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TMI Blog2017 (1) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent by : Shri Madhao Vichore ORDER This appeal by the Revenue is directed against order of Learned CIT(Appeals)-II, Nagpur dated 01/04/2016 and pertains to assessment year 2009 10. The grounds of appeal read as under : 1. On the facts and circumstances of the case, the W. CIT(A) erred in holding that the gain out of sale of agricultural lands has wrongly been treated as adventure in nature of trade by the Id. AO and deleting the addition made of ₹ 43,50,000/-. 2. On the facts and in the circumstances of the case the Ld. CIT(A) erred in observing that the agriculture lands in question had been transferred to the assessee and he is now the owner of the agricultural lands and consequently possesses the right to sell it without appreciating that parting of possession on the basis of agreements to sell did not tantamount to parting of ownership which remained with the original owners. 3. On the facts and in the circumstances of the case the Ld. CIT(A) erred in observing that the assessee is an agriculturist who was engaged in agricultural activities in the said agricultural lands without appreciating that the land at Kirmiti was used only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced by the AO on Pg. 2 of the assessment order. On perusal of the said details it was noted by the AO that the assessee had received a consideration of ₹ 43,50,000/- in his capacity as a consenter to the two lands transactions and she therefore required the assessee to explain as to why the said amount should not be treated as his income. 4. It was explained by the assesseet that he had sold two agricultural lands during the year under consideration and in both the transactions, subsequent to the agreement to sale, possession of the properties was transferred to the assessee. It was explained that though the sale was made directly by the original owner to the sale party, since the assessee had taken possession of the properties, he was the de facto owner of the said properties and had executed the sale deed in his capacity as a consenter. It was a contention of the assessee that since he (along with co- owners) had taken possession of the properties, the lands stood transferred to the assessee. He further submitted that and since he was the owner of the said lands, and also since the said lands were rural agricultural land beyond 8 kms. from the municipal limits, no tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultural. Even during the year under consideration it is seen that the appellant has been carrying out Charai (grazing) activity in part of the said agricultural land and since no income has been earned from the said agricultural activity, the same has not been shown in the return of income. 6.2 Further as pointed out by the appellant, there is significant difference between the word 'Padit' (as mentioned in the 7/12 extracts) and the word 'Barren' (as used by the Ld. AD). The word barren means land that is physically unfertile while the word Padit means land that is capable for cultivation but which is lying uncultivated. Thus the conclusion of the Id. AO that the land is barren is erroneous and not borne out by the clear facts brought on record. The land is evidently agricultural in nature. During the year under consideration it has been used for grazing. It is also not disputed that the said land IS beyond 8 kms. from the municipal limits. 6.3 With regard to the Tumdi land, it is submitted by the appellant that the Id. AD has not commented about the nature of the land. The same. is therefore admittedly agricultural in nature and is also situated beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of any immovable property in part performance of a contract, then it amounts to transfer of capital asset. In the present case, the possession has been given to the appellant in the present year, contract has been entered into with the seller as per which price had been fixed and significant payment was also been made by the appellant and hence all the requirements of Section 2( 47)(v) of Income tax Act, 1961 as well as Section 53A of Transfer of Property Act are fulfilled and therefore, it has to be concluded that the property in question had been transferred to the appellant and. he is now the owner of the property and consequently possesses the right to sell it. Thus there is no merit in the contention of the Ld. AO and the appellant has not executed the sale deeds and that therefore the appellant is merely a consenter and that the appellant was not the owner of the said agricultural lands. 7.4 Thus since the said agricultural land stands transferred to the appellant, any surplus arising to the appellant on transfer of such agricultural land would be subject to capital gain if the same is situated within 8 kms. from the municipal limits and alternatively would be exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the agricultural lands has wrongly been treated as adventure in the nature of trade by the ld. AO and the addition made of ₹ 43,50,000/- in this respect is directed to be deleted. 8. As against the above order Revenue is in appeal before the ITAT 9. I have heard both the counsel and perused the records. I find that the Assessing Officer has drawn adverse inference on account of lack of appreciation of the facts. The Assessing Officer has relied upon the description in the 7/12 extracts to hold that the land was not agricultural. He has also drawn adverse inference on account of the agreement of sale executed by the assessee and the period for which the land was held by the assessee. The learned CIT(Appeals) has elaborately considered all the aspects of the Assessing Officer's adverse inference. His elaborate findings are cogent and fully sustainable. The reliance upon various case laws including that from the jurisdictional High Court in the case of CIT Vs Smy Debbie Alemao in 331 ITR 59 fully support his findings. Accordingly I do not find any infirmity in the same. Hence I uphold the order of Learned CIT(Appeals). 10. In the result this appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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