ITO v. Ashok Shukla - Taxpublishers.in

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The Tax Publishers2013 TaxPub(DT) 0262 (Ind-Trib) : (2012) 139 ITD 0666 INCOME TAX ACT, 1961 --Capital gains--Capital asset Agricultural land--assessing officer disallowed the claim of assessee in respect of capital gain arising from sale of agricultural land observing that land was not cultivated by assessee himself and no agricultural activity was carried out on land and also the land was situated within 8 kms from municipal limit. *Held:* Was not justified as there was no requirement under the Income Tax Act that only self cultivated land will be treated as agricultural land, however, agricultural operation was done by his brother who was allowed as agricultural land, therefore, no different yardstick can be adopted in the case of another brother, being the land was part of the same chunk. Also assessing officer had not examined the documents produced by assessee as both inspector of department of income Tax and tehsildar had certified that the land was situated beyond 8 kms from municipal limit further the land was sold at substantial amount was not relevant to prove that it was non-agricultural land because it depends on so many factors and the purpose for which such land was sold was not a much importance. Income Tax Act, 1961 Section 2(14) In The ITAT, Indore Bench Joginder Singh, J.m., & R. C. Sharma, A.m. ITO v. Ashok Shukla IT Appeal No. 207(Ind.) of 2012 A.Y. 2008-09 31 August, 2012 Appellant by : Keshave Saxena Respondent by : S. S. Sheetal ORDER *Joginder Singh, J.M.* The Revenue is aggrieved by the impugned order dated 31-1-2012 broadly on the ground that on the facts and in the circumstances of the case, the learned first appellate authority erred in treating the land sold as agricultural land when the assessee failed to substantiate that any agricultural activity was carried out on the said land and further erred in holding that the land sold was beyond 8 kms from the municipal limit. 2. During hearing, we have heard Shri Keshave Saxena, learned Commissioner/ Departmental Representative and Shri S.S. Sheetal, learned Counsel for the assessee. The crux of arguments on behalf of the Revenue is identical to the ground raised by further submitting that firstly the assessee has to prove that any agricultural operation was done by the assessee as the assessee himself is not doing any agricultural operation being advocate. It was also pleaded that the Tehsildar is not a competent authority to issue a certificate regarding distance of land from the municipal limit. A plea was also raised that the land was sold to developer. Our attention as invited to various pages of the paper book. Reliance was placed on the decision in Arundhati Balkrishna v. CIT (1982) 138 ITR 245 (Guj) : 1982 TaxPub(DT) 672 (Guj-HC), CIT v. Smt. Sarifabibi Mohmed Ibrahim (1982) 136 ITR 621(Guj) : 1982 TaxPub(DT) 486 (Guj-HC), Kalpetta Estates Ltd v. CIT (1990) 185 ITR 318(K.qt) : 1990 TaxPub(DT) 776 (Ker-HC), CIT v. Gemini Pictures Circuit (P.) Ltd. (1996) 220 ITR 43 (SC): 1996 TaxPub(DT) 1040 (SC) and Fazalbhoy Investment Co. (P.) Ltd. v. CIT (1989) 176 ITR 523(Bom) : 1989 TaxPub(DT) 590 (Bom-HC). On the other hand, the learned Counsel for the assessee defended the impugned order by submitting that the impugned land was inherited by all the brothers and was also sold as a composite sale being composite land. It was explained that one of the brothers was carrying out agricultural operation and it is not necessary that every brother will tilt the land himself. A plea was also raised that the assessing officer as well as the Inspector of the Income Tax Department visited the land, the map was prepared by the Inspector himself. The learned counsel took us to various pages of the paper book through which he tried to explain that the land in question is situated beyond 9 kms from the municipal limit. Reliance was also placed upon the decision of the Tribunal in ITA No. 506/Ind/2010 along with the decision in CIT v. Smt. Debbie Alemao (2011) 331 ITR 59 (Bom) : 2011 TaxPub(DT) 464 (Bom-HC). SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2013 TaxPub(DT) 0262 (Ind-Trib) : (2012) 139 ITD 0666

INCOME TAX ACT, 1961

--Capital gains--Capital asset Agricultural land--assessing officer disallowed the claim of assessee in respect of capital gain arising from sale of agricultural land observing that land was not cultivated by assessee himself and no agricultural activity was carried out on land and also the land was situated within 8 kms from municipal limit. Held: Was not justified as there was no requirement under the Income Tax Act that only self cultivated land will be treated as agricultural land, however, agricultural operation was done by his brother who was allowed as agricultural land, therefore, no different yardstick can be adopted in the case of another brother, being the land was part of the same chunk. Also assessing officer had not examined the documents produced by assessee as both inspector of department of income Tax and tehsildar had certified that the land was situated beyond 8 kms from municipal limit further the land was sold at substantial amount was not relevant to prove that it was non-agricultural land because it depends on so many factors and the purpose for which such land was sold was not a much importance.

Income Tax Act, 1961 Section 2(14)

In The ITAT, Indore Bench

Joginder Singh, J.m., & R. C. Sharma, A.m.

ITO v. Ashok Shukla

IT Appeal No. 207(Ind.) of 2012

A.Y. 2008-09

31 August, 2012

Appellant by : Keshave Saxena

Respondent by : S. S. Sheetal

ORDER

Joginder Singh, J.M.

The Revenue is aggrieved by the impugned order dated 31-1-2012 broadly on the ground that on the facts and in the circumstances of the case, the learned first appellate authority erred in treating the land sold as agricultural land when the assessee failed to substantiate that any agricultural activity was carried out on the said land and further erred in holding that the land sold was beyond 8 kms from the municipal limit.

2. During hearing, we have heard Shri Keshave Saxena, learned Commissioner/ Departmental Representative and Shri S.S. Sheetal, learned Counsel for the assessee. The crux of arguments on behalf of the Revenue is identical to the ground raised by further submitting that firstly the assessee has to prove that any agricultural operation was done by the assessee as the assessee himself is not doing any agricultural operation being advocate. It was also pleaded that the Tehsildar is not a competent authority to issue a certificate regarding distance of land from the municipal limit. A plea was also raised that the land was sold to developer. Our attention as invited to various pages of the paper book. Reliance was placed on the decision in Arundhati Balkrishna v. CIT (1982) 138 ITR 245 (Guj) : 1982 TaxPub(DT) 672 (Guj-HC), CIT v. Smt. Sarifabibi Mohmed Ibrahim (1982) 136 ITR 621(Guj) : 1982 TaxPub(DT) 486 (Guj-HC), Kalpetta Estates Ltd v. CIT (1990) 185 ITR 318(K.qt) : 1990 TaxPub(DT) 776 (Ker-HC), CIT v. Gemini Pictures Circuit (P.) Ltd. (1996) 220 ITR 43 (SC): 1996 TaxPub(DT) 1040 (SC) and Fazalbhoy Investment Co. (P.) Ltd. v. CIT (1989) 176 ITR 523(Bom) : 1989 TaxPub(DT) 590 (Bom-HC). On the other hand, the learned Counsel for the assessee defended the impugned order by submitting that the impugned land was inherited by all the brothers and was also sold as a composite sale being composite land. It was explained that one of the brothers was carrying out agricultural operation and it is not necessary that every brother will tilt the land himself. A plea was also raised that the assessing officer as well as the Inspector of the Income Tax Department visited the land, the map was prepared by the Inspector himself. The learned counsel took us to various pages of the paper book through which he tried to explain that the land in question is situated beyond 9 kms from the municipal limit. Reliance was also placed upon the decision of the Tribunal in ITA No. 506/Ind/2010 along with the decision in CIT v. Smt. Debbie Alemao (2011) 331 ITR 59 (Bom) : 2011 TaxPub(DT) 464 (Bom-HC).