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Showing 41 to 60 of 1329 Records
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2023 (5) TMI 1289 - GUJARAT HIGH COURT
Seeking grant of Regular bail - offences punishable under Sections 409, 419, 465, 467, 468, 471, 120B, 34 of Indian Penal Code, 1860 - HELD THAT:- Even as per the affidavit filed by Investigating Officer, the amount involved qua present applicant is only Rs.50,000/- as pointed by learned advocate Mr. Yash Nanavaty and could not be disputed by learned APP - there is no past antecedent reported against the present applicant - Learned APP could not point out any exceptional circumstances.
The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.11210015220162 of 2022 dated 19.10.2022 registered with D.C.B. Police Station, District: Surat on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed - application allowed.
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2023 (5) TMI 1288 - CESTAT AHMEDABAD
Classification of imported goods - un-coated calcite powder - to be classified under Heading No. 25309030 or under Tariff Heading No 28365000? - HELD THAT:- It is found from the factual matrix that at the relevant time Kandla port CRCL laboratory, was not having requisite test facility, even as per the case laws cited as well as the Board Circular No. 43/2017-Cus dated 16.11.2017. Further, once a report was received by the party and it sought re-test within reasonable time and simultaneously or even before the test report did test at the private lab same should have been accepted.
It is also found that the impugned order of the Commissioner (Appeals) gives no reasons as to why the department could not agree with the request of re-test.
The test report as submitted by the party is required to be accepted - classification as claimed by the party on that basis is accepted - The appeal is therefore allowed.
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2023 (5) TMI 1287 - ITAT JAIPUR
Foreign tax credit - claim denied as assessee filed Form 67 delayed - part of the salary income was received by the assessee from outside India i.e. United Kingdom (UK) and remaining portion was earned by the assessee in India, therefore, assessee considered income earned in UK as part of his total income offered for taxation in India - HELD THAT:- As decided in Brinda Ramakrishna [2022 (2) TMI 752 - ITAT BANGALORE] not allowing FTC for the sole reason of delayed filing of Form 67 was held to be a mistake apparent on the record.
Therefore, it was held by the Coordinate Benches of the Tribunal in the cases supra, that rectification application of the assessee for not allowing claim of FTC was maintainable and the Coordinate Bench of the Tribunal, in the cases of Brinda Ramakrishna [2022 (2) TMI 752 - ITAT BANGALORE], Bhaskar Dutta [2023 (1) TMI 534 - ITAT DELHI], Sumedha Arora [2023 (3) TMI 719 - ITAT DELHI] has held that Form 67 filed by the respective assessees, even after the end of the relevant assessment year makes the assessee entitled to claim FTC.
Therefore, considering the facts of the present case, the FTC deserves to be allowed to the assessee even if Form 67 was filed by the assessee after the due date of filing the return under section 139(1) of the IT Act, 1961, and in our view not allowing foreign tax credit by AO (CPC) was nothing, but a mistake apparent on record. Therefore, we direct the revenue to allow the claim of the assessee.
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2023 (5) TMI 1286 - ITAT KOLKATA
Relief u/s 90 - foreign tax credit - Disallowing the relief of tax paid in Republic of Korea on delay in filing of Form 67 - HELD THAT:- Above finding of the Tribunal in SONAKSHI SINHA case [2022 (10) TMI 107 - ITAT MUMBAI] is squarely applicable on the facts of the case in hand and the same remains uncontroverted by the ld. D/R by way of placing reliance on any other binding precedents in its favour. We, therefore, respectfully following the same, are inclined to hold that the Assessing Officer ought not to have denied the relief u/s 90 of the Act merely for delay in filing of Form 67. Thus, effective ground of the assessee is allowed.
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2023 (5) TMI 1285 - ITAT INDORE
Profit on on-money on sale of flats/plots - estimated addition of on-money received at 30% and profit at 34% thereon - HELD THAT:- AO while passing the assessment order did not accepted the revised/hiked price of the plots, but estimated the receipt of on-money at 30% on the sales and advances for this asst year 2014-15 and determined the additional income. In our considered view, the AO has neither justified the above addition nor accepted the increased price made by the assessee pursuant to the search action.
Hon’ble Apex Court in the case of Installment Supply Pvt Ltd -Vs- Union of India [2017 (6) TMI 786 - GUJARAT HIGH COURT] clearly held that in Tax matters, there is no question of res judicata, because each year’s assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period by following Privy Council case laws namely House of Lords in Society of Medical Officers of Health -Vs- Hope [valuation officer] and Broken Hill Proprietary Company Ltd -Vs- Municipal Council of Broken Hill.
In the most celebrated case of Radhaswami Stasang [1991 (11) TMI 2 - SUPREME COURT] held that each assessment is a separate unit. Decision in one year may not carry forward and held for a subsequent year. An issue which is significant only for a particular year once decided cannot be held res judicata for a subsequent year. The evidence of one asst. year cannot be utilized for another asst. year without necessary material records or evidences. It is settled law by various Courts that income could not be estimated for the other years on the basis of evidence found for one particular year, especially when there was no incriminating evidence pertained to any other assessment year.
Also held that the theory of extrapolation is not logical method for determining the actual total Income and it is established law that the assessment should be made on the basis of only incriminating documents found during the course of survey/search proceedings. Further entire edifice of the addition has been made by the AO only in the realm of extrapolation of the figures of on-money received by the assessee before the date of search to the period of post search. There is no material to indicate, even remotely, that the assessee indulged in receipt of on-money during the post search period as well. In our considered opinion, such an approach cannot be accorded imprimatur. Thus we do not find any infirmity in the order passed by the Ld CIT[A] deleting the addition made by the AO. Thus the Ground raised by the Revenue is devoid of merits and liable to be dismissed.
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2023 (5) TMI 1284 - DELHI HIGH COURT
Validity of reopening of assessment - order issued u/s 148A(d) - immovable property sold and that capital gains earned had not been disclosed - petitioner pointed out, that it had not sold any property, and instead bought the property - HELD THAT:- Assessee is right in contending that there was no application of mind by the AO while passing the impugned order u/s 148A(d) and is also right in contending that the aforementioned order is not aligned with the notice dated 19.05.2022 issued u/s 148A(b) of the Act.
We are also surprised, that the notice u/s 148A(b) was issued on 19.05.2022 wherein, as observed above, the allegation made is that the petitioner had sold the subject property, despite information in that regard being supplied by the petitioner, as far back as on 22.04.2021, against a notice issued u/s 133(6) of the Act.
Petitioner had clearly indicated, that it had purchased the property. The assertation was backed by relevant documents, which for some reason, the AO chose to ignore.
We are of the view, that if at all, the AO deems it fit to carry out a fresh exercise, it would be from the stage prior to the issuance of notice u/s 148A(b) of the Act. Clearly, the AO has missed the most crucial part of the transaction, that it was a purchase and not a sale transaction.
Accordingly, the impugned order dated 28.07.2022 passed under Section 148A(d) of the Act, and the consequential notice of even date i.e., 28.07.2022 are set aside.
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2023 (5) TMI 1283 - ITAT AHMEDABAD
Late payment of PF and ESIC contribution - amount deposited before the due date of filing of the Income Tax Return - disallowance in the intimation passed u/s. 143(1) - HELD THAT:- We note that identical issue is dealt by us recently and decided against the assessee by the Co-ordinate Bench of the Tribunal [2023 (4) TMI 1281 - ITAT INDORE] after taking into account the latest judgment of Checkmate Services (P.) Ltd.[2022 (10) TMI 617 - SUPREME COURT] held that non obstante clause under section 43B could not apply in case of employee's contribution which were deducted from their income and was not part of assessee-employer's income and, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction.
Contention of the assessee CPC should not have made the disallowance u/s. 36(1)(va) in 143(1) proceedings which is a debatable and controversial issue by different High Courts - he provisions of Section 143(1)(a) deals with the total income or loss shall be computed after making the following adjustments namely “(ii) an incorrect claim, if such incorrect claim is apparent from any information in the return”. Thus we are of the considered opinion as per the first proviso to section 143(1)(a), CPC had given a communication dated 19.02.2019 to the assessee, why not to make a disallowance 36(1)(va) being the late payment of PF and ESIC. However the assessee has not responded to the communication issued by the CPC. It is, thereafter as per section 143(1)(a)(ii), being an incorrect claim made by the assessee, which is apparent from the information filed in the Return of Income, thus the CPC rightly made the disallowance, which is well within the provisions of law.
Thus we are of the considered view, the disallowance of late payment of PF & ESIC made u/s. 143(1) is valid in law. Thus the grounds of appeal raised by the assessee are devoid of merits. The case laws relied by the assessee are prior to the judgment passed by the Hon’ble Supreme Court in the case of Checkmate Services (P.) Ltd.[supra] Thus the grounds raised by the assessee are hereby dismissed.
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2023 (5) TMI 1282 - SC ORDER
Grant of interim protection - HELD THAT:- ECIR was registered on 31.01.2011. The prosecution complaint was registered on 29.06.2018. The appellant was not named therein. But in the supplementary complaint filed on 23.12.2022, the appellant was named.
During this entire period of eleven years, the appellant was not arrested - Appeal allowed - the interim protection granted to the appellant on 24.03.2023 is made absolute.
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2023 (5) TMI 1281 - SC ORDER
Money Laundering - maintainability of petition - availability of alternative remedy - provisional attachment of properties - HELD THAT:- The appeal stands allowed in terms of the signed order.
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2023 (5) TMI 1280 - ALLAHABAD HIGH COURT
Application filed under section 319 Cr.P.C. to summon the applicant - compromise between the parties was arrived at between them to their satisfaction and the contesting parties were satisfied by the said compromise - Permissibility of the piecemeal compromise between the parties - Expression of word 'Evidence' in Section 319 Cr.P.C.
Permissibility of the piecemeal compromise between the parties - HELD THAT:- The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by the distorted perceptions and is not slave to anything, except to caution and circumspection, the standard of which the Court sets before it, in exercise of such plenary and unflattered power inherently vested in it while donning the cloak of compassion to achieve the end of justice. No embargo, be in a shape of Section 320 Cr.PC.(Cr.P.C.) or any other such curtailment, can whittle down the powers under section 482 Cr.P.C.
Similarly, when the Revisional Court considered, it has been clearly mentioned that the offence is not compoundable offence under the provision of Section 320 Cr.P.C, and therefore, it has been mentioned that said compromise have got no bearing in the offence. This proposition of law is unswallowable and cannot be accepted. The scope and ambit of Section 482 Cr.P.C. is in much wider than that of Section 320 Cr.P.C.
Expression of word 'Evidence' in Section 319 Cr.P.C. - HELD THAT:- For the exercise of power under Section 319 Cr.P.C., the use of word `evidence' means material that has come before the court during an inquiry or trial by it and not otherwise. If from the evidence led in the trial the court is of the opinion that a person not accused before it, has also committed the offence, the court may summon such person under Section 319 Cr.P.C.
The word "evidence" therefore has to be understood in its widest sense, both at the stage of trial and, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial as well as the material collected during investigation or even in an inquiry.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet - the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
There are no hesitation to quash both the orders of learned A.C.M.M-III, Kanpur Nagar dated 22.11.2022 allowing the application under section 319 Cr.P.C. by the Public Prosecutor and when the same was challenged before the learned Sessions Judge, Kanpur Nagar by way of Criminal Revision No. 390 of 2022, the same was rejected confirming the orders of learned A.C.M.M-III, Kanpur Nagar - present application filed under section 482 Cr.P.C. hereby stands allowed.
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2023 (5) TMI 1279 - ITAT SURAT
Unexplained money being undisclosed gold, Jewellery found during the course of search - Applicability of section 115BBE when the date of search is 16.08.2016 - As argued on the date of search i.e. 16.08.2016, the amendment to section 115BBE of the Act which is applied by the assessing officer was yet to come into the statute as the said amendment came into effect after demonetization by Taxation Laws (Second Amendment) Bill 2016 which is effective from 01.04.2017,hence provision of section 115BBE of the Act has been applied retrospectively - HELD THAT:- We note that case of the assessee, under consideration is that the amendment in section 115BBE came into force only on 15.12.2016 whereas the search was conducted on 16.08.2016 and the assessee has paid tax @ 30%. Since the search in the case of the assessee was carried out before the amendment the addition ought to have been made in terms of the prevailing provision and therefore, the addition made by the assessing officer invoking section 115BBE, provision of which came into force only on 01.04.2017, is not sustainable. Therefore, we allow the appeal of the assessee.
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2023 (5) TMI 1278 - ITAT BANGALORE
Disallowance of interest expenditure u/s 36(1)(iii) - advances to sister concerns - AO observed that the advance paid to sister concern was capital in nature, because the loan advanced to it was for purchase of land and it was not put to use during the impugned assessment year, therefore the interest expenditure should be capitalized instead of claiming it as revenue expenditure - AR strongly submitted that proviso to section 36(1)(iii) is not applicable in the present facts of the case and submitted that assessee had sufficient internal accruals during the impugned assessment year which is evident from the cash flow statements which is part & parcel of the financial statements - HELD THAT:- On going through the ledger account of sister concern in the books of the assessee company, it is noticed that the interest free funds have been given on various dates on piece-meal basis and the amount has also been received back from the sister concern on different dates, but no interest has been charged on the advances.
We further note since the internal cash accruals from operations are more than the interest free funds advanced to the sister concern for business purposes, it cannot be said that the interest bearing loan funds had been utilized by the assessee for the purpose of giving interest free advances over the years to its sister concern - In view of this factual finding and relying on the judgment of Munjal Sales Corporation v. CIT [2008 (2) TMI 19 - SUPREME COURT] we hold that proviso to section 36(1)(iii) is not applicable in the present case. Accordingly, we set aside the order of the CIT(Appeals) and delete the addition. Decided in favour of assessee.
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2023 (5) TMI 1277 - ITAT AHMEDABAD
Condonation of delay - delay of 1976 days - Department launched prosecution case against the assessee on 14.05.2018 by filing a criminal case against the assessee and the Hon’ble Additional Chief Metropolitan Magistrate, Ahmedabad passed an order on the assessee u/s 279(1) - HELD THAT:- The fact of Department having launched prosecution against the assessee came to the notice of the assessee only on the month of May / June 2021 on receipt of order of Hon’ble Additional Chief Metropolitan Magistrate, Ahmedabad. The assessee was advised by his consultant to file compounding application, which was filed before Principal CCIT on 03.12.2021. However, the Principal CCIT rejected the compounding application vide order dated 12.01.2022. It was owing to the aforesaid circumstances that there was a delay of 1976 days in filing of the present appeal before ITAT.
This is a fit case for condonation of delay. Accordingly, we are hereby condoning the delay of 1976 days in filing of the present appeal, in the interest of justice.
Penalty u/s 271(1)(c) - Additional income on account of excess stock u/s 69B - HELD THAT:- As we are of the view that this is not a case of concealment of income and the excess stock found the case of M/s. Pankaj Textile was more or less neutralized on account of excess stock in the case of M/s. Sonal Fabrics and M/s. Mahek Impex. Further, at the time such excess stock was found by the Department, it is observed that since books of accounts were not written up to date of search, proper books stock could not be arrived at and as the physical stocks of various firms operating from the same premises were mixed, there arose a difference in the physical stocks as compared to the books stock. Accordingly, looking into the facts of the instant case we are of the considered view that at this is not a fit case for levy of penalty under Section 271(1)(c) of the Act. Accordingly, we are hereby directing that the levy of penalty under Section 271(1)(c) of the Act be set-aside.
Appeal of the assessee is allowed.
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2023 (5) TMI 1276 - SUPREME COURT
Restoration of decree of dismissal of the suit by the trial Court - Regular Civil Suit is one for possession of suit land on the strength of title - Plaintiff proves that he purchased the suit field from Defendants or not - sale deed was nominal and by way of collateral security and the said transaction was hit by the provisions of Section 8 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act or not - HELD THAT:- There is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) of the Fragmentation Act makes void only the transfer or partition of any land contrary to the provisions of the said Act. The word ‘transfer’ is not defined under the Fragmentation Act though the expression ‘land’ has been defined thereunder. As per Section 2 (5) of the Fragmentation Act, the term ‘land’ means, ‘agricultural land whether alienated or unalienated’ - A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/- shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned.
A conjoint reading of Section 36A and 36B of the Fragmentation Act would reveal that when a suit is instituted in a Civil Court, the Court concerned has to consider if the suit involves any issue(s) which is/are required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with, such issues under the said Act. If it does, then after staying the suit the said issue(s) is to be referred to such competent authority for determination. Apparently, no such consideration had been made by the trial Court as also by the High Court.
A careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under ‘the Fragmentation Act’, without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff - the decision of the High Court on the validity of the sale transaction covered under the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant, in terms of the provisions under the Fragmentation Act (when that question was not legally available to be considered in the subject suit) and the virtual declaration of the said sale as void, are absolutely unsustainable. It is the product of erroneous assumption of jurisdiction and also erroneous and perverse appreciation of evidence.
The High Court has committed a serious error based on perverse appreciation of evidence, in setting aside the judgment and decree of the First Appellate Court decreeing the subject suit and in restoring the decree of dismissal of the suit of the trial Court.
Appeal allowed.
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2023 (5) TMI 1275 - ITAT MUMBAI
Income deemed to accrue or arise in India - PE in India - existence of a DAPE - whether Appellant has a business connection in India as per the provisions of section 9(1)(i) ? - scope of India-Ireland tax treaty - HELD THAT:- As issues raised by the assessee in the present assessment year are exactly similar to the issues decided by the Coordinate Bench in A.Y. 2015-162022 (11) TMI 31 - ITAT MUMBAI], we are inclined to follow the decision wherein as held there was no fixed place permanent establishment on the facts of this case.
As regards the existence of the dependent agency permanent establishment, that aspect of the matter, is wholly tax-neutral and does not, therefore, need our adjudication. Decided in favour of assessee.
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2023 (5) TMI 1274 - ITAT RAIPUR
Delayed payment of Employees Contribution to Employees Provided Fund/ESI - Intimation u/s 143(1) - AO held it as the assessee’s income u/s 36(1)(va) r.w.s 2(24)(x) while processing his return of income u/s.143(1) - HELD THAT:- The issue involved in the present appeal is squarely covered by the order of Kalpesh Synthetics (P) Ltd. Vs. DCIT [2022 (5) TMI 461 - ITAT MUMBAI] wherein held that when the due date under Explanation to Section 36(1)(va) is judicially held to be not decisive for determining the disallowance in the computation of total income, there is no good reason to proceed on the basis that the payments having been made after this due date is “indicative” of the disallowance of expenditure in question. While preparing the tax audit report, the auditor is expected to report the information as per the provisions of the Act, and the tax auditor has done that, but that information ceases to be relevant because, in terms of the law laid down by Hon’ble Courts, which binds all of us as much as the enacted legislation does, the said disallowance does not come into play when the payment is made well before the due date of filing the income tax return under section 139(1).
Thus reporting of payment beyond this due date in the tax audit report constituted “disallowance of expenditure indicated in the audit report but not taking into account in the computation of total income in the return” as is sine qua non for disallowance of Section 143(1)(a)(iv).
We thus respectfully follow the same and vacate the addition as summarily made by the A.O, CPC u/s.143(1)(a) - Decided in favour of assessee.
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2023 (5) TMI 1273 - MADHYA PRADESH HIGH COURT
Seeking grant of bail - defalcation of amount - Amicable settlement of disputes between parties - applicant has submitted that the involved amount of Rs. 68 lakhs being paid today only through demand draft to the complainant and the complainant has no objection if the bail application is allowed.
HELD THAT:- On perusal of the case diary as also the documents filed on record, taking note of the fact that the parties have amicably settled their dispute, this Court finds it expedient to allow the present bail application. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed.
The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs. 25,000/- with one solvent surety in the like amount to the satisfaction of the trial Court for his/her regular appearance before the trial Court during trial with a condition that he/she shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.
Application allowed.
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2023 (5) TMI 1272 - SUPREME COURT
Non-compliance of certain directions in certain districts - HELD THAT:- The fact that the directions in the case would apply to anticipatory bail cases was enunciated in the order dated 21.03.2023 and thus, there could not have been any confusion on this aspect - The States are directed to supply copy of standing orders within two weeks from today failing which their Home Secretaries will remain present in Court as nothing seems to work except the peremptory orders of this nature.
List on 08.08.2023.
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2023 (5) TMI 1271 - SC ORDER
Seeking grant of Bail - HELD THAT:- The appeal is allowed and the appellant is directed to be released on bail in connection with Case NO.01/LKZO/2018 dated 18.02.2018, lodged by the Enforcement Directorate, on the basis of F.I.R. No.0831 dated 19.06.2017 registered at Police Station Gomti Nagar, Lucknow, U.P., subject to the terms and conditions as imposed by the concerned Trial Court.
Bail application allowed.
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2023 (5) TMI 1270 - ITAT MUMBAI (LB)
Nature of land sold - Treatment to Gain on sale of land - assessee cannot cultivate the land or incapacitated to do so - agricultural land or "capital assets" u/s 2(14) - land as classified in the revenue records - difference of opinion among the Members of the Bench - third member appointment - AM decided the issue in favour of the assessee - As argued land is barren and devoid of any irrigation - HELD THAT:- Case of the land of the assessee satisfies the most of conditions laid down by the Hon’ble Supreme Court in Smt. Sarifabibi Mohammed Ibrahim vs. CIT[1993 (9) TMI 10 - SUPREME COURT] that major chunk of land (9.08 acres) in the land revenue records is classified as “Lagvadi Yogya Shetra” which means cultivable land and the land is admittedly subjected to payment of land revenue.The land has been recorded in the land revenue records as agricultural land and the same was never been put to any alternative use.
The land is ordinarily used for agricultural purposes and it is not the case of the department that it has ever been used or intended to be Zo ted Yor non-agricultural purposes. Since the land is situated in hill area and there was no direct source of irrigation, therefore, agriculture produce, under the circumstances, cannot be in proportionate to the land area. However, that fact cannot, in any manner, be said to affect the nature of the land being an ‘agricultural land’.
Lands in hilly areas are generally dependent upon rain waters for irrigation purposes. It is not the case of the Revenue that the assessee has ever applied to the concerned authorities for the change of land user.Though, it has been alleged that as per the revenue records for many years that no agricultural activity has been carried out at major chunk of the land, however, the assessee, in this respect, has explained that vegetables and other minor millets grown are not mentioned in the revenue records of the land situated in Raigad District.
Merely because of certain reason, whatever it may be, if an assessee cannot cultivate the land or incapacitated to do so, that will not change the nature of the land from agricultural to non-agricultural especially when there is no change of user of the land.
The land is not situated in a developed area. The physical characteristics surrender situations and use of the land in adjoining area as held by the CIT(A), indicate that the land was an agricultural land.
The land has not been developed by plotting an providing roads and other facilities. There was no previous sale of land for non-agricultural use.
The price of the land sold does not show that it was shown at a high price or that price was not proportionate to the price of the agricultural land in the area.The land has been specifically mentioned in the revenue record as cultivable land and there is no mention that the land is a barren land. The vacant or fallow land does not mean that it is a barren land.
There is no condition prescribed under the provisions of section 2(14(iii) of the Act that active agricultural activity should be there at the relevant time of sale of the land, rather, the only condition prescribed is that it must be classified as agricultural land.
Order of Third member- Land sold by the assessee being agricultural land not falling within the definition and scope of capital asset, cannot be subjected to capital gain tax. Therefore, agree with the view of the Id. AM.
In view of the majority opinion, we hold that the land sold by the assessee is an agricultural land and hence the gain arising therefrom cannot be subjected to Capital gains tax. Appeal filed by the Revenue is dismissed.
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