9911796707
TMI Blog2011 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... these are non-agricultural lands. 3. The ld. CIT(A) has further erred in holding that these are agricultural land ignoring the decision of Kerala High Court 294 ITR 423 wherein in the Hon'ble High Court has held that the classification of agricultural land is on the basis of definition contained in IT Act, 1961, but not with reference to the tenure of agricultural land." 2.1 On the basis of the information collected by the Income-tax Officer, TDS-Ward-2(3), Thane regarding the payment of compensation on account of compulsory land acquisition, the AO proceeded under section 201(1) and 201(1A) of the Act. The AO noticed that as per the said information, the Special Land Acquisition Officer, Thane in short SLAO paid 80 per cent of the cost of the land to the 29 persons as compensation for the land acquired from them amounting to Rs. 60,66,01,426 during the financial year 2005-06. The compensation was Rs. 1 lakh or more in each case. The AO observed that the SLAO has not deducted the tax from the above payment as required under section 194LA of the Act. Hence a show-cause notice was issued to the SLAO asking him to explain as to why he should not be treated as ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority itself has given remark in the column of land available for cultivation as 'binseti'/PAD or OSHAT which means agriculturists were not cultivating the land. The ld. DR has referred the notification under Land Acquisition Act and submitted that in the acquisition notification the land under acquisition itself mentioned as "Binseti", PAD or OSHAD which clearly shows that the land under in question was not used for agricultural purposes, therefore, in view of the definition of the Agricultural Land under Income-tax Act, the land acquired under acquisition was not agricultural land. When no agricultural activities were carried out on the land then the land cannot be treated as agricultural land for the purpose of Income-tax Act. The learned DR has further contended that merely because the land under acquisition was recorded as agricultural land in the Revenue record cannot be treated as agricultural land for the purpose of Income-tax Act. He has referred and relied upon the decision of the Hon'ble Supreme Court in the case of CWT v. Officer In-charge (Court of Wards) [1976] 105 ITR 133 and submitted that the agricultural land must have the connection with the agricultural use o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of Rule 46A of the Income-tax Rules, 1962. The learned DR submitted that the CIT(A) has considered the fresh evidence in the form of 7/12 extract without giving opportunity to the AO to rebut the same. He has relied upon the orders of the AO. 2.4 On the other hand, the learned AR has submitted that all the lands except two lands listed at Sr. Nos. 54 and 55 of the list recorded in the body of the assessment order acquired by the revenue in the year under appeal were agricultural lands. The learned AR further submitted that the tehsildar Vasai in his certificate has certified that as on 8-8-2005 i.e., the date of acquisition all acquired lands were agricultural lands except two lands bearing survey No. 4(part), area 0.01.20H/A and survey No. 5, area 0.31.80 H/A appearing at Sr. Nos. 1 and 2 of the said certificates. In respect of these two non-agricultural lands the SLAO has correctly deducted tax at source and there is no dispute. 2.5 The learned AR submitted that the State Revenue Authorities have collected the "shet sera" or agricultural cess in respect of the agricultural lands from the holders of the lands in accordance with the procedure laid down under the Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishing the existence of agricultural income as defined in section 2(1A) and as more particularly clarified by the various decision of the higher judicial authorities be satisfied. The Assessing Officer has erroneously diverted to this area when he says in the order that the agricultural lands have not been put to use for raising agricultural produce. The terms 'agricultural income' and 'agricultural land' are not synonymous with each other but quite distinct and separate and have been assigned specific meaning under the various provisions of the IT Act. 2.9 He has relied upon the decision of the Hon'ble Supreme Court in CIT v. Taj Mahal Hotal [1971] 82 ITR 44 and the decision in the case of CGT v. N.S. Getti Chettiar [1971] 82 ITR 599 (SC). He has also relied upon the order of Ahmedabad Bench of this Tribunal in the case of Special Land Acquisition Officer [2010] 42 SOT 9 and submitted that the definition of the term 'agricultural' has given under section 194LA is distinguished from the term 'agricultural land' is given under section 2(A) of the Income-tax Act. The definition of agricultural land contained in section 2(14)(iii)(a)(b) cannot be borrowed for the purposes of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the learned DR in the case of Officer in-charge (court of wards) (supra) and Smt. Sarifabibi Mohmed Ibrahim's case (supra) are not applicable in the facts of the present case. In the first case the issue was for the asset for Wealth Tax Purpose and meaning of agricultural land under section 2(A)(1) and the Hon'ble Supreme Court observed that the exemption is connected with the user of the land for the purpose must be agricultural. Therefore, the use of the land was very much relevant for the purpose of seeking exemption from tax. In the second case, the Hon'ble Supreme Court has clearly laid down the various tests to be taken into account if the land in question was sought to be used for non-agricultural purposes or owners of the land intended to sell and transfer the land for non-agricultural purposes by taking the permission of non-agricultural use but it was for the purpose of capital gain. The Hon'ble Supreme Court has observed that if the land is situated within the MUNICIPAL Limit, not being cultivated for certain period before it was sold, sale of the land was for using by co-operative society after seeking non-agricultural purpose. Thus the sale of land was inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of compensation or the enhanced compensation or the consideration or the enhanced consideration on account of compulsory acquisition, under any law for the time being in force, of any immovable property (other than agricultural land), shall, at the time of payment of such sum in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to ten per cent of such sum as income-tax thereon: Provided that no deduction shall be made under this section where the amount of such payment or, as the case may be, the aggregate amount of such payments to a resident during the financial year does not exceed one hundred thousand rupees. Explanation.-For the purposes of this section,- (i) "agricultural land" means agricultural land in India including land situate in any area referred to in items (a) and (b) of sub-clause (iii) of clause (14) of section 2; (ii) "immovable property" means any land (other than agricultural land) or any building or part of a building.] 2.13 It is clear from the Explanation to section 194LA that the term 'agricultural land' as expressed in the provisions of section 194LA is entirely different and separate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax authority is concerned, we find that the decision relied upon by the learned DR are in respect of the order passed by the land Acquisition Court and the Hon'ble High Court has held that this question has to be decided by the Income-tax Authority and not by the Land Acquisition Authority. There is no quarrel on this point that when there is a dispute about the question of whether the land acquired is a agricultural land, the competent authority is the Income-tax authorities. However, in the case in hand, the AO has dealt with the question and the CIT(A) has already considered this question and came to the conclusion that the land in question acquired by the authority is agricultural land and therefore no tax was required to be deducted under section 194LA. Therefore, the question has been decided by the revenue authorities. Moreover, after considering the relevant provisions of the Act and particularly section 194LA, we find that the land in question is basically an agricultural land and there is no material either pointed out by the AO or brought before us to show that the land acquired was used for non-agricultural purposes by the owners of the land. The AO as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
