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TMI Blog2017 (12) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... question of fact, to be decided after a consideration of circumstances appearing for and against the assessee Certificate of the Village Officer showing the land as “Nilam” (paddy land) alone may not be sufficient for the crucial question is whether the land was actually used for agricultural purposes during the two years prior to the date of transfer. The mere categorisation of the land as ‘Nilam’ in the revenue records would not hence, suffice to raise a valid claim of exemption. In the instant case, the Tribunal has concluded that the subject land has to be treated as capital asset within the meaning of Section 2(14) of the Act. Ordinarily, the question whether a land is an agricultural land or not is a question of fact and the findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions of the Act regarding capital gain under Section 2(1A) stating that the appellant s agricultural land is situated in Kakkanad Village of Thrikkakara Panchayat, which is a rural area. Notifications issued by the CBDT under Section 2(14) of the Income Tax Act (the Act for brevity) does not include the area; which is the basis of the claim of exemption as an agricultural land. 2. Aggrieved by the assessment made, the appellant filed an appeal before the Commissioner of Income Tax (Appeals)-II, Kochi. The assessee s appeal was allowed and the claim for exemption was accepted relying on the decision of this Court in ITA No.1295/2009, wherein it was held that the agricultural land is exempted from capital gains unless it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of Section 2(14) of the Act. Consequential transfer of the said land would not raise capital gain chargeable to tax under Section 45 of the Act. The land is admittedly situated in Thrikkakara Panchayat, which is not a notified area and is more than 8 kms. away from Kochi Corporation. The earlier decision of the Division Bench of this Court in ITA No.1295/09 dated 21-11-2010 is binding on the Appellate Tribunal as it is in an identical case on facts and therefore the findings of the Tribunal needs to be upset. 7. Thrikkakara Panchayat of Ernakulam District was earlier a notified area for the purpose of Section 2(14) of the Act. But in 1993 when a revised notification was issued, the Panchayat was not included. The learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bibi Mohmed Ibrahim and others v. Commissioner of Income Tax, [(1993) 204 ITR 631 (SC)], it is held that the question whether a particular piece of land is agricultural or not is essentially a question of fact, to be decided after a consideration of circumstances appearing for and against the assessee. In the decision reported in Asha George v. Income Tax Officer, [(2013) 351 ITR 123 (Ker)], this Court held thus: The crucial question is whether the land was actually being used for agricultural purpose during the two years prior to the date of transfer. We do not think that we can overturn a finding on fact, at any rate, based on our reappreciating the material which was considered by the Tribunal which is the final fact finding autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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