SYED HUSSAIN SAHEB BABU,CHENNAI vs. ITO, CHENNAI

आदेश / O R D E R

Per A. Mohan Alankamony, AM:-

2. The assessee has raised several grounds in his appeal, however the crux of the issue is that the Ld.CIT(A) has erred in confirming the addition made by the Ld.AO for Rs.5,12,92,076/- by treating the sale of the agricultural land of the assessee which is exempt u/s. 2(14) of the Act as non-agricultural land.

1) The assessee had not declared any agricultural income in his return of income.

2) The gain arising out of the sale of the agricultural land was also not reflected in the return of income but only a foot note about the transaction was mentioned in such a manner so as to escape from the eye of the tax enforcing authority.

3) The assessee is not an agriculturist by profession and he is not depending upon agricultural income, rather he is a business man and his main source of income is only from business.

4) Nowhere in the sale deed it was mentioned as agricultural land, in fact it was only stated as vacant land. Further in the settlement deed by virtue of which the assessee became the owner of the land also, it was mentioned only as vacant land.

5) The classification in the Revenue records state the land as ‘punjai’.

6) The adangal certificate also does not mention that any agricultural activity was performed in the land.

7) The land in question falls in the zone of urbanisable area as

per the notification of 2004 issued by the Government of

Tamil Nadu.

8) The land is in close vicinity of Pudupakkam village which is very near to SIPCOT industrial area, a hub for information

Technology Park.

9) In the surrounding area high power lines and towers were erected and in the western side of Pudupakkam village reputed industries, housing units, cement factory, dry fish factory, etc., have sprung up which shows that the land transferred by the assessee is not agricultural land.

10) The valuation of the land mentioned by the Sub-Registrar was in Sq.ft. and not in yardage or acreage.

11) As per the letter of the Sub-Registrar, Thiruporur, the land was sold at a higher rate of Rs.500/- per sq.ft., on 30.08.2012 whereas the lowest rate was Rs.50/- per sq.ft., as on 01.04.2012.

12) The land was not sold for agricultural purpose, instead for 13) The intention of the purchaser was to gift the portion of the land to TNEB for installing a sub-power station and to provide car parking facility to the 2500 flat owners of the project

Cosmo city.

14) The assessee had leveled the land in the first quarter of the year 2012 engaging M/s. BRK Enterprises, Civil contractors,

Kelambakkam and had spent Rs.13,19,000/- for the same.

15) The assessee had declared agricultural income for a period of 19 days only for the assessment year 2012-13 prior to which the assessee’s spouse had held the property as vacant land.

16) The assessee had also not furnished any evidence to show that he has earned agricultural income.

17) In the statement recorded from Shri R. Kesavan and Shri S. Babu also suggest that the land owned by the assessee is in the industrial and residential area.

i. Abhijit Subhash Gaikwad v. DCIT in to 701 (PN) of 2013, Pune Bench reported in [2015] 60 taxmann.com 259 (Pune-Trib). ii. B. Ramachandhiran v. CIT, Tax case (Appeal) No.262 of 2009 in High Court of Madras reported in [2014] 43 taxmann.com 430 (Madras). iii. CIT-II, Amristar v. Smt. Neeru Agarwal, IT Appeal Nos.190, 208 & 209 of 2012 in High Court of Punjab and Haryana reported in [2013] 40 taxmann.com 295 (Punjab & Haryana) iv. G.M. Omer Khan v. ACIT. Civil Appeal No.2830 of 1977 in Supreme Court of India reported in [1992] 63 taxman 533 (SC) v. Income Tax Officer v. Aboobucker in (MDS) of 2013, Chennai Bench report in [2016] 67 taxmann.com 114 (Chennai-Trib.) vi. CIT v. Smt. Rani Tara Devi, ITA Appeal Nos.104 & 105 of 2009 in High Court of Punjab & Haryana reported in [2013] 31 taxmann.com 234 (Punjab & Haryana) vii. CIT v. Gemini Pictures Circuit (P.) Ltd, Civil Appeal Nos. 6133 – 6134 of 1983 in Supreme Court of India reported in [1996] 85 Taxman 594 (SC)

(b) The land was situated beyond 8 Kms., from the municipal limits of Thiruporur peratchi which is evident from the certificate issued by the VAO. (c)The population of Pudupakkam village is below 10,000 as

per the State census data which is very much available in the public domain and there is no dispute on the same. (d) The assessee had also performed certain agricultural operations in the land though not continuously. (e) The Encumbrance Certificate issued by the Registration Department also mentions that the land transferred by the assessee on 30.08.2012 is agriculture land and only during the month of April 2013 the classification of the land was changed as Housing Site by the Sub-Registrar. (f) The assessee’s wife had also offered agricultural income during the past 14 years which was accepted by the department. (g) The land was purchased by the assessee on 19th April 1989 vide sale deed registration No. 959 of 1989, Thiruporur Sub-Registrar office wherein it is clearly stated that the land is agriculture land. (h) On the north side of the land there is a lake from which the water was drawn for cultivating the land. For the above reasons it was argued that the land sold by the assessee is agriculture land and as per Section 2(14) of the Act it falls outside the ambit of capital asset and therefore the sale of the land will not attract capital gain tax. The Ld. AR also placed reliance on the judgment of the Hon’ble Jurisdictional High Court in the case of Mrs. Sakunthala Vedachalam vs. ACIT in TCA No.566 & 567 of 2013 and the Hon’ble Gujarat High Court in the case of CIT vs. Siddharth J. Desai reported in 139 ITR 628 wherein it was held that when the land is classified in the Revenue records as agriculture land and the other conditions laid down in Section 2(14) of the Act is complied with then the capital gain arising out of the sale of the land shall be exempt from tax.

Seetharama Iyer vide registered document No.959 of 1989 in Sub-Registrar of Thiruporur, book No.1, volume 814, pages 231 to 234. ii) The above purchase deed of the assessee’s spouse mentions the land to be agriculture “punjai” land situated in Pudupakkam Panchayat, Thiruporur Panchayat Union in page No.2 of the deed. iii) The assessment order dated 26.08.2009 by the Income Tax Officer, Business Ward – XII(2), Chennai – 6 of the assessee’s spouse (PAN:AOWPS1957A) for the assessment year 2007-08 also reveals that the assessee has earned agricultural income. iv) Subsequently, the land measuring 2.36 acres at Survey No.5/13 is transferred in the name of the assessee by way of settlement deed; document No.2509 of 2012 dated 13.03.2012 at Sub-Registrar Office, Thiruporur. v) Thereafter the assessee sold the land to M/s. Provident Housing Limited on 30.08.2013 for a sale consideration of Rs.5,15,02,500/- vide document No.8492 of 2012, book-1, page No.4 to 13. From page No.3, clause VII it is evident that there is a lake in Survey No.2 adjoining to the land. vi) The Encumbrance Certificate issued by the Registration Department clearly shows that the land sold by the assessee is classified as Agriculture land as on 30.08.2012 which is subsequently converted as Housing site during the month of April 2013. The same is extracted herein below for reference. vii) The population of the Pudupakkam village is less than

10,000 as disclosed in the public domain. The relevant page extracted from the internet is enclosed herein below for reference. viii) The Village Officer has also certified that the land is beyond 8 Kms. from the Thiruporur Municipal limit vide his certificate dated 27.01.2016. Copy of the same is enclosed in the paper book. ix) The case laws relied by the Ld. CIT(A) are not applicable to the facts of the case of the assessee. In those cases provision of Section 2(14)(iii)(a)&(b) of the Act are violated as discussed herein below which is not in the case of the assessee:- a. Abhijit Subhash Gaikwad v. DCIT (supra): In this case the Land Revenue records maintained by the Revenue authorities showed that the land is not capable for cultivation. Further the assessee had also not indulged in any agricultural activity. b. B. Ramachandhiran v. CIT (supra): The assessee had not discharged any materials to establish that the land in question is agriculture land. Further he has not performed any agricultural operations in the land. c. CIT-II, Amristar v. Smt. Neeru Agarwal (supra) : The land in question was within the distance of 8 kms., from the municipality limit. d. G.M. Omer Khan v. ACIT (supra) : The land in question though situated in a village was well within the municipality limit of the city. e. ITO v. Aboobucker (supra) : In this case there was a specific finding that (i) the assessee had not carried out any agricultural activities, (ii) the land was situated in the hub of development activities encircled by hi-tech commercial & residential apartments and (iii) in the entire belt there was no agricultural activities and the area was transformed in to private townships. f. CIT v. Smt. Rani Tara Devi (supra): The land was situated within the limits of the wide scope of the term

“municipality”. g. CIT v. Gemini Pictures Circuit (P.) Ltd. (supra) : The land was situated within the municipality limits under the classification of urban land.

9. From the above it is crystal clear that the assessee’s spouse

purchased agriculture land which was subsequently transferred in the name of the assessee. The assessee’s spouse had performed agricultural operations in the land during the assessment year 2007-

8. Further the nature of the land remains the same until it was transferred to M/s. Provident Housing Limited. These facts cannot

be disputed as it is evident by documents refered herein about. In this situation the orders cited by the Ld. AR is relevant. The Hon’ble

Jurisdictional Jurisdictional High Court in the case of Mrs.

Sakunthala Vedachalam vs. ACIT supra had held that a) The manner in which the adjoining lands are used by the respective owners is not a ground to treat the land in question as non-agriculture land. b) It is not necessary for the assessee to performe agricultural operations during the relevant assessment year to claim his land to be agriculture land. c) Even agriculture land classified as dry land for which kist has been paid will be eligible to be held as agriculture land for the purpose of Section 2(14) of the Act. d) The decision in the case CIT v. Raja Benoy Kumar Sahas Roy reported in 32 ITR 466 fortifies that the expression “Agriculture

Land” should be interpreted in its wide significance as including lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. e) Once there is a finding that the land is classified as agriculture land in the Revenue records evidence by adangal and letter of the Revenue authorities satisfying the conditions of Section 2(14) of the Act; then the Revenue is bound to treat the land in question as agriculture land.

10. In the case of the assessee the Encumbrance Certificate

issued by the Revenue authorities clearly states that the land sold by the assessee is agriculture land. The Village Officer certificate also state that the land is situated outside 8 Kms. of Thiruporur

Municipal limits. From the public domain extracted herein above it is evident that the population of the Pudupakkam village wherein the land is situated is less than 10,000. Hence the condition laid down in Section 2(14)(iii) of the Act, is complied with and the land transferred by the assessee cannot be treated as capital asset and therefore will fall outside the ambit of capital gain tax. Moreover the reasons cited by the Ld. AO do not have any force. Once the assessee has established that the land in question is agriculture land, it is not necessary for him to prove that he has carried on agricultural operation, or earned agricultural income if the land is kept vacant and not used for any other purpose. The Revenue records only states whether the land is wet land or dry land and both category of land are capable for agricultural activities. Therefore, it cannot be said that if the land is classified as punjai “i.e., dry land, agricultural activities cannot be performed on such land. The future planning of the Government to bring the land under urbanization zone is not relevant unless and until the land is classified as non- agricultural land in the Revenue records. The developments in the close vicinity are also immaterial unless the land is classified as non-agriculture. Similarly the valuation of the land by the Sub- registrar office, the intention of the purchaser of the land is also not relevant because nowhere in the Act it is mentioned that in such situation the benefit of Section 2(14)(iii) of the Act shall be denied.

Further on the identical issue, this Bench of the Tribunal in the case of Shri N. Venkatraman, in vide order dated

04.01.2017 had held as follows:

“8. We have heard the rival submissions and carefully perused the materials on record. The learned Authorized Representative produced the following documents before us which could not be confronted by the Revenue:- S.No. Description Page No. in the paper book 1. Patta No.1071 in the name of the assessee 151 Mr.N.Venkatraman S/o, S.Nagarajan to the extent of 1 Hectare 12.50 are in Kattavakkam village issued by the Tahsildar, Kanchipuram Taluk.

mentioned villages population is less than 20,000 4 In response to the Summon issued u/s.131 157, 159, the VAO, Kattavakkam vide his letter dated 161 7.1.2016 had enclosed the copy of relevant adangal register with respect to the cultivation performed in the land owned by Shri N.Venkatraman (the assessee) and others of the neighborhood :- 1. Groundnut 2. Coconut plantation 3. Turmeric 4. Sugarcane 5. Land tax receipt in the name of Mr. 163 N.Venkatraman (the assessee) dated 24.04.2008 for Patta No.1071 for Rs.500/- and for Patta No.1061 for Rs.400/-

i) The land in question was dry land. ii) No agricultural operation was carried out in the land. iii) The land is situated in the close proximity to the industrial area of Oragadam. iv) The land was sold to Real Estate Company for non- agricultural purposes. v) The land was sold at exorbitant price. vi) Only in the remote past the land was used for agricultural purposes. vii) The assessee had not declared agricultural income in his return.

The question was whether the property called "Begumpet Palace" within the municipal limits of Hyderabad consisting of vacant lands of about 108 acres and also buildings enclosed in compound walls constituted "agricultural land" within the meaning of clause (i) of section 2(e) of the Wealth-tax Act, 1957. Because the land was never intended to be used for agriculture and was not ploughed or tilled, the income-tax authorities and the Appellate Tribunal held that the property could not be treated as "agricultural land" within the meaning of section 2(e). On a reference, the High Court held the land to be agricultural land because: (i) the area was 108 acres abutting the Hussain Sagar tank; (ii) the land had two wells in it; (iii) it was capable of being used for agricultural purposes, (iv) it had not been put to any use which could change the character of the land by making it unfit for immediate cultivation; and (v) it was classified and assessed to land revenue as "agricultural land" under the A.P. Land Revenue Act. On appeal to the Supreme Court:

Held, that the first four features considered by the High Court and based upon absence of any user for non-agricultural purposes were inconclusive, and the fifth feature alone provided some evidence of the character of the land from the point of view of its purpose. That the property was classified in the revenue records as agricultural land was not conclusive and such entries could raise only a rebuttable presumption. Therefore, the Appellate Tribunal should determine afresh whether the lands were agricultural after giving opportunity to both sides to lead further evidence.

Simply because "agricultural land" has not been defined in the Wealth tax Act, 1957, it is not correct to give the expression as wide a meaning as possible. The correct rule is to find out the exact sense in which the words have been used in the particular context and give an interpretation in consonance with the purpose of the statute. The object of the Act is to tax surplus wealth and it is clear that all land was not excluded from the definition of "assets". Therefore, it is imperative to give reasonable limits to the scope of the expression "agricultural land" and give it a restricted meaning;.

The determination of the character of the land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption is to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in the evidence to indicate the intention of its owners or possessors so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. ii) In the case CWT Vs. E.Udayakumar, reported in 284 ITR 511 ,the Hon’ble Madras High Court has held as follows:- “The fact that there was a hospital in the adjacent land was totally irrelevant. Since the assessee had not put up any construction thereon, the assessee was entitled to claim exemption from the wealth-tax.” iii) In the case N.S.Srinivasa Naicker & Sons Vs. ITO reported in 292 ITR 481(Mad) the Hon’ble Madras High Court has held as follows:- “Held that it was an admitted case that till the date of sale, agricultural operations were carried on by the assessee. The land was put to use only for agricultural purposes and not for anything else. The lands in question were also registered as agricultural lands and assessed to land revenue. The fact that the purchaser had put it to use for a totally different purpose from that of the assessee ought not to have weighed with the tax authority. Capital gains tax could not be levied.” iv) In the case CIT Vs. Manilal Somnath reported in 106 ITR 917 (Guj), the Hon’ble Gujarat High Court has held as follows:-

“Held that what had to be considered is not what the purchaser did with the land or the purchaser was supposed to do with the land but what was the character of the land at the time when the sale took place. The fact that the land was within municipal limits or that it was included within a proposed town planning scheme was not by itself sufficient to rebut the presumption arising from actual use of the land. The land had been used for agricultural purposes for a long time and nothing had happened till the date of the sale to change that character of the land. The potential non-agricultural value of the land for which a purchaser may be prepared to pay a large price would not detract from its character as agricultural land at the date of the sale. The land in question was therefore, agricultural land.” v) In the case CIT Vs. Smt. Lilavati Thakorelal Patel reported in 152 ITR 565 (Guj), the Hon’ble Gujarat High Court has held as follows:- “ Held that in determining whether land is agricultural or not, the important factors which should be taken into consideration are: (i) classification of the land in the revenue records as agricultural land; (ii) actual or ordinary use of the land for agricultural purposes at or about the relevant time; (iii) whether such user was for a substantial period or it was for a temporary duration only by way of a stop-gap arrangement; (iv) rational proportion of income from the land to investment made therein; (v) permission under s. 65 of the Bombay Land Revenue Code for change of user, and when and by whom it has been obtained; (vi) cessation of the agricultural use and converting the land to non- agricultural purpose; (vii) non-use for agricultural purpose of the land though listed in revenue records as agricultural land; (viii) its situation, physical characteristics and development in the vicinity; (ix) permission under s. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, and when and by whom; (x) price of the land on sale, and whether the value was determined as a unit of the land or on yardage or on acreage basis? “ vi) In the case Mrs. Sakunthala Vedachalam & Another Vs. ACIT reported in 369 ITR 558 (Mad), the Hon’ble Madras High Court has held as follows:-

“Held, allowing the appeals, that the assessees had also produced a copy of the adangal and the letter from the tahsildar, which showed that the lands were agricultural in nature and the Revenue had also accepted that the lands were falling within the restricted zone in terms of section 2(14) . The assessees have qualified under clause 11(1) since as per the adangal records, these lands were classified as agricultural lands and the assessees have also paid revenue kist, namely, revenue payment. The tests laid down by the Gujarat High Court relied on by the Tribunal clearly stated that any one of the factors can be present in a case to qualify for the benefit of classification as agricultural lands. The reason given by the Tribunal was that the adjacent lands were put to commercial use by way of plots and, therefore, the very character of the lands of the assessees was doubted as agricultural in nature. The manner in which the adjacent lands were used by the owner therein was not a ground for the Tribunal to come to a conclusion that the assessees' lands were not agricultural in nature. The reason given by the Tribunal that the adjacent lands have been divided into plots for sale would not mean that the lands sold by the assessees were for the purpose of development of plots. Also the reasoning given by the Tribunal “No agriculturists would have purchased the land sold by the assessee for pursuing any agricultural activity” was based on mere conjectures and surmises. Therefore, the assessees were entitled to exemption. vii) In the case CIT Vs. Borhat Tea Co.Ltd. reported in 138 ITR 783 (Cal), the Hon’ble Calcutta High Court has held as follows:-

“For the purpose of land being agricultural land, actual agricultural operations or cultivation or tilling of the land is not necessary. What is to be seen is whether such land is capable of agricultural operations being carried on thereon.”

11. Further, provisions of section 2(14) (iii) is extracted herein below for reference. “2(14) Capital asset means- (a) ……… (b) ……. (i)……….. (ii)………….

(iii) agricultural land in India, not being land situate—

(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; or (b) in any area within the distance, measured aerially,—

(I) not being more than two kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten thousand but not exceeding one lakh; or (II) not being more than six kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh.

Explanation.—For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year;”

12. From the above, it is crystal clear that the land sold by the assessee cannot be brought under the ambit of capital gains tax because it is an agricultural land and does not fall within the definition of capital asset under section 2(14) of the Act because of the following reasons:- i) The land is classified as agricultural land in the revenue records. ii) It is situated outside the limit of eight kilometers from the municipal limits. iii) As per the revenue records, agricultural activities were being carried out in the land. iv) Though the Revenue has made allegation that the land is surrounded by industrial area, however no evidence is brought before us to justify their claim.

v) The land was purchased and subsequently sold by the assessee was classified as agricultural land in the revenue records. vi) The intention of the purchaser of the land is immaterial. vii) Just because the price of the land is exorbitant, it cannot be treated that the land is non-agricultural, when the revenue record states otherwise. viii) The large extent of land would also point out to the fact that it is agricultural land. ix) Even if some commercial establishments have sprung up in the close vicinity of the land, it cannot mean that the primary characteristic of the agricultural land is lost.

Sarifabibi Mohmed Ibrahim (Supra) the facts are not identical because in that case the land was situated within the Municipal limits and within a town planning scheme while as in the case of the assessee the land is situated beyond 19 K.m., from the Municipal limits. Further it is not necessary for the assessee to exploit the agricultural land by commercial production of agricultural produce but it would suffice even if agricultural activities are carried out for self consumption. For the aforesaid reasons, we hereby hold that the land sold by the assessee is agricultural land and cannot be termed as “capital asset” by virtue of section 2(14) of the Act and hence, capital gain arising out of the sale of the land sold by the assessee will not attract capital gain tax. Therefore, we hereby direct the learned Assessing Officer to delete the addition made for Rs. 1,28,38,808/- under the head long term capital gains.”

Order pronounced in the court on the 17th March, 2017