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TMI Blog2021 (5) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... future by the buyer of the land from the assessee. To our understanding, the information for the prior and the future use of the land was necessary to arrive at the conclusion whether the land in dispute was an agricultural land within the meaning of the provisions of section 2(14). We are inclined to restore the issue to the file of the AO for fresh adjudication as per the provisions of law and in the light of the above stated discussion. Hence the ground of appeal of the assessee is allowed for the statistical purposes. - ITA No. 1301/AHD/2017 - - - Dated:- 9-4-2021 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Karan Shah, A.R For the Revenue : Ms Pooja Parekh, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals)-1, Ahmedabad, dated 07/03/2017 (in short Ld. CIT(A) ) arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2012-13. 2. The only issue r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question was agricultural land under the provision of section 2(14)(iii) of Act being situated beyond 8 km from the limit of the Municipal Corporation. The assessee in support of her claim filed a copy of certificate issued by the Talati along with revised computation of income. Accordingly the assessee contended that the transfer of property is exempted from the tax being agriculture land but due to bona fide mistake she paid tax on the same which was corrected in the revised computation of income. 5.2 The assessee also submitted that her brother Shri Alap Sombhai Patel also transferred the adjoining land bearing survey number 157, 158, 167 during the year. He also mistakenly offered short term capital gain on the same. But on realization of mistake committed by him, he revised the return of income which was accepted by the DCIT, circle 4(1)(1) while finalizing assessment under section 143(3) of the Act. The assessee also filed the copy of the assessment order in case of Shri Alap Sombhai Patel in support of her contention. 5.3 The learned CIT(A) forwarded the additional document furnished by the assessee to the AO for verification for his remand report. The AO in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the full value of consideration as per section 50C of the Act. The appellant has erred in calculating the STCG on the sale the impugned land. Initially, the appellant has not taken the argument that the land is beyond the 8 Kms of Municipal limits. At the time of appellate proceedings, it has taken the ground that it is beyond the 8 Kms of Municipal limits. The same has been sent to the A.O. to verify the same and A.O. has further confirmed in the Remand Report that information gathered from the Ahmedabad Urban Development Authority (AUDA), it is found that Gaam: Unali, Block No. 160, 161 and 141 is in the jurisdiction of Ahmedabad Urban Development Authority (AUDA) limit and Gaam: Unali falls under AUDA limit as per Copy of letter dated 02/02/2017 received from Ahmedabad Urban Development Authority (AUDA). The A.O. further observed that the lands are situated within 8 kms from the limits of AUDA. Since, as on the date of transfer of lands, the extended limits of AUDA has been notified by the Govt. of Gujarat, the distance from the extended limits of AUDA has to be considered to determine whether the particular land is situated within 8 kms such distance or not. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials available on record. The controversy that arises whether the land in dispute is an agricultural land and therefore the same is not liable to tax under the head capital gain. The term capital asset has been defined under the provisions of section 2(14) of the Act. 10.1 In the said definition, the agricultural land has been excluded from the meaning of capital asset provided under section 2(14) of the Act. The exclusion of agricultural land from the definition of capital asset is based upon the situation of the land in a particular area as provided therein. Before going to see the situation/location of the land, we have to judge whether the land in question is the agricultural land. To our mind this is the first hurdle that the assessee has to cross for proving that the land in dispute is the agricultural land and therefore not subject to tax being not a capital asset. 10.2 The term agricultural land has not been defined under the Act and therefore, in order to ascertain whether the land in question can be considered as agricultural land for the purpose of section 2(14) of the Act, the criteria laid down by the judicial precedents of Hon'ble High Courts and Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive factors to hold the land as agricultural land. 10.5 Further the Hon ble Bombay High court in case of Gopal C Sharma vs. CIT reported in 72 taxman 353, while deciding the similar issue observed that past used of land for cultivation alone is not conclusive as such future use of the land after transfer is also important. The relevant observation of the Hon ble court reads as under: The underlying object of the Act to exempt 'agricultural income' from income-tax is to encourage actual cultivation or de facto agricultural operations. Actual user of the land for agricultural purpose or absence thereof at the relevant time is undoubtedly one of the crucial tests for determination of the issue, as to whether the land in question is liable to be considered as agricultural land for the purpose of incometax. It is well-settled that the nature and character of land may undergo a change depending upon its situation, growth of locality, zone in which it is situate and its potentiality. The fact that the land is sold or transferred to a non-agriculturist for a non-agricultural purpose or that it is likely to be used for non-agricultural purpose soon after its transfer is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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