SHYAM LAL,JAIPUR vs. ITO, ALWAR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 758/JP/2011 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Mamchand Gurjar, I.T.O., Vs. Near Housing Board, Sector-1, Ward 2(2), Bhiwadi, Alwar. Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACWPC0978 M vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 833/JP/2014 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Smt. Sukhdai, I.T.O., Vs. W/o- Late Shri Narayan Singh, Ward 2(2), C/o- Shri Mam Chand Gurjar, Alwar. Near Housing Board, Sector-1, Bhiwadi, Tehsil- Tijara, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 834/JP/2014 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Shri Manphool Gurjar, I.T.O., Vs. S/o- Late Shri Narayan Singh, Ward 2(2), C/o- Shri Mam Chand Gurjar, Alwar. Near Housing Board, Sector-1, Bhiwadi, Tehsil- Tijara, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: vihykFkhZ@Appellant izR;FkhZ@Respondent

ITA 758/JP/2011 & 833 to 837/JP/2014_ 2 Mamchand Gurjar with 5 Ors. Vs. ITO vk;dj vihy la-@ITA No. 835/JP/2014 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Shri Hari Singh, I.T.O., Vs. S/o- Late Shri Narayan Singh, Ward 2(2), C/o- Shri Mam Chand Gurjar, Alwar. Near Housing Board, Sector-1, Bhiwadi, Tehsil- Tijara, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 836/JP/2014 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Shri Shyam Lal, I.T.O., Vs. S/o- Late Shri Narayan Singh, Ward 2(2), C/o- Shri Mam Chand Gurjar, Alwar. Near Housing Board, Sector-1, Bhiwadi, Tehsil- Tijara, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AIIPL 0704 E vihykFkhZ@Appellant izR;FkhZ@Respondent vk;dj vihy la-@ITA No. 837/JP/2014 fu/kZkj.k o"kZ@Assessment Year : 2008-09 cuke Shri Jagat Singh, I.T.O., Vs. S/o- Late Shri Narayan Singh, Ward 2(2), C/o- Shri Mam Chand Gurjar, Alwar. Near Housing Board, Sector-1, Bhiwadi, Tehsil- Tijara, Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BLGPS 4473 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar (Adv.) jktLo dh vksj ls@ Revenue by : Smt. Poonam Roy (DCIT) lquokbZ dh rkjh[k@ Date of Hearing : 25/04/2018 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 27/04/2018

ITA 758/JP/2011 & 833 to 837/JP/2014_ 3 Mamchand Gurjar with 5 Ors. Vs. ITO vkns'k@ ORDER

PER: BHAGCHAND, A.M.

ITA No. 758/JP/2011 filed by the assessee emanates from the order

of the ld. CIT(A), Alwar dated 20/06/2011 for the A.Y. 2008-09 and ITA

Nos. 833 to 837/JP/2014 filed by the different assessees emanates from

the order of the ld. CIT(A), Alwar dated 25/09/2014 pertaining to the A.Y.

2008-09.

appeals were heard together and for the sake of convenience and brevity,

a common order is being passed.

addition of capital gain considering the land sold by these assessees as

‘capital asset’ and not as an agricultural land, which does not fall under

the definition of ‘capital asset’ as per the Income Tax Act. The land sold

was 14.08 bighas (3.52 hectare) at khasara No. 22/1220 and 22/1221 at

village Jalalpur, tehsil- Tijara, district- Alwar (Raj) held by all these co- owners in 1/6th share each.

3.1 The facts of ITA No. 758/JP/2011 is that the assessee Shri

Mamchand Gurjar is an agriculturist and also derives income from rent

and interest. The return of income for the A.Y. 2008-09 was filed on

ITA 758/JP/2011 & 833 to 837/JP/2014_ 4 Mamchand Gurjar with 5 Ors. Vs. ITO

26/3/2009 declaring total income of Rs. 2,47,540/- and agricultural

income of Rs. 1,22,750/-. The Assessing Officer finalized the assessment

at a total income of Rs. 31,07,195/- wherein an addition of Rs.

24,99,286/- was made on account of capital gain on the sale of the land.

This action of the Assessing Officer was confirmed by the ld. CIT(A). Now

the assessee is in appeal before the ITAT. The grounds of appeal read as

under:

Grounds of ITA No. 758/JP/2011 “1. That the ld. CIT(A), Alwar erred in law as well as on the facts while confirming the addition of Rs. 2499286/- by considering agriculture land as residential property. As land under consideration measuring 14.08 Bigha is regularly used for agriculture purpose and also situated more than 8 K.M. distance from municipal area of Tijara and same does not fall under the definition of capital asset, define in Section 2(14) of IT Act.

that the facts of the issue are that the assessee alongwith other family

members jointly purchased land in the year 1993-94 and the same were

sold during the year under consideration. As per the contention of the

assessee, this land was earlier held by a person belonging to the

scheduled caste community as agricultural land. As per the laws of State

ITA 758/JP/2011 & 833 to 837/JP/2014_ 5 Mamchand Gurjar with 5 Ors. Vs. ITO

Government, agricultural land in the name of scheduled caste person

cannot be transferred to any non scheduled caste person. To avoid this,

the seller converted the land into the residential. After conversion, this

land becomes salable to assessee. The only purpose of conversion by

previous owner was to make it salable in open market and to overcome

the legal hurdle of state laws. However, for all practical purposes, the

land continued to be used for agricultural purposes. The facts on record

shows that the agricultural activities were being carried out on this land

by the previous owner and by these assessees also. All the co-owners of

the land were agriculturists and they have declared agricultural income in

their respective returns of incomes. Prior to the purchase of the land, the

agriculture activities were being carried out on this land and even after

the purchase of the land, the land continued to be used for agriculture

purposes by co-owners. In support of this, copy of khasra girdawari for

relevant period has been placed on record. The agricultural income was

being continuously disclosed in the return of income. The land is

surrounded by agricultural land only. This land is located beyond 8 k.ms.

from the municipal limits of small town Tijara in Alwar district. In this

regard, a certificate from the panchayat was placed on the record. There

was no scope for urbanization on this land. The size of land also shows

that this could not be used for residence by these persons also. It is

ITA 758/JP/2011 & 833 to 837/JP/2014_ 6 Mamchand Gurjar with 5 Ors. Vs. ITO

submitted that the land in question was purchased by the assessee from

a scheduled caste person and the Assessing Officer as well as the ld.

CIT(A) has given more emphasis on the form rather than the substance.

The land disclosed in the registry has been classified as Barani Doyam,

which is capable in growing crops. Even the person to whom the land was

sold were continuing agriculture operations on this land. They continued

to do agricultural operation after the purchase of this land. Further the ld.

AR of the assessee has submitted as under:

In the assessment order on page 5 and 6 the Learned Assessing Officer has observed that the land purchased was residential property. The assessee constructed room of the size of 10x15 feet and Baramda of 15 x 8 feet for the use of cattle. Boundary wall was also constructed and one hand pump was also installed. The Learned Assessing Officer has also admitted that the land purchased was residential property in documents but "some part of land was used for cultivation", (on page 6 of the assessment order). The Learned CIT(A) has also admitted that "the khasra girdawari shows that the assessee used this residential land in cultivating the agriculture."(page 12 of the assessment order). However both the authorities still decline to accept that since the land was used of agricultural purposes therefore the same continued to be agricultural land despite being shown as converted in the records. The submission of the assessee is that when the land is used for agricultural which is borne out from the fact that assessee also installed a hand pump for carrying out agricultural activity. The construction of one room of the size of 10 x 15 feet and construction of one baramda of the size of 15 x 8 cannot convert land of the size of 6957 sq. meters from agricultural to residential. It is common knowledge that law permits some construction upto 5% of land on agricultural land also.

ITA 758/JP/2011 & 833 to 837/JP/2014_ 7 Mamchand Gurjar with 5 Ors. Vs. ITO

Therefore the mere construction of a small room and baramda cannot be said to alter the use and character of the land. The Learned Assessing Officer and the Learned CIT(A) have failed to controvert the submission of the assessee that during the entire period of holding from 1993-94 to 2007-08 was continuously used for agricultural purposes. Supporting evidence was filed in the shape of khasra girdawari. The assessee also disclosed agricultural income in the income tax returns. What more evidence is required to establish that the land was of the nature of agricultural land. The assessee has disclosed agricultural income in various Assessment Years as under as quoted by the Learned CIT(A) on page no. 8 of his order – Assessment Agricultural income declared Remarks year by the assessee 2003-04 112750 Accepted by the Revenue 2004-05 168500 Accepted by the Revenue 2005-06 147750 Accepted by the Revenue 2006-07 168960 Accepted by the Revenue 2007-08 163850 Accepted by the Revenue Intention of the assessee –

While rejecting the claim of the assessee the Learned CIT(A) has observed as under in para 5.3 of his order –

"I have carefully considered the assessment order as well as submission of the assessee and case relied upon, originally this was owned by 'scheduled caste'. As per the land Revenue act any agricultural land belonging to scheduled caste cannot be sold to the other than scheduled caste. The assessee devised a method to transfer this land in his own name by converting agricultural in residential property to violate the land laws of Rajasthan Govt. The intention of the assessee was clear to earn the bounty of profit by selling this land in his name but he also wanted to avoid to pay the tax on long term capital gain. Thus he also created the evidence to give the colour of agricultural land and agricultural income shown in the I.T. Return."

ITA 758/JP/2011 & 833 to 837/JP/2014_ 8 Mamchand Gurjar with 5 Ors. Vs. ITO

The perusal of the aforesaid para discloses the mindset of the Learned CIT(A) in deciding the issue. On the one hand he has accepted the fact that the land in question purchased by the assessee was essentially and basically of agricultural nature. It was only because the seller was a schedule caste person that the land was purchased after getting it converted. The purpose of conversion was not that the land was going to be used for purposes other than agriculture. In fact the limited purpose of conversion was to get the land transferred from the owner who was a schedule caste person. Beyond that the purpose of conversion was nothing. This fact has not been properly appreciated by the Learned CIT(A) even though he has acknowledged the facts in his order. To this extent the order of the Learned CIT(A) is erroneous and deserves to be quashed.

The Learned CIT(A) has raised the issue of the intention of the assessee which is unfortunate and uncalled for. The Learned CIT(A) has held that the assessee purchased the land with a moto of earning profits and he has shown agricultural income in the income tax returns just to establish that the land was agricultural. It is not clear from the order of the Learned CIT(A) as to what made him to observe like this. The land was purchased by the assessee in the year 1993-94. It is common knowledge that the prices of land and immovable property started rising in the year 2004 and these were at their peak in the year 2007. It is because of the abnormal rise in the land price that the assessee took the decision to sale the land and the law does not prohibit the assessee from doing this. It wrong on the part of the Learned CIT(A) to say that agricultural income was disclosed to give the land color of agricultural land. The revenue has accepted the agricultural income. So it does not behove the Learned CIT(A) to observe like this. The assessee could not plan in 1993-94 while purchasing the land that the land prices would soar in the year 2007. Such things cannot be planned and they go on their way. The assessee just availed the opportunity of selling the land at higher price. There is no manipulation on the part of the

ITA 758/JP/2011 & 833 to 837/JP/2014_ 9 Mamchand Gurjar with 5 Ors. Vs. ITO

assessee. The Learned CIT(A) erred in taking a decision on wrong assumptions. Hence the decision of the Learned CIT(A) deserves to be quashed.

ITA 758/JP/2011 & 833 to 837/JP/2014_ 10 Mamchand Gurjar with 5 Ors. Vs. ITO

Sr. No. Particular of parameters Remarks 1. Whether the land was classified in Although the land was subject the revenue records as agricultural to the payment of land and whether it was subject to the Revenue but in the Revenue payment of land Revenue. records it was shown as non- agricultural. The khasra girdawari furnished disclosed that the land was used for the agricultural purposes. 2. Whether the land was actually or Since the date of purchase to ordinarily used for agricultural the date of sale the land was purposes at or about the relevant put the agricultural use only. time 3. Whether such user of the land was Since the date of purchase to for a long period or whether it was the date of sale the land was of a temporary character or by way put the agricultural use only. of a stop-gap arrangement 4. Whether the income derived from Yes the agricultural income the agricultural operations carried disclosed in the income tax on in the land bore any rational return by the assessee was proportion to the investment made accepted by the Revenue. in purchasing the land 5. Whether the permission under s. 65 No permission was sought for of the Bombay Land Revenue Code urbanization of the land. 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 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 No. The land continued to be date, had ceased to be put to used for agricultural purposes

ITA 758/JP/2011 & 833 to 837/JP/2014_ 11 Mamchand Gurjar with 5 Ors. Vs. ITO

agricultural use? If so, whether it even after the sale. was put to an alternative use? Whether such cesser and/or alternative user was of a permanent or temporary nature. 7. Whether the land, though entered The reverse is true. In the in revenue records, had never been Revenue records the land is actually used for agriculture, that is, shown as non agricultural but it had never been ploughed or was used for agricultural tilled? Whether the owner meant or purposes throughout the intended to use it for agricultural possession of the assessee. purposes. 8. Whether the land was situate in a No. The land is surrounded by developed area? Whether its the agricultural lands. physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agricultural. 9. Whether the land itself was Land was never developed. developed by plotting and providing Only a small room and roads and other facilities. baramda was constructed for purposes of cattle feeding etc. 10. Whether there were any previous No piece of land was sold sales of portions of the land for earlier. non- agricultural use. 11. Whether permission under s. 63 of No. The land has been sold to the Bombay Tenancy & Agricultural an agriculturist only for Lands Act, 1948, was obtained purposes of agriculture. because the sale or intended sale was in favour of a non-agriculturist was for non agricultural or agricultural user 12. Whether the land was sold on No. yardage or on acreage basis 13. Whether an agriculturist would The land has been purchased purchase the land for by an agriculturist. agricultural purposes at the

ITA 758/JP/2011 & 833 to 837/JP/2014_ 12 Mamchand Gurjar with 5 Ors. Vs. ITO

price at which the land was sold and whether the owner would have ever sold the land valuing it as a Property

Thus it would be seen that the case of the assessee meets all the parameters except only one, that too technically only. It is again reiterated that in the Revenue records the land was shown agricultural only for purposes of transfer in the name of the assessee from the previous owner who happened to be scheduled caste person. The land could not be transferred to him unless converted to non-agricultural. In view of this the case of the assessee deserves to be considered sympathetically. The Learned Assessing Officer and the Learned CIT(A) failed to consider the facts of the case in the right perspective. In the circumstances of the case no capital gains are attracted. The addition made by the Learned Assessing Officer and so confirmed by the Learned CIT(A) deserves to be deleted.

authorities below. She submitted that once the land has been classified as

ITA 758/JP/2011 & 833 to 837/JP/2014_ 13 Mamchand Gurjar with 5 Ors. Vs. ITO

residential then there is no scope for treating the land as agricultural land

for the purpose of taxation. She further submitted that the case laws

relied upon by the ld AR were in respect of the cases where agricultural

land was treated as non-agricultural by considering the various facts on

the record. The guideline of Hon’ble Gujarat High Court in the case of CIT

Vs. S.J. Desai to decide the issue of land being agricultural is also for the

purpose that the land which is agricultural in the nature but the various

other aspects make it to be treated as non-agricultural for the purpose of

taxation. Therefore, the ratio laid down is not applicable in the assessee’s

case. She pleaded to sustain the order of ld. CIT(A).

facts are undisputed on record. The land which was purchased by these

co-owners in the year 1993-94 from Shri Malkhan Singh S/o- Shri

Sawaliya, who was belonging to Scheduled caste category. Agricultural

land belonging to Scheduled caste category cannot be transferred to any

other person except to a person of scheduled caste category as per the

Rules and Regulations of the State Government. These assessees were

not of S.C. category hence had the land not converted it could not have

been legally transferable to these assessees. The land has been classified

in the purchase registry as Barani Doyam and converted. The facts of

agriculture activities continued to this land had been recorded in land

ITA 758/JP/2011 & 833 to 837/JP/2014_ 14 Mamchand Gurjar with 5 Ors. Vs. ITO

revenue records. The total area of the land was more than 14 bighas

(3.52 hectare). The location of the land was beyond 8 KM from any

municipal limit. The surrounding land was used for agricultural purposes.

There was no scope for urbanization. There was no scope even for

extension of any village Abadi on this land. Size of land itself negates the

possibility of utilizing this whole land for self residential purpose by these

assesses. Thus, it is well established by the fact on records that the

purpose of land conversion of Shri Malkhan Singh was only with the

intention to sale it to any person rather than restricted sale option to the

scheduled caste category person. The intention of the seller Shri Malkhan

Singh was not to convert the land to residential and then use the same

for that purpose. There was no scope for urbanization. As per the Rules

and regulations applicable for conversion, the agricultural land converted

to residential if not utilized for the converted purpose within two years

then the conversion becomes null and void. The assessee was

continuously used the land for agricultural purposes. A small room of

10”x15” and a varanda of 15”x8” for the purpose of cattle was

constructed. This small cattle shed construction on such a huge land does

not suggest that the land was utilized for residential purposes or there

was any intention to use for that purpose. Khasra Girdawari placed on the

record establishes that this land continued to be utilized as agricultural

ITA 758/JP/2011 & 833 to 837/JP/2014_ 15 Mamchand Gurjar with 5 Ors. Vs. ITO

land by these assessees. The assessees continued to declared agricultural

income in their return of income. The Hon’ble High Court of Mysore in the

case of Sri Krishna Rao L Balekai Vs WTO 48 ITR 472 (Mys) has held that

the land is assessed to the land revenue and agricultural land under the

State Revenue law which certainly a relevant fact but it is not conclusive

to decide the character of land. In each case, one or more factors may be

present or absent to make ultimate decision which can be reached on a

balanced consideration of the totality of circumstances. The Hon’ble

Gujarat High Court in the case of CIT Vs. S.J. Desai 139 ITR 0628 had

evolved 13 points to decide the character of land. The fulfillment of these

criterias has been elaborated in the submissions of the ld AR, which are

reproduced hereunder:

Sr. No. Particular of parameters Remarks 1. Whether the land was classified in the Although the land was subject to revenue records as agricultural and the payment of land Revenue but whether it was subject to the payment in the Revenue records it was of land Revenue. shown as non- agricultural. The khasra girdawari furnished disclosed that the land was used for the agricultural purposes. 2. Whether the land was actually or Since the date of purchase to the ordinarily used for agricultural date of sale the land was put the purposes at or about the relevant time agricultural use only. 3. Whether such user of the land was for Since the date of purchase to the a long period or whether it was of a date of sale the land was put the temporary character or by way of a agricultural use only. stop-gap arrangement 4. Whether the income derived from the Yes the agricultural income

ITA 758/JP/2011 & 833 to 837/JP/2014_ 16 Mamchand Gurjar with 5 Ors. Vs. ITO

agricultural operations carried on in disclosed in the income tax the land bore any rational proportion return by the assessee was to the investment made in purchasing accepted by the Revenue. the land 5. Whether the permission under s. 65 of No permission was sought for the Bombay Land Revenue Code was urbanization of the land. 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 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 No. The land continued to be date, had ceased to be put to used for agricultural purposes agricultural use? If so, whether it was even after the sale. put to 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 reverse is true. In the revenue records, had never been Revenue records the land is actually used for agriculture, that is, it shown as non-agricultural but had never been ploughed or tilled? was used for agricultural Whether the owner meant or intended purposes throughout the to use it for agricultural purposes. possession of the assessee. 8. Whether the land was situate in a No. The land is surrounded by the developed area? Whether its physical agricultural lands. characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agricultural.

ITA 758/JP/2011 & 833 to 837/JP/2014_ 17 Mamchand Gurjar with 5 Ors. Vs. ITO

by plotting and providing roads and small room and baramda was other facilities. constructed for purposes of cattle feeding etc. 10. Whether there were any previous No piece of land was sold earlier. sales of portions of the land for non- agricultural use. 11. Whether permission under s. 63 of the No. The land has been sold to an Bombay Tenancy & Agricultural Lands agriculturist only for purposes of Act, 1948, was obtained because the agriculture. sale or intended sale was in favour of a non-agriculturist was for non agricultural or agricultural user 12. Whether the land was sold on No. yardage or on acreage basis 13. Whether an agriculturist would The land has been purchased by purchase the land for agricultural an agriculturist. purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a Property

The land records like Khasra Girdawari shows that this land continuously

used for agricultural purposes. The land from the date of purchase till the

date of sale, continued to be used as agricultural land. Prior to the

purchase also, the land continued to be used for agricultural purposes and

even after the sale, the land continued to be used for agricultural

purposes. This land was purchased from an agriculturist and also sold to

an agriculturist. The term ‘Agriculture Land’ has not been defined in the

Constitution of India and also in the Income Tax Act, but agriculture land

must be land which could be said to be either actually used or ordinarily

used or meant to be used for agriculture purpose. In other words,

ITA 758/JP/2011 & 833 to 837/JP/2014_ 18 Mamchand Gurjar with 5 Ors. Vs. ITO

agricultural land must have a connection with an agriculture user or

purpose. The determination of the character if a particular piece of land,

according to the purpose for which it is meant or set apart and can be

used. It is a matter which needs to be determined on the facts of each

particular case. It is not the mere conversion but the actual condition and

intended user, which has to be seen. When there are sufficient evidence

and surrounding circumstances which indicate the intention of owner to

convert with the agriculture land to residence was not the use it for that

purpose. It continued to be agricultural land. Therefore, the land can be

termed as ‘agriculture land’. The agricultural income earned was being

disclosed in the return of income. There was no permission sought for

urbanization of the land. The surrounding of lands were all being used for

agricultural purposes only. There was no scope for urbanization at

relevant time even in near future as it was situated at faraway place from

municipal limit of Tijara. Therefore, the dominant factor for conversion of

this agricultural land was to make it transferable as this agricultural land

was belonging to a scheduled caste person and was not transferable to

any other person other than the scheduled caste person. These assessees

were not of that category. Apparently the sole reason for conversion was

to make the land transferable to these assessees. There was no other

apparent reason to convert it. The conversion was made only to make the

ITA 758/JP/2011 & 833 to 837/JP/2014_ 19 Mamchand Gurjar with 5 Ors. Vs. ITO

land transferrable rather than the utilization of the same for the declared

purpose for which it was converted. Thus, the dominant purpose of

conversion was to make the land transferable to any other person not

limited to the scheduled caste persons. The location of the land itself

shows that it was not capable to be developed for urbanization. The land

continued to be cultivated and all the necessary activities of agriculture

operations continued on this land. Prior to purchase of the land, during

the holding the land by these assessees and even after selling of this

land, the land continued to be used for agriculture purposes. In view of

the decision of Hon'ble Supreme Court and the Hon'ble High Courts, this

land cannot be categorized as non-agriculture. Hence the addition

made/sustained deserve to be deleted in all these appeals.

the same are dismissed as not pressed.

issue of capital gain.

Order pronounced in the open court on 27/04/2018.

Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 27th April, 2018

ITA 758/JP/2011 & 833 to 837/JP/2014_ 20 Mamchand Gurjar with 5 Ors. Vs. ITO *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellants- (i) Shri Mamchand Gurjar, Alwar. 1. (ii) Smt. Sukhdai, Alwar. (iii) Shri Manphool Gurjar, Alwar. (iv) Shri Hari Singh, Alwar. (v) Shri Shyam Lal, Alwar. (vi) Shri Jagat Singh, Alwar. izR;FkhZ@ The Respondent- The I.T.O., Ward 2(2), Alwar. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 758/JP/2011 & 833 to 837/JP/2014) 6. vkns'kkuqlkj@ By order,

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