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TMI Blog2020 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the nature of the land is an agricultural land. Lands were transferred to non-agriculturists for non-agricultural purpose and this would also be one of the relevant factors to test the case of the assessee. The Tribunal relied on the decision in the case of M.S.Srinivasa Naicker [2007 (1) TMI 149 - MADRAS HIGH COURT ] the said Judgment could not have been applied to the case on hand because in the said decision on examining the facts and as admitted by the revenue, on the date of sale, agricultural operations were carried on in the lands, which is not so in the case of the assessee. Thus, for all the above reasons, we find that the Tribunal erred in interfering the order passed by the CIT[A] affirming the order of assessment dated 14.03.2014. - Decided in favour of the revenue X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and after considering all the aspects, the assessment was completed by order dated 14.03.2014 treating the land as 'non-agricultural land' and would come within the category of 'capital asset' under Section 2(14) of the Act, chargeable to tax under the head 'capital gains'. Aggrieved by such order, the assessee preferred appeal to Commissioner of Income Tax (Appeals)- 14, Chennai (CITA), who by order dated 26.04.2018 dismissed the assessee's appeal. Aggrieved by the same, the assessee preferred the appeal before the Tribunal, which was allowed by the impugned order, challenging the order passed by the Tribunal, assessee is before us, by way of this Appeal. 5. The Tribunal reversed the order passed by the CITA, who confirmed the order of assessment only on the ground that the lands were shown as agricultural lands in the revenue record during the relevant period and therefore, would not fall within the purview of the definition of 'capital asset' under the Act. Unfortunately, the Tribunal applied the wrong test and ignored the settled legal position, as held in the case of Smt.Sarifabibi Mohmed Ibrahim and others V. Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield ?" 6. The Hon'ble Supreme Court has also laid down as to how these factors are to be considered in each case and the ultimate decision will have to be reached on the balanced consideration of the totality of circumstances. 7. Of the 13 questions, the question Nos. 5 and 11 may not be relevant for the case on hand. The answer to the other questions are as hereunder:- (i) Yes. The land is classified as agricultural wet / dry land. (ii) No (iii) Stopgap arrangement. (iv) No (vi) No (vii) No (viii) Yes (ix) No (x) No (xii) Sold on acreage basis (xiii) No 8. The answers, which we have given to the above questions are after noting the factual details, as culled out by the assessing officer, after direction was issued under Section 263 of the Act by the CITA. 9. The assessing officer has framed the questionnaire and has referred to Question Nos.8,9,10,11,12,13 and 14 in the assessment order, unfortunately, the assessee did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion was formed by the Commissioner while issuing direction under Section 263 of the Act. The assessee was given opportunity to explain, which they fail to do. Thus, the initial onus though partially discharged by the assessee, when the same was put to challenge with relevant materials, the assessee could not explain, or in other words, failed to give any explanation. Therefore, onus on the revenue has been discharged and it shifted to the assessee, who failed to discharge the burden cast on them. Therefore, the decision cannot assist the assessee. 13. Apart from the above, reliance was also placed in the case of Principal Commissioner V. Mansi Finance Chennai Limited, reported in (2016) 388 ITR 0514 (Madras). In the said decision, the fact finding authority as well as the Tribunal held that there was sufficient evidence adduced by the assessee to prove that the subject lands have been put to agricultural operation before sale. 14. Under the said facts and circumstances, the revenue's appeal was dismissed. The fact situation in the case on hand is entirely different and there was no evidence placed before the assessing officer or before the CITA or before the Tribunal to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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