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TMI Blog2013 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-8-2013 - Shri N. S. Saini And Shri Vikas Awasthy,JJ. For the Petitioner : Shri Anirudh Rai, CIT-DR For the Respondent : Dr.Anita Sumanth, Advocate ORDER Per Vikas Awasthy, Judicial Member The appeal has been filed by the Revenue against the order of the Commissioner of Income Tax(Appeals)-VI, Chennai dated 13-12-2011 relevant to the Assessment Year (AY) 2007-08. 2. The assessee filed return of income for the AY. 2007-08 on 27-03-2008 declaring her income as ₹ 26,67,842/- and agricultural income as ₹ 24,850/-. The return was processed u/s. 143(1) of the Income Tax Act, 1961 (herein after referred to as 'the Act') on 06-02-2009 During the period relevant to the AY. 2007-08, the assessee had sold a piece of land measuring 2.14 acres falling within the revenue estate of Iyyappanthangal Panchayat of Sriperumbudur taluk, Kancheepuram District. The assessee had purchased the land on 19-10-1994. The assessee alleged the land to be agricultural in nature and hence treated the sale proceeds of the land as exempt from capital gains tax. The Assessing Officer made enquiries about the location, nature etc., of the land and came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The ld. DR pointed out that the Tahsildar of the area, where the land in question is situated after examining the Revenue records has certified that the land of the assessee was lying vacant during the four preceding years. The ld. DR further contended that the assessee had filed return of wealth for the same AY wherein the details of non-business assets owned by her were mentioned. In the list of a non- business assets which is re-produced in para 13.8 of the assessment order, the assessee has not mentioned about the land in question. Thus, it is evident that the assessee has herself admitted that the nature of land is non-agricultural. The ld. DR submitted that the nature of land cannot solely be based on the entries made in the Revenue records. Nature of land keeps on changing depending upon the usage and its utility. In support of his contentions, the ld. DR relied on the following decisions: i. Sarifabibi Mohmed Ibrahim Others Vs. CIT reported as 204 ITR 631 (SC) ii. CIT Vs. Benoy Kumar Sahas Roy reported as 32 ITR 466 (SC); iii. CWT Vs. Officer-in-charge (Court of Wards) reported as 105 ITR 133 (SC); iv. Fazalbhoy Investment Co. Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for categorizing the land as agricultural land. The ld. DR submitted that the Gujarat High Court in the case of CIT Vs. Siddharth J. Desai reported as 139 ITR 628 (Guj) has given detailed guidelines to determine the nature and character of the land. The ld. DR prayed for setting aside the impugned order of the CIT(Appeals). 7. On the other hand Dr. Anita Sumanth, Advocate representing the assessee supported the order of the CIT(Appeals). The ld. Counsel submitted that the land of the assessee in question was adjacent to the land of the husband of the assessee. Although they were not co-owners of the land, but they had purchased the land from same person from a contiguous parcel of land owned by the vendor. The case of the assessee is identical to that of the husband. The ld. Counsel for the assessee relied on the order of the Tribunal in ITA No. 1581/Mds/2010 passed in the case of husband of the assessee Shri P. Ashok Kumar. The ld. Counsel contended that in the grounds of appeal, the Revenue has nowhere stated that case of the assessee is distinguishable from the case of Shri P. Ashok Kumar, the husband of the assessee. The ld. AR referred to page Nos. 5 6 of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural income. The next point of distinction given by the ld. DR is with regard to payment of Kist for the Fasli year 1414, 1415 and 1416 on 13-01-2007. We are of the opinion that the delay in payment of Kist cannot be a point of distinction for taking a different view. The fourth point of distinction made by the ld. DR is with regard to care taker/cultivator of the land of the assessee. The ld. Counsel for the assessee has pointed that in the submissions made before the Assessing Officer it has been categorically stated that whatever income from agricultural operations were remitted to the assessee, were after meeting the expenditure of the care taker. The ld. Counsel has stated that the care taker of the land of the assessee is same, who was cultivating the land of the husband of the assessee. 9. We find that all the submissions made by the ld. DR have already been considered by the Tribunal in the case of the husband of the assessee. The co-ordinate bench of the Tribunal has dismissed the appeal of the Revenue in the case of Shri P. Ashok Kumar (supra) with the following observations: 7. We have considered the rival submissions and have perused the entire records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revenue Department. The assessee has paid kist of ₹ 400/- each in respect of land on 30.1.2007 regarding fasli years 1413, 1414, 1415 and 1416. It was brought on record that this land was being cultivated by one local person, namely Shri Murugan, but for assessment years 2005-06 and 2006-07, agricultural operations were carried out by him, he could not get food returns and that is why he did not admit any agricultural income in the returns filed. The report of the Tahsildar refers to non-cultivation of the land because an agricultural operation in a large scale was not carried out on this land. Hence, we hold that the land sold by the assessee is only agricultural land and not a capital asset. Therefore, no Long Term Capital Gain is attracted. Consequently, we confirm the order appealed against and dismiss the appeal of the Revenue . The ld. DR in our considered opinion has not been able to point out any glaring distinctive factor in the case, to enable us to take a different view from the view already taken by the Tribunal in the case of Shri P. Ashok Kumar (supra). The land in question is a part of contiguous parcel of land owned by the husband of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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