Income Tax Appellate Tribunal - Mumbai
Ratnaprabha E Sawant, Mumbai vs Department Of Income Tax on 26 March, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "D",
MUMBAI
BEFORE SHRI VIJAY PAL RAO, JM & SHRI RAJENDRA, AM
ITA No.6188/Mum/2011
(Asst.Year 2008-2009)
ACIT-23(1), R. No. 108 C-10, 1st Smt. Ratnaprabha E.Sawant
Floor, B.K.C., Bandra (E), Vs. C-2, Bilwa Kund B.K.C,
Mumbai-51. Bandra (E),
Mumbai.
PAN : BHFPS4084M
(Appellant) (Respondent)
Appellant by : Mrs. Rupinder Brar (CIT-DR)
Respondent by : Shri Rakesh Joshi
Date of Hearing : 13.03.2013 Date of Pronouncement : 26.03.2013
ORDER
PER: VIJAY PAL RAO (JM):
This appeal by the Revenue is directed against the order dated 20th June, 2011 of CIT(A) for Assessment Year 2008-2009 .
2. The Revenue has raised the following grounds in this appeal:-
"1. On the facts & in the circumstances of the case and in law, the Ld. CIT (A) erred in deleting the addition made by the Assessing Officer on account of long term capital gain without appreciating the fact that the land has been converted into non- agricultural land prior to its transfer by the assessee for A.Y. 2008-
09."
2. On the facts & in the circumstances of the case and in law, the Ld.CIT(A) erred in exempting the long term capital gain on sale of land u/.s 2(14) of the I.T.Act for A.Y. 2008-09."
3. The brief facts leading to the controversy are that the assessee was a joint owner having 50% ownership of the land situated at the village Sagartirht 2 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant Aravali, Taluka Vengurla, District Sindhudurg. The Assessee, along with her mother, during the previous year has sold the land in question to M/s Blackberry Realtors Pvt. Ltd. for a total consideration of Rs.18 Crores. The assessee received 50 % of consideration thereof amounting to Rs.9 Crores. The AO asked the assessee to submit the details of the sale of land along with necessary documentary evidences as well as documentary evident showing the land was being an asset belonging to the assessee in past as agriculture land.
3.1 In response the assessee submitted that the agriculture land in question was purchased by the father of the assessee in the year 1970 and after his death the assessee and her mother became the owners of the land in equal share. The AO noted that this land in question was sold vide sale deed dt. 6th November, 2007 after obtaining the no objection certificate from the S.D.O on 5.11.2007 for making the use of land for non agricultural land purpose.
3.2 The AO observed that on the date of sale the land should not be said to be an agricultural land and accordingly issued show cause notice dated 23th November, 2010 asking the assessee as to why the said land should not be treated as non-agricultural land and accordingly the gain arising from the said sale should be considered for the purpose of taxable capital gains. The assessee objected the proposed treatment of the land as non-agricultural land and thereby taxing the capital gain vide letter dated 6th December, 2010 and accordingly contended that the land was sold on 4th October, 2007, when the assessee and the purchaser enter into agreement to sale and not on 6th November, 2007, when the sale deed was executed. The assessee further contended that till date it is not converted into non agricultural land and still remains to be agricultural land. The provisions of section 63(1) of the Bombay Tenancy and Agricultural lands Act. 1948 read with Rule 36(1)(B) of the Bombay Tenancy and Agricultural Rules will apply only when the land is converted into non-
3 ITA No.6188/Mum/2011.Smt. Ratnaprabha E.Sawant agricultural land. The assessee emphasizes that at the time of the agreement on 4th October, 2007 the land remains to be agricultural land. In support of her contention, the assessee referred 7/12 extract of the land record and submitted that the land was agricultural land till it was sold on 4th October, 2007. Therefore, the gain arising out of the said transaction cannot be assessed to tax in view of the provisions of Section 2(14)(iii). The Assessing Officer did not accept the contention of the assessee and held that the land was sold by sale deed dated 6th November, 2007 as the same transaction concluded only when the sale deed was executed after obtaining the NOC from the SDO.
3.3 The AO noted that the land was not used for agricultural purpose in the past as the assessee has not brought on record any material to show that any time in past the assessee has carried out any agricultural activities on the said land. Accordingly, the AO held that the land in question cannot be categorized an agricultural land and will be treated as capital asset for the purpose of the Act and hence, the sum of Rs. 9 crores was assessed as long term capital gains.
3.4 On appeal the CIT(A) concurred with the view of the AO to the extent that the transaction of sale was concluded only on 6th November, 2007 when the sale deed was executed, however, the CIT(A) was of the view that taking permission for purchase of agricultural land for non-agricultural purpose did not change the character of the land, when the same was recorded as agricultural land, in the land record as per 7/12 extract . Accordingly, the CIT(A) has accepted the claim of the assessee and held that the land in question is remained as agricultural land, till the date of sale on 6th November, 2007 and accordingly exempt under Section 2 (14)(iii) of the Act and no capital gain is attracted.
4 ITA No.6188/Mum/2011.Smt. Ratnaprabha E.Sawant 4 Before us the Learned DR has submitted that the AO has given finding that the land was not cultivated and also the assesee has never carried out any activity on the said land. Therefore, the said land cannot be treated as an agricultural land. The Learned DR has pointed out that undisputedly the NOC from the S.D.O. under Section 63 of a Bombay Tenancy and Agriculture Land Act was obtained prior to the sale of land in question which shows that the use of the land was for the purpose of non agricultural land therefore, at the time of transfer of the land, it was no more an agricultural land. She has relied upon the order of the Assessing Officer as well as the decision of Hon'ble Supreme Court in the case of Smt. SARIFABIBI MOHMED IBRAHIM v. CIT (1993) 204 ITR 631(SC and in case of N. Bagavathy Ammal v. Commissioner of Income-tax reported in 259 ITR 678.
4.1. On the other hand the Learned AR of the assessee has submitted that NOC obtained from the SDO on 5th November, 2007 did not covert the land into non-agriculture land but it grants permission to the purchaser who is non agriculturist. He has referred, the NOC dt. 5. 11. 2007 and submitted that the permission for purchase granted to subject to the conditions prescribed therein, purchaser was required to take permissions for non agricultural use of the land. Thus, the Learned AR has contended that till the land is converted into non- agricultural land by the order of the Collector, the land remains as agricultural land and still it was shown as a an agricultural land in the land record. In support of his contention he has referred land records i.e., 7/12 extract and submitted that in the land record, land is still shown as an agriculture land. Learned AR has further contended that the transaction of sale and purchase was completed on 4th October, 2007 when the agreement to sale was entered into between the parties. The full stamp duty payable on the consideration was paid at the time of agreement; therefore, the agreement was an irrevocable agreement. Since, the NOC was taken after the agreement dt. 4.10.2007 5 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant therefore, on the date of agreement the land in question was agricultural land and therefore, the gain arising out from the sale of this land cannot be assessed to tax as the same is exempted. He has relied upon the decision of Hon'ble Jurisdiction in the High Court in the case of CIT Vs. Smt. DEBBIE ALEMAO 331 ITR 59 as well as the decision of Hon'ble Madras High Court in Case of M/s SRINIVASA NAICKER AND Ors. Vs. I.T.O. (2007) 292 I.T.R. 481.
5. We have considered the rival submissions as well as the relevant material on record. There is no dispute on the fact that the assessee required the land along with her mother by way of an affidavit on the death of the father of the assessee. The dispute is regarding the sale of 45 acre out of 22-28-62 Hectares of the total land for a consideration of Rs. 18 crores and share of assessee come to Rs. 9 crores. The assessee claimed the said land as an agricultural land and therefore, in view of the provisions of Section 2 (14) (iii) it is excluded from the definition of capital asset and therefore, the gain arising out of the same from the sale of the said land is exempted. The AO after examining the facts held as under:
(a) The said sale of land was effected by the assessee vide sale deed dated 6th November 2007 and the assessee's portion of consideration from the said sale was Rs. 9 crores.
(b) The land was not cultivable and also the assessee has never carried out any agricultural activity on the said land and thereby the said land could not have to be said as an agricultural land.
(c) the NOC from S.D.O., Sawantwadi issued prior to the Sale Deed allowing the usage of land for non agricultural purpose more so emphasizes that in any case the land transferred was not an agricultural land.
(d) Further as per definition capital asset u/s 2(14) of the Act has been excluded is an agricultural land. Thereby a land sold which cannot be characterized as agricultural land will be regarded as a capital asset for the purpose of the Act.
(e) By virtue of section 45 of the Act any income of gain arising from transfer of capital asset is chargeable to tax as Income from Capital Gains.6 ITA No.6188/Mum/2011.
Smt. Ratnaprabha E.Sawant
(f) Since, the assessee is owner of the said land for a period of more than 36 months prior to the date of transfer, the gain from transfer of said land is assessed as Long Term Capital Gains. There been no details available as to the purchase cost of the land the cost allowed as deduction from the capital gains is adopted at Rs. NIL. Accordingly a sum of Rs. 9 crores is assessed as Long Term Capital Gains Penalty u/s 271(1) (c) is initiated for furnishing inaccurate particulars of facts"..
5.1 The CIT (A)'s findings are based mainly on the ground that the land has been shown as agricultural land in the land record "7/12 extract". The question whether the land is an agricultural land or not is essentially a question of more of fact then law. In order to, determining the real nature of land, various factors are to be taken into consideration. The Hon'ble Supreme Court in case of Smt. SARIFABIBI MOHMED IBRAHIM and Ors. (Supra) has elaborately discussed and considered this issue by analyzing various decisions. While considering issue of real nature of the land whether agricultural or not the Hon'ble Supreme Court has taken note that in case of Begaumpet Palace 105 ITR 133, the Apex Court has evolved various factors / indicators applying which the question has to be answered. The 13 factors which was shown by the Hon'ble Supreme Court in case of Begumpet Palace", case was reproduced and referred in the case of Sarifabibi Mohmed Ibrahim Vs. CIT (S.C) as under:
"(1) Whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue?
(2) Whether the land was actually or ordinarily used for agricultural purpose at or about the relevant time.
(3) Whether such user of the land was for a long period or whether it was of a temporary character or by way of a stop-gap arrangement?
(4) Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land?
(5) Whether the permission under section 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land? If so, when and by whom (the vendor or the vendee)? Whether such permission was in respect of the whole or a portion of the land? If the 7 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant 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 into an alternative use.
Whether such cesser and/or alternative user was of a permanent or temporary nature?
(7) Whether the land, though entered in the 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 are? Whether its physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate 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 non-agricultural use?
(11) Whether permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist? If so, whether the sale or intended sale to such non-agriculturist was for non-agricultural or agricultural user?
(12) Whether the land was sold on yardage or on acreage basis ? (13) Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have even sold the land valuing it as a property yielding agricultural produce on the basis of its yield?
At the risk of repetition, we may mention that not all of these factors would be present or absent in any case and that in each case one or more of those factors may make appearance and that the ultimate decision will have to be reached on a balance consideration of the totality of circumstances."
5.2 As observed by the Hon'ble Supreme Court, the meaning of expression "agricultural land" was considered first time in the case of CIT V/s Raja Benoy Kumar Sahas Roy Kumar Sahas Roy (1957) 32 ITR 466. The Constitution Bench of Hon'ble Supreme Court has considered the meaning of expression 8 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant 'agricultural land' which has been reproduced by the Hon'ble Supre Court in the case of Sarifabibi Mohmed Ibrahim and Ors. (Supra):
"On an appeal, a Constitution Bench of this Court held that:
Inasmuch as agricultural land is exempted from the purview of the definition of the expression "assets", it is "impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given".
The idea behind exempting the agricultural land is to encourage cultivation of land and the agricultural operations. " In other words this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Full Bench of the Andhra Pradesh High Court". (b) What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose, It is not the mre potentiality, but its actual condition and intended user, which have to be seen for purposes of exemption. (emphasis * added). (c) "The person claiming an exemption of any property of his from the scope of his assets must satisfy the conditions of the exemption." (d) " The determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case." (e) The fact the land is assessed to land revenue as agricultural land under the State revenue law is certainly a relevant fact but it is not conclusive.
6. As it is clear that the Hon'ble Supreme Court held that the land is assessed to land revenue as an agricultural land, is not a conclusive fact and the question is to be decided by considering various factors including the land is used for cultivation and agricultural operations. Thus, the Hon'ble Court has observed that what is really required to be shown in the connection with an agricultural purposes of user and not mere possibility of user of land. The actual use and intended user have to be seen for the purpose of exemption. The Hon'ble Supreme Court has also considered the decision of the Hon'ble Jurisdiction in the case of CIT Vs. V.A Trivedi ITR 95 and taken into account the observations of the Hon'ble High Court which was discussed by the Hon'ble Supreme Court at page 641 as under.
9 ITA No.6188/Mum/2011.Smt. Ratnaprabha E.Sawant " The Bench observed that to ascertain the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the relevant date and further whether on the relevant date the land was intended to be put to use for agricultural purposes for a reasonable span of time in the future. Examining the facts of the case from the said point of view, the Bench held that the agreement entered into by the assessee with the housing society is the crucial circumstance, since it showed that the assessee agreed to sell the land to a housing society admittedly for utilization for non-agricultural purposes. The sale deeds were executed four months after the agreement of sale and even if any agricultural operations were carried on within the said span of four months-the Bench held -it was evidently in the nature of a stop-gap arrangement. On the date the land was sold, the Bench held, the land was no longer agricultural land which is evident from the fact that the assessee had obtained permission even in August, 1966, to convert the said land to non-agricultural purposes.
6.1 Principle lay down by the Hon'ble Jurisdiction in the case of V.A. Trivedi (Supra) for ascertaining the true character and nature of the land is that it must be seen whether it has been put to use of agricultural purposes for a reasonable span of time prior to relevant date and further, the land was intended to be put to use for agricultural purpose for a reasonable span of time in the future. Since, in the said case the assessee agreed to sell the land to a housing society, the Hon'ble High Court has observed that the sell was of utilization for non agricultural purposes and accordingly held that the land was no longer agricultural land when the assessee obtained permission to convert the said land to non of the agricultural land prior to sell. After analyzing the facts and various principles, the Hon, ble Supreme Court in the case of Sarifabibi Mohmed Ibrahim & Ors. (Supra) has held as under:
" Now, we may consider the various circumstances appearing for and against the appellant's case. The facts in their favour are: the land being registered as agricultural land in the revenue records; payment of land revenue in respect thereof till the year 1968-69; absence of any evidence that it was put to any non-agricultural use by the appellants; that the land was actually cultivated till and 10 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant including the agricultural year 1964-65; that there were agricultural lands abutting the said land and that the appellants had no other source of income except the income from the said land. As against the above facts, the facts appearing against their case are: the land was situated within the municipal limits-it was situated at a distance of one kilometer from the Surat railway station; the land was not being cultivated from the year 1965-66, until it was sold in 1969; the appellants had entered into an agreement with a housing co-operative society to sell the said land for avowed non-agricultural purposes, namely, construction of house; they had applied in June, 1968, and March, 1968, for permission to sell the said land for non-agricultural purposes under section 63 of the Bombay Tenancy and Agricultural Lands Act and obtained the same on April 22. 1969; soon after obtaining the said permission they executed sale deeds in the following month, i.e., in May, 1969; the land was sold at the rate of Rs. 23 per Sq. yard and the purchaser-society commenced construction operations within three days of the purchase. What is the inference that flows from a cumulative consideration of all the aforesaid contending facts? This question has to be answered keeping in mind the criteria evolved in the Begumpet Palace case (1976) 105 ITR 133 (SC) se5t out herein before. In our opinion, the entering into the agreement to sell the land for housing purposes, the applying and obtaining the permission to sell the land for non- agricultural purposes under section 63 of the Bombay Tenancy and Agricultural Lands Act and its s ale soon thereafter and the fact that the land was not cultivated for a period of four years prior to its sale coupled with its location, and the price at which it was sold, do outweigh the circumstances appearing in favour of the appellants' case. The aforesaid facts do establish that the land was not an agricultural land when it was sold. The appellants had no intention to bring it under cultivation at any time after 1965- 66-certainly not after they entered into the agreement to sell the same to a housing co-operative society. Though formal permission under section 65 of the Land Revenue Code was not obtained by the appellants, yet their intention is clear from the fact of their application for permission to sell it for a non-agricultural purpose under section 63 of the Bombay Tenancy and Agricultural Lands Act.
We are, therefore, of the opinion that the High Court was right in holding that the said land was not an agricultural land at the time of its sale and that the income arising from its sale was not exempt 11 ITA No.6188/Mum/2011. Smt. Ratnaprabha E.Sawant from capital gains tax. The appeals accordingly fail and are dismissed No costs."
6.2 The Hon'ble Supreme Court has taken note of the fact that the assessee enter into agreement to sell the land for housing purposes by applying and obtaining the permission to sell the land for non agricultural purpose under Section 63 of Bombay Tenancy and Agricultural Lands Act. and its sale soon thereafter, and further the land was not cultivated for a period of four years prior to it sale coupled with its location and prices established that the land was not an agricultural land when it was sold.
6.3 It is pertaining to note that in subsequent decision in case of Gopal C. Sharma Vs. CIT 209 ITR 946 the Hon'ble jurisdictional High Court by following decision of the Hon'ble Supreme Court in case of Safabibi Mohmed Ibrahim (Supra) has observed at page 956-957 as under:
" The expression " agricultural land" is not defined under the Income Tax Act, 1961. The question as to whether the land in question was liable to be considered as agricultural land for purposes of income-tax is liable to be decided with reference to the criteria laid down by judicial decisions of the Supreme Court and High Courts. 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 purposes or absence thereof at the relevant time is undoubtedly one one of the crucial tests for the determination of the issue. It is well settled that the nature and character of the land may undergo a change depending upon its situation, growth of the locality or zone in which it is situated and its potentiality. According to recent decisions of the Supreme Court, the fact that the land is sold or transferred to a non- agriculturist for a non-agricultural purposes or that it is likely to be used for non-agricultural purposes in the remote past or it continues to be assessed to land revenue on the footing of agricultural land is not decisive.
12 ITA No.6188/Mum/2011.Smt. Ratnaprabha E.Sawant 6.4 Thus, it is settled position of law that merely showing the land as agricultural, in the land record and use for agricultural purpose in remote past, is not a decisive factor. The Hon'ble High Court has decided the issue of agricultural land as under.
" In our opinion, the principles laid down by the Supreme Court in the case of Smt. Sarifabibi Mohamed Ibrahim V. CIT (1993) 204 ITR 631 and by this court in Trivedi's case (1988) 172 ITR 95 do emphasize the factor of non-user of the land for cultivation for a reasonable span of time prior to the date of transfer as a crucial factor for determination of the issue. Applying the ratio of the Supreme Court judgment in Sarifabibi's Case (1993) 204 ITR 631 to the facts of the case, we hold that the reference lands could not be considered as "agricultural lands" on the date of transfer. The Appellant Assistant Commissioner and the Tribunal were more than justified in highlighting the fact that the reference lands were situate in a heavy industrial zone and that the said lands were not in fact used or intended to be used for agricultural purposes at the relevant time since several years. The Appellate Assistant Commissioner also recorded a finding of fact based on relevant evidence that at least 10 acres of the land out of 25 acres was in fact used for non-agricultural purposes by Larsen and Toubro Limited since the year 1960, i.e., for seven years prior to the date of transfer of the land. If the relevant tests laid down by the Supreme Court in Sarifabibi's case (1988) 172 ITR 95 are to be applied to this case as they ought to be, it would become obvious that the finding of fact arrived at by the Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal cannot be characterized as perverse or unsupported by evidence or erroneous in law. It is not possible to accept the submission made by learned counsel for the assessee that the authrorities below did not apply the correct test or misdirected themselves in law or that the finding of fact arrived by the Tribunal was not supported by evidence.
In view of the above discussion we do not think it necessary to refer to the other authorities cited at the Bar. We uphold the finding of the Income-tax Appellate Tribunal to the effect that the reference lands were not agricultural lands."13 ITA No.6188/Mum/2011.
Smt. Ratnaprabha E.Sawant 6.5 The jurisdictional High Court has taken note of the fact that the future use of the land was non-agricultural purpose, therefore, the same cannot be characterized as agricultural land at the time of sell.
6.6 Turning to the facts of the case in hand, the Assessing Officer has recorded the facts in para 6.10 as under
"Further a glaring fact about the land sold is brought out here. The assessee has submitted a copy of extract of the land as on the date of sale and as on later date. In the 7/12 extract of the land as at the date of sale a fact noticed was that w.e.f. 29.03.69 the said land was leased to Mr. PRABHAKAR ZHILBA for a period of ten years for EXACAVATION SAND. Now a land which has a use i.e. excavation of sand can in no commonsense or practical parlance be said of having an agricultural use. This only points out a fact that the land was never cultivable and nor it could be said that it has ever used for any cultivation or agricultural production. Further the assessee has also brought nothing on record to show that anytime in the past the assessee has carried out any agricultural activity on the said land or even a fact as to whether the said land was cultivable or not. In view of the same it can never be said that the land was ever put to any agricultural use at least in last three decades.
6.7 This fact of using the land in question for excavation of sand has not been disputed or disproved by the assessee; therefore, it is brought out by the AO that the land was never used by the assessee for agriculture purpose or carried out any agricultural operations. Considering the fact that the land was never use by the assessee for agricultural purpose in past, the intended future use is undisputedly for non- agricultural purpose, as the land was sold to a builder/ developer and further, the permission was obtained for purchase of the land for non-agricultural purpose clearly established that the land was neither used for agricultural purpose in past by the assessee nor intended to be used in future for agricultural purpose.14 ITA No.6188/Mum/2011.
Smt. Ratnaprabha E.Sawant 6.8 Applying the test as laid down by the Hon'ble Supreme Court we have not hesitation to hold that the land in question does not fall under the exclusion Clause (iii) of Section 2(14) of Income Tax Act. There is no dispute that immediately after taking the permission under Section 63 of Bombay Tenancy and Agricultural Land Act, the land was sold by execution of sale deed dated 6th November, 2007. As regards the date of sale claimed by the assessee on 4th October, 2007, when the agreement to sale was entered into, the CIT (A) has given finding that the transaction of sale was completed only on 6th November 2007 when sale deed was executed. The assesee has not challenged the finding of the CIT(A). Even otherwise, the conditions as specified under Section (2) (47) (v) are not satisfied because the possession of the land was not handed over on 4th October, 2007 at the time of agreement of sale; therefore, it cannot be said that the transaction of sale and purchase was completed at the time of agreement to sale. The decision relied upon by the Learned AR are not applicable in the fact of the case, because the question of agricultural land is a question of fact and finding of question of fact of a different case cannot be applied in the case in hand. Even otherwise in the case of CIT Vs. Smt. Debbi Alemao the Hon'ble Jurisdiction of High Court has specifically observed that the finding of the Tribunal on the question of whether a land is an agricultural or non agricultural land is a question of fact and therefore, the finding on the question of fact recorded by Tribunal is based on appreciation of evidence and application of correct principle of law. The finding in the said case is based on the peculiar facts that till the date of sale the land was used for agricultural purpose. Similarly in the case of M.S. Srinivas Naicker & Ors. (Supra). The Hon'ble Madras High Court has given finding on the basis of fact that the agricultural operations were carried out on the land till date of sale.
Therefore, the decisions relied upon by the Learned AR not applicable on the facts of the case in hand.
15 ITA No.6188/Mum/2011.Smt. Ratnaprabha E.Sawant 6.9 In view of the above discussion and in the facts, circumstances of the case and by following the decisions of the Hon'ble Supreme Court in case of Sarifabibi Mohemd Ibrahim (supra), we decide the issue in favour of the revenue, and against the assessee. The impugned order of the CIT(A) is set aside, quo this issue and the order of the Assessing Officer is restored.
7 In the result, the appeal is revenue is allowed.
Order pronounced on this 26th day of March, 2013.
Sd/- Sd/-
( RAJENDRA ) ( VIJAY PAL RAO )
Accountant Member Judicial Member
Mumbai; Dated : 26th March, 2013.
Pramod
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A) - 22, Mumbai.
4. CIT concerned
5. DR, ITAT, Mumbai
6. Guard file.
BY ORDER,
//True Copy//
Asstt. Registrar
ITAT, Mumbai