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TMI Blog2013 (3) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... an individual having interest income and capital gains. The assessee has filed its return of income on 12.7.2006 declaring total income of ₹ 82,340/-. The case was selected for scrutiny and thereafter the assessment was framed u/s.143(3) by order dated 30/12/2008 and the total income was determined at ₹ 18,42,350/-. Aggrieved by the order of the AO, the assessee carried the matter before CIT(A) and CIT(A) vide his order dated 23/11/2009 allowed the appeal of the assessee. Aggrieved by the order of the CIT(A) the Revenue is now in appeal before us and has raised the following substantive ground: (1) The Ld. CIT(A) has erred in treating the land as Agriculture land and not a Capital Asset. 2.3. During the course of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, deleted the addition by holding as under:- 4.1. I have gone through the reasons given by the assessing officer for treating agriculture land as capital assets for the purpose of capital gain tax. I have also gone through following submission made by the assessee In this appeal main issue is whether Agriculture land admeasuring Hect 4-19.86 bearong S.No.216 and 218 situated at village Sagvi of Valsad Taluka sold to Agriculturist Jagdishbhai Ranchhodbhai Patel for an amount of ₹ 13,68,000/- is to be treated as capital assets and to be made to liable to capital gain tax ? Learned A.O. ignoring following facts treated sale of such land as sale of capital asset and levied capital gain which is not correct. According to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing copy of jurisdiction High Court of Gujarat s judgment in the case of CIT v/s. Madhabhai H.Patel (1994) 208 ITR 638 (Guj) wherein it is held that as land sold was shown as agriculture land is Revenue Record and when it is actually used for agricultural purpose and when no evidence is brought on record showing that any attempt was made by the assessee either to purchase or sell any other land in the part. At no point of time assessee applied for permission to use the land for non-agricultural purpose and therefore sell of land within the limit of Ahmedabad Municipal Corporation was held to be agricultural land. In the case of your appellant, though it is not significant yet it is worth to be noted that agricultural land is sold to agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tamp duty of ₹ 52,194/- on the deed of transfer. He thus supported the order of AO of considering the land as capital asset chargeable to tax. 5. On the other hand, the ld.AR for the assessee Mr.Rajesh Upadhyay submitted that the assessee has sold a land situated at village Segvi, Dist.Valsad and as per the census of 2001, the population was 2783 and the distance from Tahsil Centre was about 6 KMs. He placed on record the copy of certificate issued by Taluka Panchayat and its English translation placed at page Nos.28 29 of the paper- book. He furthersubmitted that in case the area is considered to be falling under Municipality, necessary notification is required to be issued by the Gujarat Government. He submitted that no such n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of per sq.yard/metre. The aforesaid facts could not be controverted by the Revenue by bringing any contrary material on record. 6.1. In the case of Madhabhai H.Patel vs. CIT (supra), the Hon ble Gujarat High Court has held as under:- What is required to be considered is: Was it agricultural land, when it was sold ? If the land is recorded as agricultural land in the revenue records and if till the date of its sale it is used and exploited as agricultural land, and if the owner of the land had not taken any step, which would indicate his intention to exploit the land thereafter as nonagricultural land, then such a piece of land will have to be regarded as agricultural even though it is included within the municipal limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decided to sell the land, it becomes clear that he wanted to sell the land as agricultural land. In the agreement it is in terms stated that the assessee was selling the land as agricultural land only and, therefore, was not going to sign any application or plan for a nonagricultural use of the said land. There is no material to show that the assessee had taken any part either in getting the plots sub-divided into sub-plots, or in getting the plans prepared and passed for nonagricultural use. All those steps were taken by the purchaser of the land and not by the assessee. Thus, the Tribunal, after considering all the relevant factors and also the decision of the Supreme Court has held that the land in question is an agricultural land. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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