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TMI Blog2018 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... nted exemption of payment of capital gain. Hence, this is the case of finding on no evidence and it is perverse. As contended by the assessee that the entire extent of 301 cents does not belong to him. It is evident from the records produced by the assessee that the entire sale consideration was ₹ 15,30,00,000/- and the share of the assessee was ₹ 8,61,41,416/-. - Decided in favour of the Revenue - Mr. Justice Huluvadi G. Ramesh And Mr. Justice K. Kalyanasundaram For the Appellant : Mr. T. R. Senthil Kumar Senior Standing Counsel For the Respondent : Mr. K. Doraisami, Senior Counsel For Mr. M. P. Senthilkumar JUDGMENT HULUVADI G. RAMESH, J. And K.KALYANASUNDARAM, J. This Tax Case Appeal has been filed by the Revenue calling in question the correctness of the order passed by the Income Tax Appellate Tribunal, Madras 'B' Bench, Chennai, dated 05.12.2017 made in ITA No.1878/Mds/2016, by raising the following substantial questions of law:- (i) Whether the Appellate Tribunal is perverse by holding that the said land was an agricultural land under section 2(14)(iii) of the Income Tax Act? (ii) Whether mere payments of kisti will suffice to consider a land as agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased the land in the year 1998 for a total sale consideration of ₹ 7,76,788/, but sold the property by way of sale agreement to Vijay Shanthi Builders Ltd., for development of property as house sites and thereby he receivedRs.8,61,41,416/- towards sale consideration. Though the assessee had produced Chitta, Adangal and Kist for the year 2005, the assessee has not shown any agricultural income during the earlier years and also for the assessment year 2007-08 under the Income Tax Act or Wealth Tax Act. Moreover, the details of crops said to have been cultivated by the assessee has not been mentioned in the Adangal and the portion relating to the crops and extent have been left blank and therefore, those documents cannot be relied upon to determine the character of the land. 5. It is the further submission of the learned Senior Standing Counsel that though the land in dispute has been assessed to the land revenue as agricultural land under the State Revenue Law is certainly a relevant fact, but it is not conclusive. It is further argued that the Hon'ble Supreme Court in the case of Sarifabibi Mohmed Ibrahim Others Vs. Commissioner of Income Tax reported in 1993 (204) ITR 06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand; or (b) in any area within the distance, measures aerially,- (I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (ii) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (iii) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh 8. In the appeal, the issues that arise for consideration is whether the assessee had proved that the land sold was an agricultural land and it would not attract payment of capital gain tax and whether this Court can interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the vendors hereby agree that they will not revoke the Power of Attorney executed in respect of the properties in any circumstances and that the same is irrevocable since consideration as per the Agreement would have already been received by the Vendors. In spite of the above, in the event of that the vendors unilaterally or voluntarily revoke the Power of Attorney then the Vendors shall be liable to pay to the purchaser then prevailing market value of the schedule mentioned property together with compensation for improvements effected together with interest at the rate of15% per annum on such amounts against surrender /reconveyance of the schedule mentioned properties to the vendors with all improvements. 10. As stated above that the Assessing Officer and the Commissioner of Income Tax had come to the conclusion the land in question was not agricultural land and rejected Chitta and Adangal produced by the assessee. A perusal of the Chitta and Adangal annexed in the typed-set of paper furnished by the respondent would reveal that for the Fasali No.1415 (Corresponding year 2005) in the adangal, except mentioning the name of the assessee, survey number and extent, the other rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? (6) Whether the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such cesser and/or alternative user was of a permanent or temporary nature? (7) Whether the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled? Whether the owner meant or intended to use it for agricultural purposes? (8) Whether the land was situate in a developed area? Whether its physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agricultural? (9) Whether the land itself was developed by plotting and providing roads and other facilities? (10) Whether there were any previous sales of portions of the land for non-agricultural use? (11) Whether permission under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist? If so, whether the sale or intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uture owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of assets , but its actual condition and intended use which has to be seen for purposes of exemption from wealth tax. On the objects of the exemption seemed to be to encourage cultivation actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be agricultural land for the purses of earning an exemption under the Act. Entries in revenue records are, however, good prima-facie evidence. We do not think that all these considerations were kept in view by the taxing authorities deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and law laid down by this Court. 14. In the decisions relied on by the learned Senior Counsel for the respondent, this Court, on facts, came to the conclusion that the assessee had in fact established their case that they were carrying agriculture activities. Som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the finding is a manifestly unreasonable and unjust one in the context of the evidence on record. This judgment squarely applies to the case on hand. In the instant case, the High Court has rightly exercised its right and discharged its duty to reverse the error and removed the injustice done by the courts below. The High Courtis right in exercising its duty, rightly so in interfering with unreasonable and unjust findings by both the courts below. 23. On a careful perusal of the materials on record, it will be clear that both the courts below did not appreciate the evidence on record both oral and documentary and, therefore, the findings arrived at by the High Court, in our opinion, do not call for any interference under Article 136 of the Constitution and the civil appeal deserves to be dismissed. (ii) Bharatha Matha v. R. Vijaya Renganathan [2010 (3) CTC 654] 11. In Rajappa Hanamantha Ranoji v. MahadevChannabasappa [(2000) 6 SCC 120] this Court held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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