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TMI Blog2001 (2) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided against the assessee. 3. In view of the submission of the learned counsel for the assessee, we would adjudicate on the admission of the additional ground later on, after our decision on the main grounds of appeal, assessee has also moved a petition for admission of additional evidence through which she has sought to adduce evidence to the effect that the publication of 1991 census was made only on 24-1-1993, i.e., after the first day of the relevant previous year. Other evidence were also sought to be produced as additional evidence as copies of pahanies and photographs of the house belonging to the petitioner and evidence for fair market value as on 1-4-1974. These evidences according to the petitioner could not be produced or were produced but were returned by assessing officer. It was argued by learned counsel that these evidences are material for the adjudication of the appeal and evidence regarding publication of census are nothing but matter of public record, to which assessee could not lay her hands during the proceedings conducted earlier. Regarding copies of pahanies which were submitted by learned counsel it is stated that these pahanies were shown to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the assessee without making the same available to the assessee. 7. At the time of hearing, learned counsel for the assessee drew our attention to page 2 of the assessment order to show that Income Tax Inspector was deputed by the assessing officer to make enquiries and furnished some report on 27-3-1995, which was never confronted to the assessee. It was further submitted by learned counsel that some certificate was obtained from Kapra Municipality, certifying population of the municipality, which was also not made available to the assessee. It was submitted further by learned counsel that assessment was made on 31-3-1995, meaning thereby that after the alleged enquiry by Inspector on 27-3-1996, assessment was framed 4 days thereafter, thus not giving proper opportunity of hearing. Our attention was drawn to page 38 of the paper book, which is letter dated 27-10-1995, written by assessees CA, who represented the case before learned Commissioner (Appeals) stating that report submitted by Income Tax Inspector and particulars gathered were not confronted to him nor were shown to him and to that extent, contention of assessing officer, contained in the assessment order was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dated 20-3-1995, which records that representative of the assessee was asked to furnish copies of sale deeds in respect of agricultural lands and the details of land sold and the case was adjourned to 23-3-1995. Thereafter, there is an order on 23-3-1995 made by assessing officer to Income Tax Inspector to enquire about certain factual aspects concerning the land sold and file report. On 27-3-1995, enquiry report was submitted by Inspector as per the noting made on the order-sheet entry. On 27-3-1995 only, representative of the assessee appeared and a show-cause notice was issued to him as to why capital gain be not charged to tax. There is no reference to the report received from Income Tax Inspector. Rather, order-sheet entry shows that the show-cause notice was given based on the enquiries caused to be made. The contents of enquiries and other factors such as who conducted the enquiries, were not mentioned in this noting. Thereafter, case was heard on day-to-day basis and finally assessment was framed on 31-3-1995. Therefore, it cannot be said that delay was attributable to the conduct of assessee. In fact report was sought by assessing officer only on 23-3-1995, which was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was agricultural land which were classified as agricultural land in the land revenue records. He further submitted that impugned land was purchased in the year 1968 and since then agricultural income derived from such land were being shown by the assessee and her family members in the income-tax returns submitted to the department and were assessed as such. He drew our attention to per pages 46 and 47 of the paper book to show the agricultural income derived from impugned land. Our attention was also drawn to the copies of pahanies and land revenue receipts filed, to show that impugned land was classified as agricultural land in revenue records and in fact agricultural operations were carried on, on such land. He drew our attention to p 30 of the paper book, which was a letter by assessee to assessing officer to show that impugned land was agricultural land. Therefore, he submitted that when there are direct evidences available in respect of the impugned land, there was no reason to treat such land as non-agricultural. Learned counsel rebutted the arguments of the assessing officer by contending that these lands were sold in 1991 whereas as per assessing officer, Inspector was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighted by learned Departmental Representative to impress upon that the veracity of revenue records itself is in doubt. He relied upon the cases relied upon by the assessing officer in p 9 of the assessment order and, therefore, he pleaded that the impugned land be held as nonagricultural land. 13. We have heard rival submissions and have gone through the orders passed by the authorities below and the pages of the paper book, to which our attention was drawn. The expression agricultural land has not been defined under the Income Tax Act, therefore, the meaning of this term has to be understood in ordinary parlance. There cannot be any fixed set of criteria which can be applied to determine as to whether the land is agricultural or not. Hosts of factors shall have to be taken into account cumulatively by the court to find out as to whether a land can be treated as agricultural land or not, These tests may be : (i) acquisition and assessment of land to land revenue; (ii) whether agricultural operations are carried on; (iii) intention of the owner; and (iv) character of the adjoining land. We find that revenue records classified the impugned land as agricultural land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee submitted that Kapra became municipality in 1987, as per the admission made by the assessing officer whereas impugned land was sold in the year 1991. Therefore, the census of Kapra municipality shall have to be seen as on the first day of the previous year. According to learned counsel, the figure of census in respect of Kapra municipality was published in February, 1993, and, therefore, such census cannot be taken as the basis to determine as to whether population was 10,000 or more as on the first day of the previous year. 16. On the other hand, learned Senior Departmental Representative contended that population of entire municipality shall have to be taken into account and not the population of the village in which the impugned land fell and for this, he relied upon the decision of the Honble Supreme Court, in the case G.M. Omerkhan v. CIT (1992) 196 ITR 269 (SC). 17. We have heard rival submissions and have gone through the orders. It is an admitted case that Kapra became municipality in 1987 and the first census after it became municipality, took place in 1991. Therefore, the position of its population will have to be seen with reference to the census of 1991. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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