THE ITO 19(2)-1, MUMBAI v. ANITA P. JAYKAR, MUMBAI

ITA 2610/MUM/2008 | 2003-2004
Pronouncement Date: 08-10-2010 | Result: Dismissed

Appeal Details

RSA Number 261019914 RSA 2008
Assessee PAN AAJPJ3257F
Bench Mumbai
Appeal Number ITA 2610/MUM/2008
Duration Of Justice 2 year(s) 5 month(s) 23 day(s)
Appellant THE ITO 19(2)-1, MUMBAI
Respondent ANITA P. JAYKAR, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 08-10-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 08-10-2010
Date Of Final Hearing 20-09-2010
Next Hearing Date 20-09-2010
Assessment Year 2003-2004
Appeal Filed On 15-04-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI RAJENDRA SINGH ACCOUNTANT MEMBER I.T.A. NO. 2610/MUM/2008 ASSESSMENT YEAR : 2003-04. THE INCOME-TAX OFFICER SMT. ANITA P. JAYKAR 19(2)-1 MUMBAI. VS. 402 JAI APARTMENT LINKING ROAD SANTRACTRUZ (W) MUMBAI 400 054. PAN AAJPJ3257F. . (APPELLANT) (RESP ONDENT) APPELLANT BY : SHRI R.S. SRIVASTAVA. RESPONDENT BY : SHRI V.G. GINDE. O R D E R PER D. MANMOHAN V.P. THIS IS AN APPEAL FILED AT THE INSTANCE OF THE RE VENUE AND IT PERTAINS TO THE ASSESSMENT YEAR 2003-04. THE ONLY SUBSTANTIVE G ROUND RAISED BY THE REVENUE READS AS UNDER : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE CLAIM OF EXEMPTION U/S 2(14)(III) OF THE I.T. ACT 1961 AMOUNTING TO RS.14 50 800/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND WITHOUT APPRECIATING T HE FACT THAT THE GOVERNMENT OF MAHARSHTRA HAS DECLARED THAT SUBJECT MATTER OF LAND AS HILL STATION ARE MUCH PRIOR TO THE TRANSFER OF SALE BY THE ASSESSEE AND THEREFORE 2 THE IMPUGNED LAND COMES UNDER THE INDUSTRIAL ZONE I N ORDER TO DEVELOP THE TOURISM. 2. THE FACTS OF THE CASE REVOLVE IN A NARROW COMPA SS. THE ASSESSEE ADMITTEDLY PURCHASED AGRICULTURAL LAND FOR A SUM OF RS.36 000/- ON 31-01-1989. THE SAME WAS SOLD TO SAHARA INDIA COMMERCIAL CORPOR ATION LTD. LONAWALA PUNE ON 22-10-2002 FOR A TOTAL CONSIDERATION OF RS.15 86 750/-. ACCORDING TO THE ASSESSEE IT WAS A CASE OF SALE OF AGRICULTURAL LAND WHEREAS THE AO WAS OF THE VIEW THAT THE PIECE OF LAND SOLD BY THE ASSESSEE WAS A N ON-AGRICULTURAL LAND FOR THE FOLLOWING REASONS : A) THE LAND IN QUESTION WAS NOTIFIED IN SEPTEMBER 1993 BY THE DRAFT REGIONAL PLAN FOR PUNE REGION AS TOURISM DEVELOPMEN T ZONE. IT WAS INTENDED TO BE UTILIZED FOR DEVELOPMENT OF TOURIST S RESORTS MOTELS HEALTH FARMS WATER SPORTS ETC. B) ACCORDINGLY THE STATE GOVERNMENT ANNOUNCED NEW I NDUSTRIAL POLICY IN 1993 TO DEREGULATE AND RATIONALIZE THE RULES AND PR OCEDURES RELATING TO SETTING UP NEW CENTERS IN THE STATE. THEREFORE NO PERMISSION OF THE COLLECTOR UNDER MAHARASHTR LAND REVENUE ACT 1966 FOR CONVERS ION OF AGRICULTURAL LAND TO BONA FIDE INDUSTRIAL USE IS REQUIRED IF A LAND IN QUESTION IS SITUATED WITHIN A PROPOSED OR DRAFT INDUSTRIAL ZONE. IN 1997 A NOTIFICATION WAS ISSUED BY THE AUTHORITIES DECLARING VILLAGE AMBAVANE TQ. MULSI DISTRICT PUNE AS HILL STATION. 3. UNDER THE CIRCUMSTANCES THE AO WAS OF THE OPIN ION THAT THE IMPUGNED LAND WAS SOLD AS A NON-AGRICULTURAL LAND A ND HENCE THE ASSESSEE IS LIABLE TO PAY CAPITAL GAINS ON THE AMOUNT RECEIVED FROM SA LE OF THE IMPUGNED LAND. 4. AGGRIEVED THE ASSESSEE CONTENDED BEFORE THE CI T(APPEALS) THAT IN THE LIGHT OF SEVERAL DECISIONS OF THE APEX COURT AS WEL L AS THE HONBLE BOMBAY HIGH COURT THE ISSUE AS TO WHETHER A LAND IS AN AGRICU LTURAL LAND OR A NON-AGRICULTURAL LAND IS A MIXED QUESTION OF LAW AND FACT AND SEVERA L FACTORS HAVE TO BE CONSIDERED 3 BEFORE COMING TO THE CONCLUSION AS TO THE NATURE AN D CHARACTER OF LAND. IT WAS CONTENDED THAT THE LAND IN QUESTION WAS USED AS AN AGRICULTURAL LAND BY THE ASSESSEE AND LAND REVENUE WAS PAID ACCORDINGLY. THE ASSESSEE HAD ALSO DECLARED AGRICULTURAL INCOME IN HIS RETURN IN THE PAST YEARS AND THE REV ENUE HAS NEVER DISPUTED THE SAME. IT CANNOT BE DISPUTED THAT THE LAND WAS BEING USED FOR THE AGRICULTURAL PURPOSE TILL THE DATE OF SALE. THE AO NOWHERE BROUG HT ANY THING ON RECORD TO ESTABLISH THAT AGRICULTURAL ACTIVITY WAS NOT BEING CARRIED OUT ON THE SAID PLOT OF LAND. IT WAS FURTHER SUBMITTED THAT MERELY BECAUSE THE GO VERNMENT HAS COME OUT WITH A POLICY DECISION IT DOES NOT NECESSARILY IMPLY THAT ALL THE LAND IN THAT AREA SHOULD AUTOMATICALLY BE TREATED AS NON-AGRICULTURAL LAND S INCE PROVISIONS OF THE INCOME- TAX ACT AS WELL AS THE VARIOUS TESTS/PRINCIPLES LA ID DOWN BY THE VARIOUS JUDICIAL PRONOUNCEMENTS MAKES IT CLEAR THAT SPECIFIC FACTS N EED TO BE EXAMINED TO ARRIVE AT THE CONCLUSION AS TO THE NATURE OF LAND. HAVING EXA MINED THE FACTS IN DETAIL THE LEARNED CIT(APPEALS) OBSERVED AS UNDER : ON THE BASIS OF THE MATERIAL AND ARGUMENTS AVAILA BLE BEFORE ME IT APPEARS THAT THE AO HAS NOT GONE INTO EXAMINING THE VARIOUS FACTS RELATED TO THE TWO PLOTS OF LAND. THE AO HAS ALSO NOT GONE INT O THE VARIOUS DECISIONS LAID DOWN BY THE APEX COURT AND FURTHER SUPPORTED B Y VARIOUS HIGH COURT PRONOUNCEMENTS. THE APPELLANT HAS PUT FORWARD VARIO US EVIDENCES IN SUPPORT OF ITS CONTENTION THAT THE NATURE OF THE LAND WAS A GRICULTURAL. THE LAND REVENUE RECORDS REPORTING OF AGRICULTURAL INCOME I N INCOME TAX RETURN IN THE PAST YEARS SUBMISSIONS OF 7 X 12 EXTRACTS EVIDENCI NG AGRICULTURAL PRODUCE WERE SOME SPECIFIC EVIDENCES RELIED UPON BY THE APP ELLANT. IT IS ALSO ARGUED THAT PHYSICAL CHARACTERISTICS OF THE LAND AND SURRO UNDING SITUATIONS ALSO CLEARLY INDICATE THE NATURE OF LAND WHICH WAS AGRIC ULTURAL. ON THE OTHER HAND THE AO HAS ONLY RELIED UPON THE POLICY OF THE GOVER NMENT TO DEVELOP THE AREA AS TDZ AND HAS COME TO THE CONCLUSION THAT BY VIRTUE OF SUCH A DECLARATION ALL THE LAND IN THE AREA WOULD DEEMED T O BE NON-AGRICULTURAL IN NATURE. THERE ARE NO OTHER EVIDENCES BROUGHT ON REC ORD BY THE AO TO ESTABLISH THAT THE NATURE OF LAND WAS NON-AGRICULTU RAL LAND. EVEN THOUGH THE 4 AO HAS ARGUED THAT THE ONUS TO ESTABLISH THE CLAIM LIES WITH THE APPELLANT HE HAS NOT COUNTERED VARIOUS EVIDENCES PUT FORWARD BY APPELLANT WHO SUBSTANTIATE ITS CLAIM OF AGRICULTURAL CLAIM. ALSO KEEPING IN VIEW VARIOUS JUDICIAL PRONOUNCEMENTS TWO CRUCIAL ISSUES WHICH H AVE ALSO BEEN UPHELD RELATE TO THE NATURE OF AGRICULTURAL LAND AT THE TI ME OF SALE AND ALSO THAT IT IS NOT IMPORTANT AS TO WHOM THE SALE HAS BEEN MADE. TH E APPELLANT HAS PROVIDED VARIOUS EVIDENCES OF THE LAND BEING AGRICU LTURAL NATURE AND AT THE SAME TIME THERE IS NO EVIDENCE BROUGHT ON RECORD TH AT LAND HAS EITHER BEEN USED OR WAS INTENDED TO BE USED FOR NON-AGRICULTURA L PURPOSES. IN MY OPINION MERELY AN APPREHENSION THAT THE LAND IS LIKELY TO BE USED FOR NON-AGRICULTURAL PURPOSES IN FUTURE CANNOT FORM THE BASIS FOR TREATING THE LAND AS NON-AGRICULTURAL LAND. AFTER GIVING DUE CONSIDERATION TO THE VARIOUS FACTS AND ARGUMENTS AS WELL AS SEVERAL JUDICIAL PRONOUNCEMENTS RELATED TO THIS ISSUE I AM OF THE OPINION THAT THE AO HAS NOT APPRECIATED THE VARIOUS FACTS NECESSARY FOR ARRIVING AT THE CONCLUSION WHETHER THE LAND IS AGRI CULTURAL OR NOT. THE AR OF THE APPELLANT HAS VEHEMENTLY ARGUED AND PROVIDED EV ID4ENCES SUBSTANTIATING THAT THE NATURE OF LAND WAS AGRICULTURAL. ACCORDING LY THE APPELLANT HAS RIGHTLY MADE A CLAIM OF EXEMPTION IN VIEW OF SECTION 2(14) (III) OF THE I.T. ACT 1961. HE HAS ALSO NOTICED THAT EXCEPT THE URBAN LAND THE LAND FALLING BEYOND 8 KMS. OF THE MUNICIPAL LIMITS REQUIRES TO BE CONSIDERED ON THE STRENGTH OF THE CHARACTERISTIC OF THE LAND AND THE PURPOSE FOR WHICH IT WAS PUT TO USE. SINCE THE LAND WAS UTILIZED BY THE ASSESSEE AS AN AGRICULTURAL LAND AND SOLD TH E SAME AS SUCH WITHOUT CONVERTING THE SAME AS NON-AGRICULTURAL LAND THE L EARNED CIT(APPEALS) CONCLUDED THAT THE IMPUGNED SALE IS OF AGRICULTURAL LAND AND HENCE THE ASSESSEE WAS JUSTIFIED IN CLAIMING EXEMPTION U/S 2(14)(III) OF THE INCOME- TAX ACT 1961. 5. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. EXCEPT CHALLENGING THE ORDER OF THE LEARNED CIT(APPEALS) NO MATERIAL WAS BROUGHT ON RECORD NOR ANY CASE 5 LAW WAS RELIED UPON TO POINT OUT THAT THE ORDER PAS SED BY THE LEARNED CIT(APPEALS) SUFFERS FROM ERRONEOUS APPRECIATION OF FACTS OR LAW . 6. AFTER HEARING THE LEARNED COUNSEL AS WELL AS TH E LEARNED DR IN THIS REGARD AND ON A CAREFUL CONSIDERATION OF THE FACTS WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE LEARNED CIT(APPEALS) DOES NOT SUFFER FROM ANY INFIRMITY IN THE ABSENCE OF PRODUCTION OF ANY EVIDENCE BY THE APPEL LANT TO CONTRADICT THE FINDINGS OF THE LEARNED CIT(APPEALS). SINCE WE ARE IN AGREEM ENT WITH THE ORDER PASSED BY THE LEARNED CIT(APPEALS) IT IS NOT NECESSARY FOR U S TO REPEAT THE REASONS STATED THEREIN. SUFFICE IT TO SAY THAT WE ARE IN AGREEMEN T WITH THE ORDER PASSED BY THE LEARNED CIT(APPEALS) AND THEREFORE THE APPEAL FIL ED BY THE REVENUE IS HEREBY DISMISSED. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 8 TH DAY OF OCT. 2010. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER. VICE PRESIDENT MUMBAI DATED : 8 TH OCT. 2010. WAKODE 6 COPY TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR H-BENCH (TRUE COPY) BY ORDER ASSTT. REGISTRAR ITAT MUMBAI BEN CHES MUMB AI..