DCIT, CHENNAI v. Shri P.Ashok Kumar, CHENNAI

ITA 1581/CHNY/2010 | 2007-2008
Pronouncement Date: 20-01-2011 | Result: Dismissed

Appeal Details

RSA Number 158121714 RSA 2010
Assessee PAN AAFPK6994C
Bench Chennai
Appeal Number ITA 1581/CHNY/2010
Duration Of Justice 4 month(s)
Appellant DCIT, CHENNAI
Respondent Shri P.Ashok Kumar, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 20-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 20-01-2011
Date Of Final Hearing 19-01-2011
Next Hearing Date 19-01-2011
Assessment Year 2007-2008
Appeal Filed On 20-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH D : CHENNAI [BEFORE DR. O.K. NARAYANAN VICE-PRESIDENT AND SHRI HARI OM MARATHA JUDICIAL MEMBER] I.T.A NO.1581/MDS/2010 ASSESSMENT YEAR : 2007-08 THE DY. CIT BUSINESS CIRCLE I CHENNAI VS SHRI P. ASHOK KUMAR 25 CHARI STREET T. NAGAR CHENNAI 600 017 [PAN AAFPK6994C] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.E.B RENGARAJAN JR. STANDING COUNSEL RESPONDENT BY : DR. ANITA SUMANTH O R D E R PER HARI OM MARATHA JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2007-08 IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-VI CH ENNAI DATED 17.06.2010. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2007-08 ON 31.10.2007 ADMITTING A TOTAL INCOME OF ` 39 79 165/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE INCOME-TAX ACT 1961 ON 24.12.2009 AT A ITA 1581/10 :- 2 -: TOTAL INCOME OF ` 12 63 61 260/- WHICH INCLUDED LONG TERM CAPITAL GAINS OF ` 12 23 82 098/-. AN ADDITION HAS BEEN MADE UNDER TH E HEAD LONG TERM CAPITAL GAINS WHICH THE ASSESSEE HAD CL AIMED AS EXEMPT ON THE GROUND THAT THE GAINS HAD ARISEN ON SALE OF AGRICULTURAL LANDS WHICH IS NOT A CAPITAL ASSET AS DEFINED UNDER SECTI ON 2(14) OF THE ACT. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) WHO HAS FINALLY FOUND AFTER EXAMINING THE ENTIRE RECORDS I NCLUDING THE REVENUE RECORDS AND STATEMENTS OF VARIOUS PERSONS AND REPOR T OF TAHSILDAR/REVENUE OFFICER THAT THE LAND SOLD IS ONL Y AGRICULTURAL LAND. THE LD. CIT(A) ALSO CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER IN RESPECT OF FRESH DOCUMENTS AND WRITTEN SUBMISSIONS FILED BEFORE HIM FOR THE FIRST TIME. AFTER CONSIDERING T HE ENTIRE FACTS AND THE DOCUMENTS HE FINALLY CAME TO THE CONCLUSION THAT T HE LAND SOLD IN THIS CASE WAS ACTUALLY AGRICULTURAL LAND AND HENCE NO C APITAL GAIN IS CHARGEABLE THEREON. NOW THE REVENUE IS AGGRIEVED AND HAS FILED THIS APPEAL. 3. DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICE R NOTICED THAT THE ASSESSEE HAS CLAIMED EXEMPTION OF ` 12 32 84 470/- ON ACCOUNT OF GAINS ARISING ON THE SALE OF ASSET DUR ING THE YEAR. THE ASSESSING OFFICER HAS OBSERVED AS UNDER: AS PER A SALE DEED DATED 27.09.1994 THE ASSES SEE HAD PURCHASED 2.14 ACRES OF AGRICULTURAL LANDS FROM SRE E HARIKRISHNA BRICK WORKS CHENNAI FOR A TOTAL CONSIDERATION OF ` 8 10 000/-. AS ITA 1581/10 :- 3 -: PER SALE DEED DATED 24.01.2007 THE LAND WAS SOLD T O A COMPANY BY NAME ESTRA IT PARK PRIVATE LTD. FOR A TOTAL CON SIDERATION OF RS.12 42 00 000/-. IT IS MENTIONED IN THE SALE DEED THAT THE ASSESSEE IS SELLING THE PROPERTY AS IT AT PRESENT I S NOT FETCHING ANY INCOME AND IS NOT BEING USED FOR ANY PRODUCTIVE PURPOSE. THE LAND SOLD WAS IN SURVEY NOS.45/18 45/28 48/18 48/2 48/3 48/4 OF IYYAPPANTHANGAL VILLAGE SRIPERUMBUDHUR TAL UK. THE ISSUES RELEVANT TO THE CLAIM THAT THE GAIN S ARISING ON THE SALE OF THE ABOVE PROPERTY ARE EXEMPT FROM TAX AS T HE ASSET SOLD WAS AGRICULTURAL LAND HAVE BEEN EXAMINED. AS PER S ECTION 45 OF THE L T.ACT ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL B E DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSF ER TOOK PLACE AND THE INCOME IS ASSESSABLE UNDER THE HEAD CAPITAL GAINS. SECTION 2(14) OF THE INCOME TAX ACT 1961 DEFINES 'CAPITAL ASSET' AS UNDER:- 'CAPITAL ASSET' MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION BUT DOES NOT INCLUDE- (I) ANY STOCK-IN-TRADE CONSUMABLE STORES OR RAW MATERIALS HELD FOR THE PURPOSES OF HIS BUSINESS OR PROFESSION; (II) PERSONAL EFFECTS THAT IS TO SAY MOVABLE PROPERTY (INCLUDING WEARING APPAREL AND FURNITURE) HELD FOR PERSONAL USE BY THE ASSESSEE OR ANY MEMBER OF HIS FAMILY DEPENDENT ON HIM (III) AGRICULTURAL LAND IN INDIA NOT BEING LAND S ITUATE (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURISDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY MUNICIPAL CORPORATION NOTIFIED AREA COMMITTEE TOWN AREA COMMITTEE TOWN COMMITTEE OR BY ANY OTHER NAME) OR A CANTONMENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; OR (B) IN ANY AREA WITHIN SUCH DISTANCE NOT BEING MORE THAN EIGHT KILOMETERS FROM THE LOCAL LIMITS OF ANY MUNICIPALITY HAVING REGARD TO THE ITA 1581/10 :- 4 -: EXTENT OF AND SCOPE FOR URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSIDERATIONS SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFICIAL GAZETTE. AGRICULTURAL LAND IS NOT DEFINED IN THE INC OME-TAX ACT 1961. HOWEVER THERE HAVE BEEN SEVERAL JUDICI AL DECISIONS WHICH GIVE GUIDELINES TO DECIDE WHETHER A PARTICULAR LAND IS AGRICULTURAL LAND OR NOT. ONCE IT IS THUS FOUND THAT THE LAND WHICH IS SOLD IS AGRICULTURAL L AND BASED ON THESE GUIDELINES THERE CAN BE NO DOUBT TH AT THE PROFITS OR GAINS ARISING FROM SUCH SALE IS EXEM PT FROM CAPITAL GAINS TAX. THE BASIC CONDITION TO DEC IDE WHETHER A PARTICULAR LAND HAS BEEN AGRICULTURAL LAN D IS THAT THE LAND HAS BEEN ACTUALLY SUBJECTED TO AGRICU LTURAL OPERATIONS FOR A REASONABLE SPAN OF TIME BEFORE THE TRANSFER/SALE. THE CHARACTER OF THE LAND IS TO BE JUDGED ON ITS PRESENT CONNECTION WITH AN AGRICULTURAL PURP OSE AND USER. ENQUIRIES WERE ACCORDINGLY MADE FROM THI S ANGLE. THE TAHZILDAR SRIPERUMBUDUR TALUK WITHIN WHOSE JURISDICTION THE LAND IS SITUATED HAS FURNIS HED THE FOLLOWING DETAILS IN RESPECT OF THE LANDS IN SURVE Y NOS.45/1B 45/2B 48/1B 48/2 48/3 48/4: (A) THE ABOVE SAID LANDS ARE SITUATED IN IYYAPPANTHANGAL VILLAGE PANCHAYAT; (B) YES. THESE LANDS ARE AGRICULTURAL LANDS. (C) DURING THE FINANCIAL YEARS 2003 TO 2006 THERE IS NO CULTIVATION CARRIED OUT ON THESE LANDS AS PER THE LAND RECORDS; (D) THERE IS NO AGRICULTURAL OPERATION CARRIED OUT IN THE ABOVE SAID LANDS DURING THE ABOVE PERIOD; (E) THE ADANGAL COPIES FOR THE ABOVE MENTIONED SURVEY NOS. ACCORDING TO THE FASLI YEARS; AS PER REVENUE RECORDS EVEN THOUGH IT IS AGRICULTURAL LAND THERE IS NO CULTIVATION. THE ADANGAL EXTRACTS OBTAINED FROM THE TAHZILDAR SHOW THE FOLLOWING REMARKS AGAINST THE CROPS RAISED IN THE LAND OWNED BY THE ASSESSEE: ITA 1581/10 :- 5 -: FASLI YEAR 1413 VACANT 1414 VACANT 1415 HOUSING PLOT 1416 VACANT IT WAS THUS CLEAR THAT THE LAND SOLD BY THE ASSESSE E DURING THE YEAR ENDED 31.3.2007 WERE NOT PUT TO USE AS AGRICULTURAL LAND AT LEASE FOR THE FOUR YEARS P RIOR TO THE YEAR OF TRANSFER. AS THE ASSESSEE HAD NOT FURNISHED ANY EVIDENCE TO PROVE THAT THE LAND SOLD WAS AGRICULTURAL LAND AND THE TAHZILDAR HAD CERTIFIED THAT THE LAND IN QUESTI ON WERE REMAINING VACANT DURING THE ABOVE PERIOD ASSESSEE WAS ASKED BY THE ASSESSING OFFICER TO FURNISH HIS EXPLANATION. 4. BEFORE THE LD. CIT(A) THE ASSESSEES AR FILED CERT AIN FRESH DOCUMENTS AND THE DETAILED WRITTEN SUBMISSIONS. AF TER CONSIDERING THE RIVAL STAND THE LD. CIT(A) HAS FINALLY HELD THAT T HE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND AND NOT A CAPITAL ASSET. SO HE HAS ORDERED TO DELETE THE IMPUGNED ADDITION. THE ONLY ISSUE INVOLVED IS REGARDING THE CHARACTER OF THE PIECE OF LAND SOLD B Y THE ASSESSEE. THE ASSESSEE TREATS IT AS AN AGRICULTURAL LAND AS AGA INST HELD BY THE ASSESSING OFFICER AS A CAPITAL ASSET. AT THE VER Y OUTSET WE MAY MENTION THAT THOUGH THE DEFINITION OF AGRICULTURAL LAND HAS NOT BEEN GIVEN IN THE ACT BUT THE DEFINITION OF CAPITAL AS SET GIVEN IN SECTION 2(14) EXPRESSLY AND EXPLICITLY EXCLUDES AN AGRICUL TURAL LAND IN INDIA. IN SUCH CASE THERE IS NO REQUIREMENT THAT THE LAND SHOULD BE UNDER CULTIVATION AT THE TIME OF THE SALE. FEW TESTS AS LAID DOWN BY THE ITA 1581/10 :- 6 -: HON'BLE COURTS TO DETERMINE WHETHER THE LAND IS AGR ICULTURAL OR NOT ARE AS UNDER: (I) WHETH E R THE LAND W AS CLASSIFIED IN THE REVENUE RECORDS A S A G RICULTUR A L A ND WHETHER IT WAS SUBJECT TO THE PA Y MENT OF LAND REVENUE ; (II) WHETHER THE LAND WAS ACTUALLY OR ORDINARILY USED FOR AGRICULTURAL PURPOSES AT OR ABOUT THE RELEVANT TIME; (III) WHETHER SUCH USER OF THE LAND WAS FOR A LONG PERIOD OR WHETHER IT W AS O F A TEMPORAR Y CHARACTER OR B Y AN Y STOPGAP ARRANGEMENT ; (IV) WHETHER THE INCOME DERIVED FROM THE AGRICULTURAL OPERATION S BEAR A N Y RATIONAL PROPORTION TO THE INVESTMENT MADE IN PURCHASING THE LAND ; (V) WHETHER THE PERMISSION UNDER SECTION 65 OF BOMBA Y LAND RE V ENU E C O D WAS OBTAINED FOR THE NON AGRICULTURAL USE OF THE LAND AND IF SO WHEN AND B Y W HO [VENDOR OR VENDEE] ; (VI) WHETHER THE LAND ON THE RELEVANT DATE HAD CEASED TO B E PUT T O A G R IC ULTU RAL USE ; IF S O W HETHER IT W AS PUT TO AN ALTERNATI V E USE ; WHETHER SUCH C ESSE R W A S OF A PERMANENT OR T E MPORAR Y NATURE ; (VII) WHETHER THE LAND THOUGH ENTERED IN THE REVENUE RECORDS HAD NE V ER B EE N ACTUALLY USED FOR AGRICULTURE ; WHETHER THE OWNER MEAN OR INTENDED TO USE IT FO R AGRICULTURAL PURPOSES; (VIII) WHETHER THE LAND WAS SITUATED IN A DEVELOPED AR E A ; WHETHER IT S PH YS ICAL CHARACTERISTICS SURROUNDING SITUATION AND USE OF THE LAND IN THE AD J OININ G AR EA WERE SUCH AS WOULD INDICATE THAT THE LAND WAS AGRICULTURAL ; (IX) WHETHER THE LAND ITSELF WAS DE V ELOPED BY PLOTTING AND PROVIDING RO A D S AND OTHER FACILITIES ; (X) WHETHER THERE WERE ANY PREVIOUS SALE OF PORTIONS OF THE LAND S FOR NON AGRICULTURAL USE ; [PORTIONS OF ASSESSEES LANDS]. (XI) WHETHER PERMISSION UNDER SECTION 63 OF BOMBAY TENAN CY & AGRICULTUR A L LANDS ACT WAS OBTAINED BECAUSE THE SALE WAS TO A NON-AGRICULTURE ; ITA 1581/10 :- 7 -: (XII) WHETHER THE LAND WAS SOLD ON YARDAGE OR ACREAGE BAS IS . (XIII) WHETHER AN AGRICULTURIST WOULD PURCHASE THE LAND AT THE PRICE A T W HICH IT I S P ROPOSED TO BE SOLD. 5. THUS IT BECOMES CLEAR THAT WHETHER A LAND IS AGRIC ULTURAL LAND OR NOT IS ESSENTIALLY A QUESTION OF FACT WHICH IS TO BE ANSWERED IN EACH CASE HAVING REGARD TO THE FACTS AND THE CIRCUMSTANC ES OF A GIVEN CASE. AFTER EXAMINING THE CUMULATIVE EFFECT OF ALL THE AB OVE MENTIONED FACTS WE CAN DEFINITELY CAME TO A CONCLUSIVE DECISION THA T THE LAND SOLD IN THIS CASE BY THE ASSESSEE IS DEFINITELY AN AGRICUL TURAL LAND AND NOT A CAPITAL ASSET. THE REMAND REPORT CALLED BY THE L D. CIT(A) FROM THE ASSESSING OFFICER IN RELATION TO FRESH EVIDENCE AND WRITTEN SUBMISSION WAS SENT VIDE HER LETTER DATED 06.04.2010 WHICH RE ADS AS UNDER: 'THE POINT RAISED BY THE ASSESSEE THAT THE LANDS SO LD BY HIM ARE SITUATED BEYOND 8 KM FROM THE OUTER LIMIT OF A NOT IFIED MUNICIPALITY AND THAT THEREFORE THE GAINS ON SALE OF THE LANDS ARE NOT TO BE TREATED AS CAPITAL GAINS IN TERMS OF SECTION 45 OF THE INCOME- TAX ACT 1961. IN SUPPORT OF THIS CLAIM/ THE ASSESSEE HAS FILED A CERTIFICATE FROM THE VILLAGE ADMINISTRA TIVE OFFICER OF AYYAPPANTHANGAL VILLAGE WITHIN WHOSE JURISDICTION T HE IMPUGNED LANDS SITUATE. ENQUIRIES HAVE BEEN MADE WITH THE VILLAGE ADMINISTR ATIVE OFFICER AND A STATEMENT HAS BEEN RECORDED FROM HIM. IT IS CONFIRMED BY THE VILLAGE ADMINISTRATIVE OFFICER THA T THE LANDS IN QUESTION ARE BEYOND 8 KM FROM THE OUTER LIMITS OF ST . THOMAS I MOUNT CANTONMENT BOARD AND MORE THAN 10 KM FROM TH E OUTER LIMIT OF ALANDUR MUNICIPALITY . TO A QUESTION AS TO KNOW HE HAD ISSUED A CERTIFICATE ABOUT THE LOCATIONS OF THE LAN D AND THE DISTANCE BETWEEN THE SAID LAND AND THE NEAREST NOTI FIED MUN I C I PALITY HE HAS DEPOSED THAT HE HAD PHYSICALLY MEASURED THE DISTANCE FROM THE POINT AT WHICH THE OUTER LIMIT OF THE ST. THOMAS MOUNT CANTONMENT BOARD ENDS AND UPTO THE POINT AT WHICH THE LANDS BELONGING TO THE ABOVE MENTIONED AS SESSEE SITUATE. ITA 1581/10 :- 8 -: THIS ENQUIRY WAS FOLLOWED UP BY A SPOT ENQUIRY BY T HE INSPECTOR OF INCOME-TA X ATTACHED TO THIS CIRCLE. THE INSPECTOR HAD VISITED THE AREA ACCOMPANIED BY THE VILLAGE ADM I NISTRATIVE OFFICER AND HAS GIVEN A REPORT. IN HIS REPORT THE INSPECTOR HAS STATED T HAT THE LANDS IN QUESTION ARE LOCATED ABOUT 8.5 KM. FROM THE OUTER LIMIT OF THE ST THOMAS MOUNT CANTONMENT B OARD BY ROAD' 6. THERE ARE GOOD REASONS GIVEN BY THE LD.AR FOR EXPLA INING THAT THE LAND WAS NOT RECENTLY USED FOR CULTIVATION. IN OUR CONSIDERED OPINION THE NON-CULTIVATION OF A PIECE OF LAND DOE S NOT LOOSE ITS CHARACTER OF AGRICULTURAL LAND UNLESS THE USER OF T HE LAND HAS BEEN SPECIFICALLY GOT CHANGED BEFORE SUCH SALE. LIKEWIS E THE FUTURE USE OF THIS LAND WILL NOT DISENTITLE THE ASSESSEE FROM THE BENEFIT AS WAS AVAILABLE TO HIM AT THE TIME OF THE SALE. THEREFOR E WE REAFFIRM THAT THE CUMULATIVE EFFECT OF HE ABOVE MENTIONED FACTS A ND CIRCUMSTANCES IS THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND AT THE TIME OF SALE AND THE ASSESSEE IS ENTITLED TO LONG TERM CAPITAL G AINS THEREON. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE P ERUSED THE ENTIRE RECORDS. THE ASSESSEE HAD PURCHASED 2.14 AC RES OF AGRICULTURAL LAND FROM ONE SHREE HARIKRISHNA BRICK WORKS CHENNA I VIDE SALE DEED DATED 27.9.1994 FOR A TOTAL CONSIDERATION OF ` 8 10 000/-. THIS LAND WAS SUBSEQUENTLY SOLD TO A COMPANY BY THE NAME ESTR A IT PARK PVT. LTD FOR A TOTAL CONSIDERATION OF ` 12 42 00 000/- VIDE SALE DEED DATED 24.1.2007. IN THE SALE DEED IT IS MENTIONED IN PA RA 3 THAT THE ITA 1581/10 :- 9 -: ASSESSEE IS COMPELLED TO SELL THE PROPERTY AS AT PR ESENT IT IS NOT FETCHING ANY INCOME. THE ISSUE INVOLVED BEFORE US IS AS TO WHETHER THE LAND SOLD IS AGRICULTURAL LAND OR IT IS TO BE T REATED AS A CAPITAL ASSET IN THE TERMS OF SECTION 2(14) OF THE ACT. IT IS TR UE THAT THE DEFINITION OF AGRICULTURAL LAND IS NOT GIVEN IN THE INCOME-TAX AC T BUT VARIOUS FACTORS CONTRIBUTE TO ASCERTAIN THE CORRECT NATURE OF A PAR TICULAR PIECE OF LAND. IF A LAND IS SITUATED WITHIN 8 KMS OF THE MUNICIPAL LIMITS OF A CITY EVEN IF IT IS RECORDED AS AGRICULTURAL LAND IN THE REVEN UE RECORDS IT IS TO BE TREATED AS NON-AGRICULTURAL LAND AND FOR THAT MATTE R AN ASSET BUT IN THIS CASE THE ADMITTED FACT IS THAT THIS LAND FALLS BEY OND 8 KMS FROM THE NOTIFIED LIMIT. IT IS TRUE THAT AS PER REVENUE REC ORDS THE LAND HAS BEEN RECORDED AS AGRICULTURAL LAND. IT IS FOUND TO BE A FACT THAT THE ASSESSEE HAS BEEN SHOWING AGRICULTURAL INCOME FROM THIS VERY LAND AND THE SAME HAS BEEN ACCEPTED BY THE REVENUE AS SUCH YEAR AFTER YEAR. THE LAND WAS PURCHASED BY THE ASSESSEE AND AT THAT TIME IT WAS LOW LYING AS SOME MUD WAS TAKEN FROM IT FOR MAKING BRIC KS ETC. BUT ADMITTEDLY AFTER PURCHASE NO SUCH ACTIVITY WAS CAR RIED OUT ON THIS LAND. EVEN IF WE ACCEPT THE CONTENTION OF THE REVE NUE THAT NO AGRICULTURAL PRODUCTION WAS DONE BY THE ASSESSEE ON THIS LAND THIS MERE FACT WILL NOT TAKE OUT THE LAND OUT OF THE NOM ENCLATURE OF AGRICULTURAL LAND. THE ASSESSEE GROWS COCONUT ON THIS LAND AND THE SAME ARE SOLD IN THE MARKET AND THESE RECEIPTS ARE TREATED AS ITA 1581/10 :- 10 - : AGRICULTURAL RECEIPTS BY THE REVENUE. THE ASSESSEE HAS ALSO PAID AGRICULTURAL LAND TAX AND COPIES OF THE SAME WERE M ADE AVAILABLE TO THE AUTHORITIES. THE LAND IN QUESTION IS SITUATED IN THE REVENUE ESTATE OF A VILLAGE NAMED IYYAPPANTHANGAL PANCHAYAT WHICH IS SITUATED MORE THAN 8 KMS AWAY FROM THE LIMITS OF ALANDUR MUNICIPA LITY. WE HAVE FOUND THAT THE LAND HAS BEEN AGRICULTURAL LAND FOR THE PAST MANY YEARS AND HAS BEEN CLASSIFIED AS SUCH IN THE RECORDS OF T HE REVENUE DEPARTMENT. THE ASSESSEE HAS PAID KIST OF ` 400/- EACH IN RESPECT OF LAND ON 30.1.2007 REGARDING FASLI YEARS 1413 1414 1415 AND 1416. IT WAS BROUGHT ON RECORD THAT THIS LAND WAS BEING CULT IVATED BY ONE LOCAL PERSON NAMELY SHRI MURUGAN BUT FOR ASSESSMENT YEA RS 2005-06 AND 2006-07 AGRICULTURAL OPERATIONS WERE CARRIED OUT B Y HIM HE COULD NOT GET FOOD RETURNS AND THAT IS WHY HE DID NOT ADMIT A NY AGRICULTURAL INCOME IN THE RETURNS FILED. THE REPORT OF THE TAH SILDAR REFERS TO NON- CULTIVATION OF THE LAND BECAUSE AN AGRICULTURAL OPE RATION IN A LARGE SCALE WAS NOT CARRIED OUT ON THIS LAND. HENCE WE HOLD THAT THE LAND SOLD BY THE ASSESSEE IS ONLY AGRICULTURAL LAND AND NOT A CAPITAL ASSET. THEREFORE NO LONG TERM CAPITAL GAIN IS ATTRACTED. CONSEQUENTLY WE CONFIRM THE ORDER APPEALED AGAINST AND DISMISS THE APPEAL OF THE REVENUE. ITA 1581/10 :- 11 - : 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 .01.11. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (HARI OM MARATHA) JUDICIAL MEMBER DATED: 20 TH JANUARY 2011 RD COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR