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TMI Blog2018 (2) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that assessee has not earned any income from the land. Whether any agricultural/ development activity was undertaken on the land was also not explained or examined. As seen from the record, there is a rectification deed dt. 30-04-2008, the contents of which are not available. The lands were not mutated in assessee name, what assessee has sold as GPA holder was only assessee’s right to property. Then, it can also become an ‘adventure in nature of trade’, if the intention is only for subsequent sale on profit. As these aspects are not examined, it is of the opinion that the AO and CIT(A) have erred in treating the same as sale of urban land - set aside the orders of AO and CIT(A) and restore the issue to the file of AO to examine afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of ₹ 30,80,000/- and the said lands are 35 Kms., away from Municipal limits and population of the village was less than 10,000. Even though assessee has not disclosed any agricultural income, the nature of lands it was claimed, are agricultural lands and so capital gains does not arise. AO rejected the contentions. 3. Aggrieved, assessee preferred an appeal before the Ld.CIT(A) and reiterated the contentions and relied on the judgment of Hon'ble Gujarat High Court in the case of CWT Vs. Shashiben [288 ITR 319] (Guj). Ld.CIT(A), however, rejected the contentions and upheld the order of AO, stating as under: 6. I have carefully considered the assessment order and submissions of the appellant. It is observed from the Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l operations and the capital gains cannot be treated as agricultural in source. Ld.DR, relied on the following case law: i. Smt. Sarifabibi Mohamed Ibrahim Vs. CIT [204 ITR 631] (SC); [70 Taxman 301] (SC); ii. Union of India Vs. S. Muthyam Reddy [106 Taxman 501] (SC); iii. Chemmancherry Estates Co Vs. ITO [28 SOT 18] (Chennai); iv. Income Tax Officer, IT-I(1), Chennai Vs. Aboobucker [67 taxmann.com 114] (Chennai Trib); v. G.M. Omer Khan Vs. Additional Commissioner of Income Tax [63 Taxman 533] (SC); vi. Gopal C Sharma Vs. Commissioner of Income Tax [209 ITR 946] (Bombay); [72 Taxman 353] (Bombay High Court); 6. In reply, Ld. Counsel filed written submission as under: Facts: The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and having no irrigation facilities and was situated in a developed area where industries were coming up and the assessee sold the land to cooperative housing society for construction of houses, and hence the relevant case law is not applicable to the assessee. 4) Income tax Officer, IT -1(1), Chennai vs Aboobucker reported in 67 taxmann.com 114 (Chennai - Trib): In the relevant case the land was situated in the developing area of Chennai and in midst of development activities being carried out by the builders in promoting housing/ information technology corridors and hence the relevant case law is not applicable to the assessee. 5) G M Omer Khan vs Additional Commissioner of Income Tax, 63 Taxmann 533 (SC) : In the relevant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. Whether any agricultural/ development activity was undertaken on the land was also not explained or examined. As seen from the record, there is a rectification deed dt. 30-04-2008, the contents of which are not available. In case the lands were not mutated in assessee name, what assessee has sold as GPA holder was only assessee s right to property. Then, it can also become an adventure in nature of trade , if the intention is only for subsequent sale on profit. As these aspects are not examined, I am of the opinion that the AO and CIT(A) have erred in treating the same as sale of urban land. In order to examine and arrive at the correct nature of transaction, I hereby set aside the orders of AO and CIT(A) and restore the issue to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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