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land was acquired by KP Parmar, HUF, wherein part of the land was reserved for park. On 31.01.1985, plan showing surplus land out of Sr.No.1/2, 1/3 and ΒΌ of S.No.16 of Wanawadi, demarcated the area under DP Reservation for park and DP road was approved; copy of the said approved plan is placed at page 53 of the Paper Book-2. Under the revised DP Rules, which came into effect from 05.01.1987, the said plot of land was reserved for Dispensary and Maternity Home and also 60' wide DP road. The revised development plan was notified in Extraordinary Gazette on 05.01.1987. The assessee has pointed out that the plan showing reservation of DHM 11 land at Wanwadi was passed on 30.01.1991, copy of which is placed at Paper Book-2. The assessee acquired the reserved land from HUF on 03.06.1993; copy of the said agreement between the assessee and KC Parmar for transfer of land is placed at pages 15 to 22 of the Paper Book. Thereafter, again, there was an amendment proposed in the DC Rules, dated 30.09.1993 but the new DC Rules were passed on 03.07.1997; copy of which is placed at pages 33 to 35 of the Paper Book. Reference was made to earlier proposed DC Rules for which directions were issued on 08.07.1993 but the DC Rules were proposed on 30.09.1993 and certain modifications and partial modifications to the Regulations as enlisted in the Schedule were held to be necessary and were sanctioned to be made applicable with immediate effect. The earlier DC Rules dated 05.01.1987 were thus, modified under Appendix R-7, which dealt with Dispensary, Maternity Homes and hospital. It was proposed that the sites for Maternity Homes and Hospitals shall be allowed to be developed for the designated purposes by the owner/s or through Public Institutions registered under the Public Charitable Institutions Act. The modification was that (a) PMC may acquire, develop and maintain the amenity as reservation or (b) owner may be permitted to develop the amenity subject to his handing over to the M/s. Parmar Properties Pvt. Ltd.

Corporation, free of charge, of built up space / area, 15% of the total reserved area of Dispensary in non-congested areas, sectors (i) to (iv) and 25% of the total reserved area of Maternity Home or Hospital in sectors (ii) to (vi), as may be applicable. The owners were entitled to have full permissible FSI of the plot of permissible user of the plot without taking into account the area utilized for constructing the amenity for Maternity Home and Hospital. The copy of DC Rules is placed at pages 32 to 35 of the Paper Book-1. Under the earlier DC Rules i.e. position in 1987, the areas which were marked for Maternity Home and Dispensary reservation continued and development was allowed as per Note 7 i.e. the areas that provide with sites of Maternity Homes and Hospitals shall be allowed for development for the designated purposes by the owners or through Public Institutions. The said old DC Rules are placed at pages 11 to 14 of the Paper Book-1.

27. The case of the assessee before us is that since 05.01.1987 i.e. the operation of old DC Rules, the assessee was not permitted to develop the land which was reserved for the purpose of Maternity Home and the DP road. On the other hand, the case of Revenue here is that under the DC Rules, 1987 i.e. notification dated 05.01.1987, the assessee was ready to develop the said piece of land and hence, it was business asset acquired by the assessee in 1993. On the other hand, the assessee claims that only after revised DC Rules which were dated 30.07.1997, the assessee was allowed the change of user of land and could develop the plot of land after taking requisite permissions. In this regard, first permission taken by the assessee of the approval of layout which was passed by the PMC on 10.02.2000, copy of sanction of PMC for the layout plan is placed at page 55 of the Paper Book and the approved layout plan, under which the area is demarcated, is placed at page 56 of the Paper M/s. Parmar Properties Pvt. Ltd.

29. We find merit in the plea of assessee in this regard i.e. under the old DC Rules, there was an embargo for carrying out any kind of construction on the M/s. Parmar Properties Pvt. Ltd.

said land. First of all, the land was reserved for Maternity Home and DP road. Secondly, the construction, if any, had to be carried out by the owners or Public Charitable Institutions and the assessee did not fulfil either of the two conditions. The question which is to be addressed in the present appeal is when the assessee purchased the land in 1993, whether it was business asset purchased by the assessee. The first stand of the Revenue is that the investment was made in piece of land which was ready for development and since the assessee is developer, then whatever was acquired by the assessee was business asset. We have already referred to different events in relation to the said piece of land and permission to carry out the development was given only as per revised DC Rules, which were issued on 03.07.1997. Till the aforesaid date, there was an embargo on construction / development of piece of land which was reserved for Maternity Home and DP road. In view of the said embargo, the assessee was not in a position to develop the said land. Only after new DC Rules were issued, the assessee sought permission from the PMC to develop the same. The first step which was the approval of layout plan by the PMC on 10.02.2000 and thereafter, the approved building plan dated 25.10.2001 but the permission to build factually came vide agreement entered into between the PMC and the assessee dated 28.12.2001. Till the said agreement, under which terms were agreed upon for handing over 25% of the constructed area to the PMC, free of cost, the assessee could not have carried out any construction on the said project. Consequently, we find no merit in the stand of authorities below in holding that development rights in the piece of land which were acquired by the assessee in 1993 were its business assets. The second aspect which needs to be kept in mind is the NA order dated 28.02.2002, which gives permission for change in user of the agricultural land into non-agricultural purposes. Under the said order, not only the M/s. Parmar Properties Pvt. Ltd.