Asif Mehfuz Hariyanawala, Pune V. Income-tax Officer,

ITA 885/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2448 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KIRAN P UNAVEKAR SHRI SH KI
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3); 2(14); 54; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 885 /PN/201 4 / ASSESSMENT YEAR : 20 0 8 - 09 ASIF MEHFUZ HARIYANAWALA, FLAT NO.5, ANGELLINA, RAHEJA GARDEN, B WING, WANWADI, PUNE 411040 . / APPELLANT PAN: A ACPH7740J VS. THE INCOME TAX OFFICER , WARD 7 ( 4 ), PUNE . / RESPONDENT / APPELLANT BY : SHRI SUNIL PATHAK / RESPONDENT BY : SHRI SH. KIRAN P. UNAVEKAR / RESPONDENT BY : SHRI SH. KIRAN P. UNAVEKAR / DATE OF HEARING : 2 9 . 0 3 .201 6 / DATE OF PRONOUNCEM ENT: 31 . 0 3 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - III , PUNE , DATED 07 . 02 .20 1 4 RELATING TO ASSESSMENT YEAR 20 0 8 - 09 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1 961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THAT THE CAPITAL GAINS OF 79,26 , 675 / - ARISING OUT OF SALE OF LAND AT URSE, PUNE WERE CHARG E ABLE TO TAX AS THE LAND WAS NOT AN AGRICULTURAL LAND . 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CAPITAL GAINS ON THE SALE 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CAPITAL GAINS ON THE SALE OF LAND WERE NOT CHARG E ABLE TO TAX FOR THE FOLLOWING REASONS - ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 2 A . THE LAND AT URSE VILLAGE SOLD BY APPELLANT WAS AN AGRICULTURAL LAND NOT CONSTITUTING A CAPITAL ASSET AND THEREFORE , THE CAPITAL GAINS ON SALE THEREOF WAS NOT CHARTABLE TO TAX. B . THE LAND WAS ASSESSED TO LAND REVENUE, IT WAS GRASS LAND AND THE B . THE LAND WAS ASSESSED TO LAND REVENUE, IT WAS GRASS LAND AND THE BUYER COMPANY TO WHOM IT WAS SOLD WAS ALSO USING IT FOR AGRICULTURAL PURPOSES. C . THE POULTRY SHED WAS ON A V ERY SMALL PORTION OF 0 . 74 HECTARES WHILE THE BALANCE 3 . 97 HECTARES WAS A GRASS LAND AND THUS , IT COULD NOT BE HELD TO BE NON AGRICULTURAL LAND. D . THE LAND WAS CAPABLE OF BEING CULTIVATED AND THE FACT THAT THE BUYER HAS BEEN USING THE LAND FOR AGRICULTURAL PURPOSES ITSELF INDICATED THAT THE LAND WAS AN AGRICULTURAL LAND. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ABHIJIT SUBH ASH GAIKWAD VS. DCIT IN ITA NO.699/PN/2013 & ORS RELATING TO ASSESSMENT YEAR 2009 - 10 , ORDER DATED 27.05.2015. HOWEVER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE DEFINITION UNDER SECTION 2(14) OF THE ACT HAVE TO BE TAKEN N OTE OF AND FURTHER REFERENCE WAS MADE TO SECTION 2(EA) OF WEALTH TAX ACT I.E. THE DEFINITION URBAN LAND. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND HAS POINTED OUT THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE AND THE TRIBUNAL IN THE EARLIER DECISION HAS TAKEN NOTE OF THE PROVISIONS OF THE ACT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE OWNED 3.97 HECTAR E S OF LAND AT URSI VILLAGE, PUNE. THE ASSESSEE ADMITTEDLY, WAS NOT CARRYING OUT ANY AGRICULTURAL ACTIVITY ON THE SAID LAND. THE ASSESSEE HAD LEASED OUT PART OF THE SAID LAND TO A POULTRY F A RM AND ON THE BALANCE LAND, THERE WAS SPONTANEOUS GROWTH OF GRASS. THE SAID LAND WAS SITUATED BEYOND 8 KILOMETERS FROM THE MUNICIPAL LIMITS AND AS PER THE CLAIM OF THE ASSESSEE, IT HAD SATISFIED ALL THE REQUIREMENTS FOR BEING TREAT ED THE CLAIM OF THE ASSESSEE, IT HAD SATISFIED ALL THE REQUIREMENTS FOR BEING TREAT ED ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 3 AS AGRICULTURAL LAND. THE SAID LAND WAS SOLD AND THE QUESTION BEFORE US IS ITS ASSESSABILITY. 6. WE FIND THAT A SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL IN ABHIJIT SUBHASH GAIKWAD VS. DCIT IN ITA NO.699/PN/2013 & ORS (SUPRA) , WHEREIN IT WAS HELD AS UNDER: - 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING BEFORE US IS IN RELATION TO THE ASSESSABILITY O F CAPITAL GAINS IN THE HANDS OF ASSESSEE ON SALE OF LAND. THE ASSESSEE CLAIMS TO HAVE SOLD AGRICULTURAL LAND FOR TOTAL CONSIDERATION OF RS.1,01,00,000/ - DURING THE YEAR UNDER CONSIDERATION. THOUGH IN THE RETURN OF INCOME THE ASSESSEE HAD COMPUTED THE INC OME FROM CAPITAL GAINS AND CLAIMED DEDUCTION UNDER SECTION 54 OF THE ACT, HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE PLEA OF THE ASSESSEE WAS THAT THE SAID LAND SOLD BY THE ASSESSEE WAS AN AGRICULTURAL LAND AND HENCE OUTSIDE THE PURVIEW OF B EING TAXED UNDER THE HEAD INCOME FROM CAPITAL GAINS AS IT FELL OUTSIDE THE DEFINITION OF CAPITAL ASSET UNDER SECTION 2(14) OF THE ACT. 13. SECOND 2(14) OF THE ACT DEFINES AGRICULTURAL LAND AS UNDER: - 2. IN THIS ACT, UNLESS THE CONTEXT OTHERWISE REQU IRES, - (14) CAPITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION, BUT DOES NOT INCLUDE (I) .. (II) . (III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SITUATE - ( A ) IN ANY AREA WHICH IS C OMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MUNICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COMMITTEE, TOWN COMMITTEE, OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THA N TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; OR ( B ) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MORE THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNIC IPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CENTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTENT OF, AND SCOPE FOR, URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE; 14. UNDER THE DEFINITION, LAND, WHICH IS AGRICULTURAL LAND FALLS OUTSIDE THE PURVIEW OF BEING CAPITAL ASSET SUBJECT TO FULFILMENT OF SUB - CLAUSES (A) AND (B), WHICH INTER - ALIA PROVIDED THAT THE LAND IN QUESTION SHOULD NOT BE WITHIN THE JURISDICTION OF A MUNICIPALITY OR CANTONMENT BOARD, ITS POPULATION OF NOT LESS THAN 10,000 PERSONS AND FURTHER IT SHOULD NOT BE IN AN AREA NOT BEING MORE THAN 8 KILOMETERS FROM THE MUNICIPAL LIMITS OR CANTONMENT BOARD. IN THE PRESENT CASE, THE FULFILLMENT OF CONDITIONS IN CLAUSES (A) AND (B) ARE CONSIDERED TO HAVE BEEN MET I.E. THE LAND IN QUESTION IS SITUATED BEYOND 8 KILOMETERS FROM THE LOCAL ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 4 LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD AND ALSO THE AREA IN WHICH THE SAID LAND IS SITUATED DOES NOT HAVE POPULATION OF MORE THAN 10,000. THE ONLY QUESTION WHICH REMAINS TO BE ADJUDICATED IN THE PRESENT CASE IS WHETHER THE LAND SOLD BY THE ASSESSEE WAS AN AGRICULTURAL LAND AND WHETHER IT FALLS OUTSIDE THE DEFINITION OF CAPITAL ASSET. 15. THE HONBLE SUPREME COURT IN CIT VS. RAJA BENOY KUMAR SAHAS ROY (1957) 32 ITR 466 (SC) HAD HELD THAT AGRICULTURE IN ITS ROOT SENSE MEAN AGAR, A FIELD AND CULTURE, I.E. CULTIVATION OF A FIELD. AGRICULTURE IMPLIES EXPENDITURE OF HUMAN SKILLS AND LABOUR UPON LAND. AFTER EXHAUSTIVE LY DISCUSSING THE VARIOUS CASES DEALING WITH THE SUBJECT, THE APEX COURT HELD THAT AGRICULTURE INVOLVED 'BASIC OPERATIONS', SUCH AS TILLING OF LAND, SOWING OF SEEDS, PLANTING ETC. AND 'SUBSEQUENT OPERATIONS', SUCH AS WEEDING, TENDING, PRUNING, CUTTING, HAR VESTING AND RENDERING THE PRODUCE FIT FOR MARKET. 16. FURTHER, THE HONBLE GUJARAT HIGH COURT IN CIT VS. SIDDHARTH J. DESAI (SUPRA) HAD LAID DOWN 13 TESTS TO DETERMINE WHETHER A PARTICULAR LAND IS AGRICULTURAL LAND OR NOR WHICH ARE AS UNDER: - (1) WHE THER THE LAND WAS CLASSIFIED IN THE REVENUE RECORDS AS AGRICULTURAL LAND WHETHER IT WAS SUBJECT TO THE PAYMENT OF LAND REVENUE? (2) WHETHER THE LAND WAS ACTUALLY OR ORDINARILY USED FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEVANT TIME? (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 (4) WHETHER THE INCOME DERIVED FROM THE AGRICULTURAL OPERATIONS (4) WHETHER THE INCOME DERIVED FROM THE AGRICULTURAL OPERATIONS CARRIED ON IN THE LAND BORE ANY RATIONAL PROPORTION TO THE INVESTMENT M ADE IN PURCHASING THE LAND? (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 VENDEE)? WHETHER SUCH PERMISSION WAS IN RESPECT OF A PORT ION 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? (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 PERMANENT OR TEMPORARY NATURE? (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? WHE THER THE OWNER MEANT OR INTENDED TO USE IT FOR AGRICULTURAL PURPOSES? (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? (9) WHETHER THE LAND ITSELF WAS DEVELOPED BY PLOTTING AND PROVIDING ROADS AND OTHER FACILITIES? ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 5 (10) WHETHER THERE WERE ANY PREVIOUS SALES OF PORTIONS OF THE LAND FOR NON - AGRICULTURAL USE? (11) WHETHER PERMISSION UNDER S. 63 OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948, WAS OBTAINED BECAUSE THE SALE OR INTENDED SALE WAS IN FAVOUR OF A NON - AGRICULTURIST? IF SO, WHETHER THE SALE OR INTENDED SALE TO SUCH NON - AGRICULTURIST WAS FOR NON - AGRICULTURAL OR AGRICULTURAL USER ? (12) WHETHER THE LAND WAS SOLD ON YARDAGE OR ON ACREAGE BASIS? (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 P ROPERTY YIELDING AGRICULTURAL PRODUCE ON THE BASIS OF ITS YIELD? 17. THE HONBLE GUJARAT HIGH COURT FURTHER HELD THAT AT THE RISK OF REPETITION, WE MAY MENTION THAT NOT ALL OF THESE FACTORS WOULD BE PRESENT OR ABSENT IN ANY CASE AND THAT IN EACH CASE ONE OR MORE OF THOSE FACTORS MAY MAKE APPEARANCE AND THAT THE ULTIMATE DECISION WILL HAVE TO BE REACHED ON A BALANCED CONSIDERATION OF THE TOTALITY OF CIRCUMSTANCES. 18. THE HONBLE SUPREME COURT IN SMT. SARIFABIBI MOHMED IBRAHIM & OTHERS VS. CIT (SUPRA) HAD LAID DOWN AS UNDER: - WHETHER A PIECE OF LAND IS AGRICULTURAL LAND OR NOT IS ESSENTIALLY A QUESTION OF FACT. SEVERAL TESTS HAVE BEEN EVOLVED IN DECISIONS OF THE SUPREME COURT AND THE HIGH COURTS, BUT ALL OF THEM ARE MORE IN THE NATURE OF GUIDELINES. TH E QUESTION HAS TO BE ANSWERED IN EACH CASE, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THAT CASE. THERE MAY BE FACTORS BOTH FOR OR AGAINST A PARTICULAR POINT OF VIEW. THE COURT HAS BE FACTORS BOTH FOR OR AGAINST A PARTICULAR POINT OF VIEW. THE COURT HAS TO ANSWER THE QUESTION ON A CONSIDERATION OF ALL OF THEM A PROCESS OF EVALUATION. THE INFERENCE HAS TO BE DRAWN ON A CUMULATIVE CONSIDERATION OF ALL THE RELEVANT FACTS. 19. THE HONBLE BOMBAY HIGH COURT IN CIT VS. V.A. TRIVEDI (1988) 172 ITR 95 (BOM) I.E. THE DECISION RELIED UPON BY THE ASSESSING OFFICER, AFTER CONSID ERING THE FACTS OF THE CASE, IT WAS HELD THAT TO ASCERTAIN THE TRUE CHARACTER AND NATURE OF THE LAND, IT MUST BE SEEN WHETHER IT HAS BEEN PUT TO USE FOR AGRICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME, PRIOR TO THE RELEVANT DATE AND FURTHER WHETHER ON THE RELEVANT DATE THE LAND WAS INTENDED TO BE PUT TO USE FOR AGRICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME IN THE FUTURE. 20. FOLLOWING THE JUDICIAL PROPOSITION LAID DOWN BY THE HONBLE SUPREME COURT AND VARIOUS HIGH COURTS IN ORDER TO DETERMINE THE NATURE OF THE AGRICULTURAL LAND, THE FIRST AND FOREMOST TEST WAS WHETHER THE LAND WAS ACTUALLY AND ORDINARILY USED FOR THE PURPOSE OF AGRICULTURE. WHERE THE SAID LAND HAD NOT BEEN ACTUALLY CULTIVATED IN THE RECENT PAST AND / OR THERE WAS NO INTENTION OF USING THE LAND FOR AGRICULTURAL PURPOSES IN NEAR FUTURE, WAS HELD BY THE COURTS TO BE THE MOST CONCLUSIVE FEATURE TO DETERMINE THE NATURE OF LAND IN QUESTION. MERELY BECAUSE THE LAND WAS SHOWN AS AGRICULTURAL IN REVENUE RECORDS WAS HELD TO BE NOT THE CONC LUSIVE TEST TO DETERMINE THAT THE LAND WAS AGRICULTURAL LAND. 21. THE HONBLE BOMBAY HIGH COURT IN GOPAL C. SHARMA VS. CIT (SUPRA) HAD HELD AS UNDER: - THE EXPRESSION AGRICULTURAL LAND' IS NOT DEFINED IN THE INCOME TAX ACT, 1961. THE UNDERLYING OBJECT OF THE ACT TO EXEMPT AGRICULTURAL INCOME FROM INCOME TAX IS TO ENCOURAGE ACTUAL CULTIVATION OR DE FACTO ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 6 AGRICULTURAL OPERATIONS. ACTUAL USE OF THE LAND FOR AGRICULTURAL PURPOSE OR ABSENCE THEREOF AT THE RELEVANT TIME IS UNDOUBTEDLY ONE OF THE CRUCIAL TESTS FOR THE DETERMINATION OF THE ISSUE. IT IS WELL SETTLED THAT THE NATURE AND CHARACTER OF LAND MAY UNDERGO A CHANGE DEPENDING UPON ITS SITUATION, GROWTH OF THE LOCALITY OR ZONE IN WHICH IT IS SITUATE AND ITS POTENTIALITY. THE FACT THAT THE LAND IS SOLD OR T RANSFERRED TO A NON AGRICULTURIST FOR A NON AGRICULTURAL PURPOSE OR THAT IT IS LIKELY TO BE USED FOR NON AGRICULTURAL PURPOSES SOON AFTER ITS TRANSFER IS ALSO A RELEVANT FACTOR GERMANE TO THE DETERMINATION OF THE ISSUE. MERELY BECAUSE THE LAND WAS USED FOR AGRICULTURAL PURPOSES IN THE REMOTE PAST OR ITS CONTINUES TO BE ASSESSED TO LAND REVENUE A AGRICULTURAL LAND IS NOT DECISIVE. IN ORDER TO ASCERTAIN THE TRUE CHARACTER AND NATURE OF THE LAND IT MUST BE SEEN WHETHER THE LAND HAD BEEN PUT TO USE FOR AGRICULT URAL PURPOSES FOR A REASONABLE SPAN OF TIME PRIOR TO THE RELEVANT DATE AND FURTHER AS TO WHETHER ON THE DATE OF THE TRANSFER THE LAND IN QUESTION WAS INTENDED TO BE PUT TO USE BY THE PURCHASER FOR AGRICULTURAL PURPOSES FOR A REASONABLE SPAN OF TIME IN FUTU RE' 22. THE JUDICIAL PRECEDENTS HAVE LAID DOWN THAT THE EXPRESSION AGRICULTURAL LAND THOUGH NOT DEFINED UNDER THE INCOME - TAX ACT, BUT WOULD BE APPLICABLE TO SUCH LAND WHERE THE ACTUAL USER OF THE LAND WAS FOR AGRICULTURAL PURPOSES IN RECENT TIMES. JUS T BECAUSE THE LAND WAS USED FOR AGRICULTURAL PURPOSES IN THE REMOTE PAST OR IT CONTINUES TO BE ASSESSED IN THE LAND REVENUE RECORDS AS AGRICULTURAL LAND IS NOT DECISIVE TO DETERMINE THE NATURE OF LAND BEING AGRICULTURAL LAND. WHERE THE LAND HAS NOT BEEN P UT TO USE FOR AGRICULTURAL PURPOSES FOR REASONABLE SPAN OF TIME PRIOR TO THE DATE OF ITS TRANSFER, THE LAND IN QUESTION CANNOT BE HELD TO BE AGRICULTURAL LAND. THE ONUS WAS UPON THE ASSESSEE TO ESTABLISH ITS CASE OF HAVING CULTIVATED THE LAND IN RECENT PA ST AND IN THE ABSENCE OF ASSESSEE HAVING DISCHARGED ITS ONUS AND MERELY BECAUSE THE LAND IS RECORDED AS AGRICULTURAL LAND IN THE REVENUE RECORDS, DOES NOT ESTABLISH THE CASE OF ASSESSEE. ESTABLISH THE CASE OF ASSESSEE. 23. NOW, COMING TO THE FACTS OF THE PRESENT CASE, THE ASSESSEE BEF ORE THE ASSESSING OFFICER HAD FURNISHED THE COPY OF 7/12 EXTRACT, ACCORDING TO WHICH THE LAND WAS A JIRAYAT FALLOW LAND I.E. LAND BEING NOT CAPABLE OF CULTIVATION. THE 7/12 EXTRACT FURNISHED BY THE ASSESSEE HAS BEEN SCANNED BY THE ASSESSING OFFICER, COPY OF WHICH IS PLACED AT PAGES 4 AND 5 OF THE ASSESSMENT ORDER, WHICH REFLECTS NO AGRICULTURAL ACTIVITY HAVING BEEN CARRIED ON BY THE ASSESSEE. THE ASSESSEE HAS NOT DECLARED ANY AGRICULTURAL INCOME IN ITS HANDS NOR ANY EVIDENCE HAS BEEN PRODUCED BY THE ASSES SEE IN ANY OF THE PROCEEDINGS OR EVEN BEFORE US TO ESTABLISH THAT THE LAND IN QUESTION WAS ACTUALLY BEING USED FOR CULTIVATION AT ANY TIME OR ANY BASIC OPERATION OR SUBSEQUENT OPERATIONS WERE CARRIED OUT IN THE LAND. THE REPORT OF THE INSPECTOR WAS OBTAIN ED BY THE ASSESSING OFFICER, WHICH CLEARLY MENTIONED THAT THE LAND WAS NOT FIT FOR CULTIVATION WHICH HAS NOT BEEN CHALLENGED BY THE ASSESSEE. IN THE ABSENCE OF FULFILMENT OF FUNDAMENTAL FACT THAT THE LAND WAS USED FOR AGRICULTURE, MERELY MENTIONING OF THE LAND AS AGRICULTURAL LAND IN THE PURCHASE DEED AND OR IN THE SALE DEED OR EVEN IN THE REVENUE RECORDS CANNOT ESTABLISH THE CASE OF THE ASSESSEE THAT THE LAND SOLD BY IT WAS AN AGRICULTURAL LAND. EVEN OTHERWISE, THE ASSESSEE IN THE RETURN OF INCOME HAD CO MPUTED THE INCOME FROM CAPITAL GAINS AS UNDER: - FULL VALUE OF CONSIDERATION 1,01,00,000 COST OF ACQUISITION AFTER INDEXATION 4,72,572 BALANCE 96,27,428 DEDUCTION U/S 54/ 54B/ 54D/ 54EC/ 54F/ 54G 54GA 96,27,428 TAXABLE CAPITAL GAINS NIL ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 7 24. THE ASSES SEE IN THE RETURN OF INCOME HAD NOT CLAIMED THAT IT SOLD AGRICULTURAL LAND, BUT ON THE OTHER HAND HAD CLAIMED DEDUCTION UNDER SECTION 54 OF THE ACT, IN SUPPORT OF WHICH, ASSESSEE FAILED TO FURNISH ANY DOCUMENTS AND HENCE THAT CLAIM OF SECTION 54 OF THE ACT WAS HELD TO BE NOT ALLOWABLE TO THE ASSESSEE. ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CLAIMED THAT THE SAID LAND WAS AGRICULTURAL LAND BEING OUTSIDE THE CITY LIMITS AND IN SUPPORT THEREOF, THE NECESSARY EVIDENCE WAS FILED. HOWEVER, THE ASSESSEE FAILED TO FURNISH ON RECORD ANY EVIDENCE TO ESTABLISH ITS CASE OF HAVING CULTIVATED THE SAID LAND OR HAVING CARRIED OUT ANY AGRICULTURAL OPERATIONS. NO AGRICULTURAL INCOME HAS BEEN DECLARED IN ANY O F THE YEAR OF HOLDING OF SUCH LAND. IN THE ABSENCE OF THE SAME AND IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE SAID LAND SOLD BY THE ASSESSEE IS AN AGRICULTURAL LAND AND SALE PROCEEDS OF WHICH ARE EXEMPT FROM TAX. 25. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE OTHER HAND PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN HINDUSTAN INDUSTRIAL RESOURCES LTD. VS. ACIT (SUPRA), WHEREIN IT WAS HELD THAT THE FA CT THAT THE ASSESSEE DID NOT CARRY OUT ANY AGRICULTURAL OPERATIONS DID NOT RESULT IN ANY CONVERSION OF THE SAID LAND INTO INDUSTRIAL LAND AND THE FINDING THAT THE LAND WAS NOT AGRICULTURAL LAND WAS REVERSED BY THE HONBLE DELHI HIGH COURT (SUPRA). HOWEVER , THE FINDING OF THE HONBLE DELHI HIGH COURT (SUPRA) IS CONTRARY TO THE FINDING OF JURISDICTIONAL HIGH COURT IN GOPAL C. SHARMA VS. CIT (SUPRA), WHICH HAS BEEN REFERRED TO BY US IN THE PARAS HEREINABOVE, WHICH IN TURN HAS BEEN RELIED UPON BY THE ASSESSING OFFICER / CIT(A) AND ALSO BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. THOUGH THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD FILED COMPILATION OF CASE LAWS, BUT DURING THE COURSE OF HEARING HAD ONLY RELIED ON THE RATIO LAID DOW N BY THE HONBLE DELHI HIGH COURT IN HINDUSTAN INDUSTRIAL RESOURCES LTD. VS. ACIT (SUPRA). THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF BOMBAY AT GOA IN CIT VS. RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF BOMBAY AT GOA IN CIT VS. SMT. DEBBIE ALEMAO (2011) 3 31 ITR 59 AND PUNE BENCH OF TRIBUNAL IN HARESH V. MILANI VS. JCIT IN ITA NO.192/PN/2003 RELATING TO ASSESSMENT YEAR 1995 - 96 REPORTED IN (2007) 111 TTJ (PUNE) 310. THE PERUSAL OF FACTS OF BOTH THE CASES REFLECT THAT IN BOTH THE ABOVE SAID DECISIONS, THE LA ND WAS CULTIVATED BY THE ASSESSEE AND EVEN THE NATURE OF THE CROP IS MENTIONED. HOWEVER, IN THE FACTS OF THE PRESENT CASE BEFORE US AS POINTED OUT BY US IN THE PARAS HEREINABOVE, THE ASSESSEE HAS FAILED TO ESTABLISH WHETHER THE LAND WAS USED FOR CARRYING ON ANY AGRICULTURAL ACTIVITY. ON THE OTHER HAND, FINDINGS OF THE AUTHORITIES BELOW IS THAT THE LAND WAS IN FACT BARREN LAND, AS REPORTED IN 7/12 EXTRACT FURNISHED PRIOR TO THE COMPLETION OF ASSESSMENT AND THE LAND WAS NOT AT ALL USED FOR AGRICULTURAL ACTI VITIES AS BEING CLAIMED BY THE ASSESSEE. IN REPLY, THE CASE OF THE ASSESSEE IS THAT THE LAND IS CAPABLE OF DOING CULTIVATION AND AGRICULTURAL ACTIVITY. HOWEVER, THE ASSESSEE HAS NOT FILED ON RECORD ANY EVIDENCE OF HAVING CULTIVATED THE LAND OR ANY AGRICU LTURAL ACTIVITY WAS BEING CARRIED ON EXCEPT FOR HIS CLAIM THAT THE STATUS OF THE LAND BOTH IN THE PURCHASE AND SALE DEED AND ALSO IN THE REVENUE RECORDS WAS AN AGRICULTURAL LAND. 26. IN VIEW OF THE DECISION OF JURISDICTIONAL HIGH COURT IN CIT VS. V.A. T RIVEDI (SUPRA) AND GOPAL C. SHARMA VS. CIT (SUPRA), WE FIND NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN HINDUSTAN INDUSTRIAL RESOURCES LTD. VS. AC IT (SUPRA). REJECTING THE SAME, WE HOLD THAT IN THE ABSENCE OF THE ASSESSEE HAVING ESTABLISHED ITS CASE OF THE LAND SOLD BY HIM WAS AGRICULTURAL LAND, WE UPHOLD THE ORDER OF CIT(A) IN ASSESSING THE INCOME UNDER THE HEAD INCOME FROM CAPITAL GAINS AT RS.9 6 LAKHS. IN THE ABSENCE OF ASSESSEE HAVING FAILED TO FURNISH ANY EVIDENCE VIS - - VIS ITS CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT, THE SAME IS ALSO REJECTED. UPHOLDING THE ORDER OF CIT(A), WE DISMISS THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. ITA NO. 885 /PN/20 1 4 ASIF MEHFUZ HARIYANAWALA 8 7. THE ISSUE ARISING BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN ABHIJIT SUBHASH GAIKWAD VS. DCIT IN ITA NO.699/PN/2013 & ORS (SUPRA) , WHEREIN THE PROVISIONS OF SECTION 2(14) OF THE ACT WERE ALSO TAKEN NOTE AND MEANING EXPRESSION AGRICULTURAL LAND AND FOLLOWING THE SAME PARITY OF REASONING, WE UPHOLD THE ORDER OF CIT(A). THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 3 1 ST DAY OF MARCH , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 31 ST MARCH , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I I I, PUNE ; 4. / THE CIT - I V , PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE