T.S.R.KHANNAIYANN,CHENNAI vs. DCIT, COIMBATORE

आदेश / O R D E R

PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER

Fact apropos are that assessee carrying on business of 2. manufacturing and selling transformers, had filed his return for the impugned assessment year disclosing total income of �27,34,885/- and agricultural income of �18,10,750/-. During the course of assessment proceedings, it was noted by the ld. Assessing Officer that assessee had declared long term capital gains of �33,52,365/- on sale of a land at Sowripalayam and claimed the gains on sale of another land at Othakalmandapam for �5,26,80,000/- as exempt. The latter sale was effected to M/s. Hindustan Educational and Charitable Trust where the assessee was the sole trustee. The land which was sold to M/s.

Hindustan Educational and Charitable Trust measured 4.34 acres. It was purchased by the assessee on 28.06.1995 for a consideration of �89,915/-. Assessee moored its claim for exemption based on a plea that the said land was registered as agricultural land and assessed to land revenue as agricultural property. However, Assessing Officer was of the opinion that land sold was classified by the Registration Department as industries type II and the guideline value of the said

ITA No.804/Mds/2016 :- 3 -: land was much lower than the consideration of �5,26,80,000/- received by the assessee from M/s. Hindustan Educational and

Ganeshan Ginning Co. land to M/s. DLF Retail Developers during the very same previous year. Again as per the ld. Assessing Officer, assessee had during the previous year relevant to assessment year 2009-2010 sold a property to M/s. Hindustan Educational and Charitable Trust for a consideration of �10,67,00,000/-. This property, as per the ld. Assessing Officer, was purchased by the assessee in 2003 at a cost of �68,00,000/-. According to him, all these

ITA No.804/Mds/2016 :- 4 -: transactions went to prove that assessee was in the business of purchasing and selling land.

Further, as per Assessing Officer this land was ready for development and guideline value of the land was fixed by the Registration department on square foot basis not on acreage basis. In the opinion of ld. Assessing Officer, no person would have purchased a land at the price at which it was sold, for doing any agricultural operation. Relying on the Hon’ble Apex Court decision in the case of Smt. Saarifabibi Mohamed Ibrahim and Others vs. CIT (1993) 204 ITR 631, the Assessing Officer held that the land sold by the assessee to M/s.

Hindustan Educational and Charitable Trust at Othakalmandapam was not agricultural in nature. Ld. Assessing Officer also relied on the judgment of Hon’ble Gujarat High Court in the case of CIT vs.

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Siddartha Desai (139 ITR 628). According to him if the yardsticks laid down by their lordship in the above judgment, was applied, the land sold by the assessee to M/s. Hindustan Educational and Charitable Trust could never be considered as agricultural in nature.

In any case as per Assessing Officer frequency of the 5. transactions indulged by the assessee by way of purchase and sale of land clearly established his intention to earn profit through an organized activity. As per Assessing Officer land transactions done by the assessee in earlier years, alongwith transactions entered during the relevant previous year, demonstrated assessee’s intention to do business of purchasing and selling of land. Thus according to him, irrespective of the question whether the land sold was agricultural or not, the profits arising on sale had to be assessed under head ‘business income’. Thus, he considered surplus arising to the assessee on sale of land at Sowripalayam which assessee placed under the head ‘capital gains’ and surplus arising to the assessee on sale of Othakalmandapam which assessee claimed exempt, as profits on sale of land under the head income from business. Assessment was completed accordingly.

Aggrieved, assessee moved in appeal before Commissioner 6. of Income Tax (Appeals). As per assessee, 4.34 acres of land sold to ITA No.804/Mds/2016 :- 6 -:

M/s. Hindustan Educational and Charitable Trust situated at Othakalmandpam was purely agricultural in nature. Claim of the assessee was that Government records proved the agricultural nature of lands. Assessee submitted that land was situated fourteen kilometers from the city limit of Coimbatore Corporation. Relying on u/s.2(14)(iii) of the Act, assessee argued that the said land had to be considered as excluded from the definition of ‘capital assets’, since it was agricultural in nature. Further submission of the assessee was that KIST payments and land record also proved the nature of land.

Assessee also disputed the findings of the Assessing Officer that land was classified as Industrial Type II by the Registration Department.

Argument of the assessee before Commissioner of Income Tax (Appeals) was that on applying the thirteen indicators, laid down by Apex Court in the case of Smt. Sarifabibi Mohmed Ibrahim (supra), it was clear that land sold was agricultural in nature. According to him, Assessing Officer had committed a factual mistake.

wrongly interpreted. According to the assessee though it had attempted to make certain investments in the land of M/s. Standard Motors Ltd during the previous year relevant to assessment year 2006-07, it did not fructify since the sale was cancelled by High Court.

Further, as per assessee advance of �241.11 lakhs given for purchase of property during the previous year relevant to assessment year 2007-2008 was not be reckoned since there was no actual purchase.

Coming to the sale of land of M/s.Ganesha Ginning Company Limited to M/s. DLF Retail Developers submission of the assessee was that there was no transaction of land but only transfer of equity shares.

Assessee also pointed out to the ld. Commissioner of Income Tax (Appeals) that gains arising on sale of land for previous year relevant to assessment year 2007-08 was considered for assessment only under the head Capital gains. As per assessee, land was held by him as investments and not as stock in trade. Relying on the judgment of jurisdictional High Court in the case of CIT vs. E. Udayakumar (2006)

(284 ITR 511) assessee argued that purpose for which the purchaser intended to use the land was not relevant for determining the nature of the land sold.

sale of 4.34 acres of land at a price of �5,26,80,000/- to M/s.

Hindustan Educational and Charitable Trust, where assessee was the sole trustee, he had earned much higher profit than he would have received if the sale was effect at the guideline value. Further as per ld. Commissioner of Income Tax (Appeals) on applying the tests laid down by the Apex Court in the case of Smt. Sarifabibi Mohmed Ibrahim (supra), it was clear that the land sold was not agricultural in nature. The ld. Commissioner of Income Tax (Appeals) concluded that land sold by the assessee at Sowripalayam was situated in a residential area and land sold by the assessee in Othakalmandapam was in a developed area. Further as per ld. Commissioner of Income Tax (Appeals) no agriculturist would have offered the price for which it was sold. Relying on the judgment of Hon’ble Bombay High Court in the case of CIT Vs. Gopal Ramnarayan Kasat (2010) 328 ITR 559, ld. Commissioner of Income Tax (Appeals) held that even an isolated transaction could be considered as adventure in the nature of trade.

As per ld.CIT(A) once a continuity in transactions was established it had to be considered as a business activity only. Further, as per ld. Commissioner of Income Tax (Appeals) even during the previous year relevant to assessment year 2009-2010 assessee had sold a property with guideline value of �68 lakhs to the very same trust, for a price of �10.67 Crores. According to him, ld. Assessing Officer had taken a ITA No.804/Mds/2016 :- 9 -: right view that land Othakalmandapam sold to the Trust was non agricultural land and the transactions had to be considered under the head income from business. He thus confirmed the action of the ld. Assessing Officer.

Now before us, ld. Authorised Representative strongly 9. assailing the orders of the lower authorities below submitted that land at Othakalmandapam was well beyond 8Km periphery of Coimbatore Corporation. As per ld. Authorised Representative adangal, chitta as well as other Revenue records clearly proved the land to be agricultural. Reliance was placed on paper book page no.102 to 111 in this regard. Further, as per ld. Authorised Representative, the Registration department had never classified the land as industrial in nature. Reliance was placed on certificate of Registration department placed at page no.101 in this regard. The main thrust of the argument of the ld. Authorised Representative was that the land was all along used for agricultural purpose and certificate from revenue authorities confirmed this. As per ld. Authorised Representative assessee had held the land for long period of sixteen years before selling it. It was not a case of purchase and sale of land in a continuing series of transactions. The transactions of land highlighted by the Assessing Officer, were not a part of any pre-conceived series. As per ld.

ITA No.804/Mds/2016 :- 10 -:

Authorised Representative, without verifying the location of the land Assessing Officer had come to a wrong conclusion that it was situated in a developed area. Land sold, as per ld. Authorised Representative, was valued by registered authority on acreage basis not on square foot basis. Further as per ld. Authorised Representative purpose for which the purchaser intented to use the land was not relevant, when all other factors clearly proved that the land sold was agricultural in nature.

10. Assailing the view taken by the lower authorities that the transactions fell under the head income from business, the ld. Authorised Representative submitted that land was held by the assessee only as an investment and so, classified in its balance sheet.

As per ld. Authorised Representative assessee never made any improvement in the land sold. Reliance was once again placed in the decision of Jurisdictional High Court in the case of E. Udayakumar (supra). Ld. Authorised Representative also submitted that each assessment year had to be considered separately and few number of transactions of sale of land over number of years could not convert it to a business venture. Ld. Authorised Representative strongly placed reliance on the decision of jurisdictional High Court in the case of Mrs.

ITA No.804/Mds/2016 :- 11 -: Sakunthala Vedachalam vs. Mrs. Vanitha Manickavasagam vs. (2014) 369 ITR 558.

Hindustan Educational and Charitable Trust was non-agricultural in nature. Further as per ld. Departmental Representative guideline value of the said land came to �12,45,580/- only whereas consideration received by the assessee was �5,26,80,000/-. The land was sold to a trust of which assessee was the Managing Trustee. As per ld. Departmental Representative no person would have acquired 4.34 acres of land for a price of �5,26,80,000/- for pursuing agricultural activity. This itself according to him, proved the land to be non- agricultural. According to him surplus on sale of land was rightly taxed by the ld. Assessing Officer as business income.

ITA No.804/Mds/2016 :- 12 -:

Assessee had sold two pieces of land during the relevant previous year. First piece of land at Sowripalayam on which assessee returned long term capital gains �33,52,365/-. Obviously, the land was more than three years old since its purchase. Second piece of land sold by assessee at Othakalmandapam, claimed by the assessee as agricultural in nature, measured 4.34 acres. It’s location was beyond fourteen kilometers from Coimbatore Corporation limits. The said land was sold by the assessee to a Charitable Trust of which assessee was the Managing Trustee, for a price of �5,26,80,000/-. Apart from these two transactions, there were certain other land transactions entered by the assessee in previous years relevant to assessment years 2006- 2007, 2007-08 and 2009-10. In the previous year relevant to assessment year 2006-2007, there was purchase of agricultural land for �3,67,00,000/-. Though during that year assessee had attempted to make investments in land of M/s. Standard Motors Ltd it had not fructified. This position has not been disputed by the Revenue.

During the very same year assessee has sold land for �74,00,000/-.

The next transaction was during the previous year

ITA No.804/Mds/2016 :- 13 -: relevant to assessment year 2007-08. Assessee had sold land for �48.81 lakhs and also given an advance of �241.11 lakhs for purchasing another land. The assessee also appear to have sold shares of M/s. Ganesha Ginning Co. Ltd to M/s. DLF Retails during the said year. However, this in our opinion cannot be equated to a land sale. During the previous year relevant to assessment year 2009-2010 assessee had sold a piece of land for �10.67 crores. There obviously was no purchase or sale during the relevant previous year 2008-2009.

In our opinion, above transactions which happened over a number of years were so sporadic that it could not be considered as one creating a series which could show an intention to trade in land. None of the land sold by the assessee over the period of five years was developed by the assessee or plotted by the assessee. Assessee had shown the land always as investments in its balance sheet. No doubt it was held that Bombay High Court in the case of Gopal Ramnarayan Kasat(supra) that even an isolated transaction could qualify as an adventure in the nature of trade. But their Lordship also held that a continuity was necessary for reaching a conclusion that assessee was indulging in a trade or business. In our opinion, purchase and sale done by the assessee over a period of five years was not of such frequency that could create a chain or continuity, which can persuade us to believe that assessee had an intention to do a business or trade

ITA No.804/Mds/2016 :- 14 -: of purchase and selling a land. Just like any other investor, assessee invested in land over a long period of time at disparate places. It effected sale of land whenever an opportunity arose. In some years, there were more than one number of such transactions. In certain other years, there were no transaction of purchase or sale of land. In our opinion, the conclusion of the lower authorities that there existed a series of transactions and assessee had an intention to trade in land or do real estate business was incorrect. Especially so, since assessee was in the business of manufacturing transformers. Thus, according to us, surplus arising out of sale of land during the relevant previous year could not have been considered under the head ‘income from business’ but only under the head ‘capital gains’.

This takes us to second issue as to whether 4.34 acres land 13. sold by the assessee at Othakalmandapam to M/s. Hindustan Educational and Charitable Trust, was agricultural or not. If it was agricultural land assessee would not be exigible to capital gains tax, since Section2(14)(iii) of the Act excluded agricultural land from the definition of ‘capital assets’. Claim of the assessee was that the said land was classified by Revenue Department as agricultural in revenue records. Ld. Assessing Officer himself has stated that in the assessment order that the land sold was classified in the Revenue

ITA No.804/Mds/2016 :- 15 -: records as agricultural and it was subject to payment of land revenue.

However, as per Assessing Officer, the land was not actually used for agricultural purpose. In our opinion this conclusion was reached by the Assessing Officer without any material evidence. The land was owned by assessee since 1995 and was purchased at a cost of �89,915/- Therefore conclusion of the Assessing Officer that income derived from agricultural operation did not bear a rational proportion to the cost is itself incorrect. Assessee had declared agricultural income of �18,10,750/- during the relevant previous year. Assessing Officer had also come to a conclusion that the land was situated in a developed area, when in reality the land was situated 14 km from the Coimbatore Corporation limit. There was no plotting of land done by the assessee. Certificate from the registration department placed at page 101 of paper book does not classify the land as industrial land.

It simply mentioned the land fell under a category called dry special type of land class II. It might be true that purchaser of land had no intention to carry on any agricultural activity in the said land. No doubt Hon’ble Apex Court in the case of Smt. Sarifabibi Mohammed Ibrahim (supra) has laid down thirteen tests for declaring whether a piece of land is agricultural or not. However it does not require a cumulative satisfaction of all the thirteen indicators. The question has to be answered, considering the answers to all the thirteen indicators. In ITA No.804/Mds/2016 :- 16 -: the case before us, it is an admitted position that the revenue records classified the land as agricultural in nature. Assessee had held the land for more than fifteen years before he sold it and had also shown agricultural income in his returns. There is nothing on record to show that adjoining areas were used for non agricultural only. There is nothing on record to show that land was sold on square foot basis.

On the other hand, copy of sale deed placed at page no.65 to 76 show that land was sold on acreage basis. In the case of Sakunthala Vedachalam vs. Vanitha Manicka Vasagam (supra) the Hon’ble Jurisdictional High Court had after considering the judgment of Gujarat High Court in the case Siddartha Desai (supra) held as under:-

‘’9. The issue involved in the above tax case (appeals) lies on the narrow compass, viz., whether the lands sold by the assessees are agricultural lands and whether they are entitled to the benefit of exemption from capital gains tax.

11. The assessee has 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 has also accepted that the lands are falling within the restricted zone in terms of section 2(14) of the Income-tax Act.

12. Hence, the only point that has to be considered is that whether the test as laid down in the decision reported in CIT v. Siddharth J. Desai [1983] 139 ITR

ITA No.804/Mds/2016 :- 17 -:

628 (Guj) has been satisfied by the assessees. In the said decision, in paragraph 11, it is held as follows (page 638) :

"On a conspectus of these cases, several factors are discernible which were considered as relevant and which were weighed against each other while determining the true nature and character of the land. It may be useful to extract from those decisions some of the major factors which were considered as having a bearing on the determination of the question. Those factors are :

(1) Whether the land was classified in the revenue records as agri cultural and whether it was subject to the payment of land revenue ?

(2) Whether the land was actually or ordinarily used for agricultural purposes at or about the relevant time ?

(3) Whether such user of the land was for a long period or whether it was of a temporary character or by way of a stop-gap arrangement ?

(4) Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land ?

(5) Whether, the permission under section 65 of the Bombay Land Revenue Code 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 date, had ceased to be put to agricultural use ? If so, whether it 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 in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled ? Whether the owner meant or intended to use it for agricultural purposes ?

(8) Whether the land was situate in a developed area ? Whether its physical characteristics, surrounding situation and use of the lands in the adjoining area were such as would indicate that the land was agri cultural ?

(9) Whether the land itself was developed by plotting and provid ing roads and other facilities ?

(10) Whether there were any previous sales of portions of the land for non- agricultural use ?

(11) Whether permission under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist ? If so, whether the sale or intended sale to such non-agriculturist was for non-agricultural or agricultural user ?

(12) Whether the land was sold on yardage or on acreage basis ?

ITA No.804/Mds/2016 :- 18 -:

(13) Whether an agriculturist would purchase the land for agricultural 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 yielding agricultural produce on the basis of its yield ?

At the risk of repetition, we may mention that not all of these factors would be present or absent in any case and that in each case one or more of those factors may make appearance and that the ultimate decision will have to be reached on a balanced consideration of the totality of circumstances."

"2. (14) 'capital asset' means property of any kind held by an asses see, 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 busi ness or profession ;

(ii) personal effects, that is to say, movable property (including wearing apparel and furniture, but excluding jewellery) held for per sonal use by the assessee or any member of his family dependent on him :

Explanation.-For the purposes of this sub-clause, 'jewellery' includes-

(a) ornaments made of gold, silver, platinum or any other pre cious metal or any alloy containing one or more of such precious met als, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel ;

ITA No.804/Mds/2016 :- 19 -:

(b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel ;

(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 corpora tion, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a popu lation 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 kilometres, from the local limits of any municipality or cantonment board referred to in item (a), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification in the Official Gazette ;

(iv) 6½ per cent. Gold Bonds, 1977, or 7 per cent. Gold Bonds, 1980, or National Defence Gold Bonds, 1980, issued by the Central Government ;

(v) Special Bearer Bonds, 1991, issued by the Central Government ;

(vi) Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999, notified by the Central Government."

plea raised. Furthermore, it is also on record that the lands are agricultural lands classified as dry lands, for which kist has been paid.

Their lordship had clearly held that nature of use of adjacent land was not relevant in deciding the nature of land sold by an assessee. Their lordship had also held that a presumption could never be taken regarding the purpose for which the buyer purchased the land.

Lordship also observed that nature of classification of land by the Revenue authorities in the revenue record was of prime importance in determining the nature of land sold by the assessee. Considering the facts and circumstances of the case and also applying the law laid down by Hon’ble Jurisdictional High Court in the case of Sakunthala Vedachalam vs. Vanitha Manickavasagam (supra), we are of the ITA No.804/Mds/2016 :- 21 -: opinion that lower authorities fell in error in considering the land measuring 4.34 acres at Othakalmandapam sold by the assessee to M/s. Hindustan Educational and Charitable Trust as non agricultural in nature and exigible to capital gains. The said land could not be considered as capital asset by virtue of Sec. 2(14)(iii) of the Act. Assessee was justified in claiming that surplus arising out of sale of land as not exigible to capital gains tax.

In the result, the appeal of the assessee stands allowed. 14.

Order pronounced on Friday, the 28th day of October, 2016, at Chennai.