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TMI Blog2021 (9) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... s court to rely on material which has been produced for the first time in the present proceedings, without the genuineness and authenticity of the documents being tested earlier. This aspect of the submissions of the ASG has weighed with this court. At the same time, the manner in which the case appears to have proceeded before the High Court creates a sense of disquiet. Was the appeal by the Revenue initially dismissed ? If so why was the appeal listed again before the Division Bench ? Was the original order recalled by the High Court after apprising parties and their counsel ? Were any reasons for recall recorded ? While we have flagged these issues, we are not venturing into the exercise of finding answers, on the state of the record as it stands the better course being to remand the proceedings for hearing before another Bench of the High Court. In the above conspectus of facts, and particularly having regard to the checkered history of the appeal which we have referred to above, we are of the view that the appropriate course of action would be to set aside the judgment of the High Court and to remand the proceedings for disposal afresh. We are inclined to pass an order of rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , uses the said land, will not determine, the character of the land sold in the hands of the assessee. When the facts in the assessee's case are examined in line with the provisions of Sec.2(14)(iii), it shows that the nearest Taluk being Chinglepet Taluk Kancheepuram District and the village Taiyur shows that a population of only 7609 and the distance from the Chinglepet is 23.5 kms and the distance from Kancheepuram is 64.1 kms. A perusal of the Chitta Adangal shows the names of the assessees and the Kist having been paid as agricultural land and the Village Administrative Officer certified as specifying both single crop and double crop. The assessee has placed such substantial evidences and this is not rebutted by the AO in respect of the nature of the land, as to whether it is agricultural or not? The AO has read into only the Sale Agreements and no other documents. Admittedly, the assessee is entitled to sell his land for the best possible price that can be generated, but if the nature of the land is agriculture, the same cannot be brought under the definition of capital asset for the purpose of levying long term capital gains. Further, what has been sold by the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court (supra) are relevant factors to be taken into consideration for deciding the nature of the land. However, the appellate Tribunal overlooking the above material factors and on the basis of Chitta and Adangal, granted exemption of payment of capital gain. Hence, this is the case of finding on no evidence and it is perverse. (emphasis supplied) Aggrieved by the order of the High Court, the assessee is in appeal. 7. After notice was issued on the Special Leave Petition on 29 April 2019, the Union of India has been represented by Ms Aishwarya Bhati, Additional Solicitor General. A counter affidavit has been filed by the Principal Commissioner of Income Tax 6 at Chennai. 8. Mr Arvind P Datar, learned senior counsel appearing on behalf of the appellants has principally urged submissions on the basis of a compilation of additional documents which has been filed in the present appeal. As we have noted earlier, the main issue is whether the land which had been sold by the assessee was agricultural land so as not to be a capital asset and falling within the exceptions contained in Section 2(14)(iii) of the Income Tax Act 1961. The contention of the assessee is that the issue as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to obtain the extracts from the Adangal register. The documents which have been relied upon in the application for permission to file additional documents have been described thus: (i) A copy of the Patta No.305 relating to the land owned by the Petitioner reflecting the nature of the land as Nanja (Wet irrigable); (ii) A copy of Extract of Adangal relating to Fasli years 1407 to 1415, (corresponding to English Calendar years 1997 to 2005) issued by Head Quarters Deputy Tahsildar dated 21.02.2020; (iii) A copy of Reply Letter by Public Information Officer, Office of Sub-Registrar, Thoriporur, bearing Serial No.20/2020 dated 14.02.2020; and (iv) A copy of Certificate issued by Village Administrative Officer dated 10.2.2007. 10. We have heard Ms Aishwarya Bhati, learned Additional Solicitor General in response to the above submissions. There is justification in the submission which has been urged on behalf of the Union of India by Ms Aishwarya Bhati that by its very nature, it would not be appropriate for this Court to look into the documents which have been produced in the application for permission to file additional documents, particularly in the absence of the High Court having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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