AMITKUMAR AMBALAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The question that stands referred to us for our consideration at the instance of the assessee runs as follows:

(2.) On the question which we are called upon to answer, our concentration must be first to find out as to whether there has been a proper actual finding by the Tribunal applying the correct tests laid down in this behalf. We must straightway say that we are the summing up portion the finding of the Tribunal is to the effect that the land sold by the assessee has not been established by him to be an agricultural land,- on very many aspects which are relevant, doubts have been expressed by the Tribunal in unamibiguous terms. With regard to the total extend of Survey Nos. 73/1 and 73/2, not going into the new Survey Number, the Tribunal observes it is not clear as to what happened to the rest for some other purposed. Again it is observed by the Tribunal that it is not clear how much of the new plot related to S.No. 73/1 and how much to S.No. 73/2. The Tribunal did advert to the fact that in the past the land was only agricultural land. If that is so, a legimate presumption arises that it continued to be agricultural land. It is true that, this presumption is a rebutable one. But there should be definite indications about conversion. The factors to be taken note of in the field of rebuttal must be convincing and positive and not presumptive. The Tribunal rightly stated that the actual land sold alone has to be the land is admittedly agricultural or non-agricultural. Apart from stating the proposition, the Tribunal does not appear to have remembered and applied it to the facts of the case in vigour. The Tribunal has no definite answer with regard to treatment of the lands in the panipatraks. The entire discussion of the Tribunal is in a doubtful sphere. Ultimately here the Tribunal in an omnibus manner opines that it has not bee established by the assessee with clear evidence that the land sold was agricultural land.

(3.) The question as to how the land should be classified, either as agricultural or non-agricultural, is not one that comes up for consideration for the first time. There are pronouncements of the Court itself speaking on the subject. In the case of Commissioner of Income Tax, Gujarat-II vs. Vajulal Chunilal (HUF), reported in 1979 Vo. 120 ITR 21, useful guidelines have been recapitulated by this Court and the Head Note of the report succinctly brings them out as follows : Entries in the record of rights are good prima facie evidence regarding agricultural and land. The approach of the fact-finding authorities, namely, the income-tax authorities and the Tribunal, should be to consider the question from the point of view of presumption arising from entries in the record of rights or actual user of the land them consider whether that presumption is dislodged b y the presence of other factor in the case. If the land is actually used at the relevant date for agriculture purpose and there are no special features, for example building plot being actually used as a stopgap arrangement for agricultural purposes, it would be agricultural land. Potential use of the land as an agricultural land is totally immaterial. The mere fact that permission has been granted under the Bombay Tenancy and Agricultural Lands Act by the authorities concerned for sale of agricultural land to a non-agriculturist would not result in the land ceasing to be agricultural land. If the conditions of the permission are not complied with, the land in respect of which permission was granted would revert to its original character of agricultural land.