSES. THE REVERSE IS TRUE. IN THE REVENUE RECORDS THE LAND IS SHOWN AS NON-AGRICULTURAL BUT WAS USED FOR AGRICULTURAL PURPOSES THROUGHOUT THE POSSESSION OF THE ASSESSEE. 8. WHETHER THE L AND WAS SITUATE IN A DEVELOPED AREA? WHETHER ITS PHYSICAL CHARACTERISTICS, SURROUNDING SITUATION AND USE OF THE LANDS IN THE ADJOINING AREA WERE SUCH AS WOULD INDICATE THAT THE LAND WAS AGRICULTURAL. NO. THE LAND IS SURROUNDED BY THE AGRICULTURAL LANDS. 9. WHETHER THE LAND ITSELF WAS DEVELOPED LAND WAS NEVER DEVELOPED. ONLY A ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 17 BY PLOTTING AND PROVIDING ROADS AND OTHER FACILITIES. SMALL ROOM AND BARAMDA WAS CONSTRUCTED FOR PURPOSES OF CATTLE FEEDING ETC. 10. WHETHER THERE WERE ANY PREVIOUS SALES OF PORTIONS OF THE LAND FOR NON- AGRICULTURAL USE. NO PIECE OF LAND WAS SOLD EARLIER. 11. WHETHER PERMISSION UNDER S. 63 OF THE BOMBAY TENANCY & AGRICULTURAL LANDS ACT, 1948, WAS OBTAINED BECAUSE THE SALE OR INTENDED SALE WAS IN FAVOUR OF A NON -AGRICULTURIST WAS FOR NON AGRICULTURAL OR AGRICULTURAL USER NO. THE LAND HAS BEEN SOLD TO AN AGRICULTURIST ONLY FOR PURPOSES OF AGRICULTURE. 12. WHETHER THE LAND WAS SOLD ON YARDAGE OR ON ACREAGE BASIS NO. 13. WHETHER AN AGRICULTURIST WOULD PURCHASE THE LAND FOR AGRICULTURAL PURPOSES AT THE PRICE AT WHICH THE LAND WAS SOLD AND WHETHER THE OWNER WOULD HAVE EVER SOLD THE LAND VALUING IT AS A PROPERTY THE LAND HAS BEEN PURCHASED BY AN AGRICULTURIST. THE LAND RECORDS LIKE KHASRA GIRDAWARI SHOWS THAT THIS LAND CONTINUOUSLY USED FOR AGRICULTURAL PURPOSES. THE LAND FROM THE D ATE OF PURCHASE TILL THE DATE OF SALE, CONTINUED TO BE USED AS AGRICULTURAL LAND. PRIOR TO THE PURCHASE ALSO, THE LAND CONTINUED TO BE USED FOR AG RICULTURAL PURPOSES AND EVEN AFTER THE SALE, THE LAND CONTINUED TO BE USED FOR AGRICULTURAL PURPOSES. THIS LAND WAS PURCHASED FROM AN AGRICULTURI ST AND ALSO SOLD TO AN AGRICULTURIST. THE TERM AGRICULTURE LAND HAS NOT BEEN DEFINED IN THE CONSTITUTION OF INDIA AND ALSO IN THE INCOME TAX ACT , BUT AGRICULTURE LAND MUST BE LAND WHICH COULD BE SAID TO BE EITHER ACTUAL LY USED OR ORDINARILY USED OR MEANT TO BE USED FOR AGRICULTURE PURPOSE. I N OTHER WORDS, ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 18 AGRICULTURAL LAND MUST HAVE A CONNECTION WITH AN AGR ICULTURE USER OR PURPOSE. THE DETERMINATION OF THE CHARACTER IF A PAR TICULAR PIECE OF LAND, ACCORDING TO THE PURPOSE FOR WHICH IT IS MEANT OR SE T APART AND CAN BE USED. IT IS A MATTER WHICH NEEDS TO BE DETERMINED ON THE FACTS OF EACH PARTICULAR CASE. IT IS NOT THE MERE CONVERSION BUT THE ACTUAL CONDITION AND INTENDED USER, WHICH HAS TO BE SEEN. WHEN THERE ARE SUFFICIENT EVIDENCE AND SURROUNDING CIRCUMSTANCES WHICH INDICATE THE INT ENTION OF OWNER TO CONVERT WITH THE AGRICULTURE LAND TO RESIDENCE WAS NO T THE USE IT FOR THAT PURPOSE. IT CONTINUED TO BE AGRICULTURAL LAND. THERE FORE, THE LAND CAN BE TERMED AS AGRICULTURE LAND. THE AGRICULTURAL INCOM E EARNED WAS BEING DISCLOSED IN THE RETURN OF INCOME. THERE WAS NO PERMI SSION SOUGHT FOR URBANIZATION OF THE LAND. THE SURROUNDING OF LANDS WE RE ALL BEING USED FOR AGRICULTURAL PURPOSES ONLY. THERE WAS NO SCOPE FOR U RBANIZATION AT RELEVANT TIME EVEN IN NEAR FUTURE AS IT WAS SITUATE D AT FARAWAY PLACE FROM MUNICIPAL LIMIT OF TIJARA. THEREFORE, THE DOMINANT FA CTOR FOR CONVERSION OF THIS AGRICULTURAL LAND WAS TO MAKE IT TRANSFERABLE A S THIS AGRICULTURAL LAND WAS BELONGING TO A SCHEDULED CASTE PERSON AND WAS NOT TRANSFERABLE TO ANY OTHER PERSON OTHER THAN THE SCHEDULED CASTE PER SON. THESE ASSESSEES WERE NOT OF THAT CATEGORY. APPARENTLY THE SOLE REASO N FOR CONVERSION WAS TO MAKE THE LAND TRANSFERABLE TO THESE ASSESSEES. TH ERE WAS NO OTHER APPARENT REASON TO CONVERT IT. THE CONVERSION WAS MA DE ONLY TO MAKE THE ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 19 LAND TRANSFERRABLE RATHER THAN THE UTILIZATION OF T HE SAME FOR THE DECLARED PURPOSE FOR WHICH IT WAS CONVERTED. THUS, THE DOMINANT PURPOSE OF CONVERSION WAS TO MAKE THE LAND TRANSFERABLE TO ANY OTHER PERSON NOT LIMITED TO THE SCHEDULED CASTE PERSONS. THE LOCATION OF THE LAND ITSELF SHOWS THAT IT WAS NOT CAPABLE TO BE DEVELOPED FOR URB ANIZATION. THE LAND CONTINUED TO BE CULTIVATED AND ALL THE NECESSARY AC TIVITIES OF AGRICULTURE OPERATIONS CONTINUED ON THIS LAND. PRIOR TO PURCHAS E OF THE LAND, DURING THE HOLDING THE LAND BY THESE ASSESSEES AND EVEN AF TER SELLING OF THIS LAND, THE LAND CONTINUED TO BE USED FOR AGRICULTURE PURPOSES. IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT AND THE HON'B LE HIGH COURTS, THIS LAND CANNOT BE CATEGORIZED AS NON-AGRICULTURE. HENC E THE ADDITION MADE/SUSTAINED DESERVE TO BE DELETED IN ALL THESE A PPEALS. 7. THE OTHER GROUNDS IN ALL THESE APPEALS WERE NOT P RESSED, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. 8. IN THE RESULT, ALL THE SIX APPEALS OF THE ASSESS EES ARE ALLOWED ON THE ISSUE OF CAPITAL GAIN. ORDER PRONOUNCED IN THE OPEN COURT ON 27/04/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 TH APRIL, 2018 ITA 758/JP/2011 & 833 TO 837/JP/2014_ MAMCHAND GURJAR WITH 5 ORS. VS. ITO 20 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- (I) SHRI MAMCHAND GURJAR, ALWAR. (II) SMT. SUKHDAI, ALWAR. (III) SHRI MANPHOOL GURJAR, ALWAR. (IV) SHRI HARI SINGH, ALWAR. (V) SHRI SHYAM LAL, ALWAR. (VI) SHRI JAGAT SINGH, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 2(2), ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 758/JP/2011 & 833 TO 837/JP/201 4) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR