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TMI Blog2022 (7) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 48 - GUJARAT HIGH COURT] and has led down 13 test or factors which are required to be considered and upon consideration of which, the question whether the land is agricultural or not, has got to be decided or answered. We find that before the lower authorities, the assessee has not filed any evidence in support for justifying whether the land was situated beyond the 8 km from the outer limits of the municipal Corporation or satisfies the test laid down in the case of Sarifabibi (supra). As the question of distance of the land sold from the outer limit of the Municipal Corporation and other 13 test laid down in the case of the Sarifabibi (supra), which goes to the root of the question whether the land of the assessee is agricultural land, beyond the outer limit of the multiple Corporation, were not raised specifically by the lower authorities, therefore in the fact and circumstances of the case and in the interest of substantial justice, we feel it appropriate to restore this issue to the file of the Assessing Officer for deciding afresh - Appeal of the assessee is allowed for statistical purposes. - ITA No. 3363/MUM/2019 - - - Dated:- 29-4-2022 - SHRI OM PRAKASH KA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked the appellant to file details of agreement and working of capital gains. Perusal of details filed showed that the said immovable property is situated at village Erangal, Taluka Borivali, Mumbai. In the computation, the appellant claimed that it is agricultural land and was purchased on 24.06.1987 for Rs. 9,65,608/- and sold on 07.11.2012 for Rs. 1,85,00,000/-. The appellant filed valuation report of the plot No: CTS No. 35 done by The Sub-registrar Borivali No. 5, Mumbai Suburban district (Bandra). Relying on the said government rates as per the Mumbai suburban district, the AO concluded that the property have been sold at Rs. 1,60,00,000/-. A show cause notice was issued to the appellant asking to tax the difference in consideration as capital gains, which was responded by the appellant. Since the land in question is situated in area which comprised within the jurisdiction of Bombay Municipal Corporation, the AO has taxed the long term capital gains of Rs.1,30,91,195/-. 6.1 On the other hand, the appellant submitted that the appellant purchased agricultural land at Erangal Village, Madh Island, Taluka Borivali, Mumbai on 24.06.1987, but due to distance of 12.4km from M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and no land remained as agricultural land and the entire space has been converted into residential colony. The Mumbai Municipality has provided basic amenities to the residential properties. The claim of the appellant that it remains agricultural land is neither tenable nor acceptable. Further, except presenting academic discussion, the appellant has not produced any evidence in support of its claim that the land in question is still maintaining the status quo of an agricultural land, either during the assessment proceeding or during the appellate proceedings. In view of the same, I did not find any reason to interfere in the findings of the AO, who has correctly assessed the difference as LTCG in the hands of the appellant; hence Grounds No. 1, 2 and 3 are dismissed. 4. Aggrieved, the assessee is an appeal before the Tribunal raising the grounds as reproduced above. 5. Before us the Ld. counsel of the assessee filed two paperbooks containing pages 1to 132 and 1 to 34. Before us Ld. counsel of the assessee referred to page No. 121 of the paperbook, which is copy of Google Map showing distance of the Erangal Village from Malad (a sub urban area of Mumbai) as 12.4 kms. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and? If the permission was in respect of a portion 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 situated 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 nonagricultural use? 11. Whether permission under s. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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