Land cannot be held as an agricultural land in absence of agricultural operations

Jairam G Kimmane Vs DCIT (ITAT Bangalore)

In the present case, the claim of the Assessee that agricultural operations were carried out over the property and the property was actually used for agricultural purpose was sought to be established by relying on the classification of the property in revenue records. The Revenue contends that there is no evidence of the Assessee having carried out agricultural activities over the property. The Assessee has not established as to how agricultural activities were carried out and what expenses were incurred in carrying out agricultural operations over the property. The revenue also contends that the Assessee has not declared any income from Agriculture from the property in question. There is no evidence of availability of Agricultural produce and how they were dealt utilized. The Revenue also contends that the burden of proof that the property was agricultural land at the time of transfer to claim exemption was on the Assessee. As already observed, the question whether the land was Agricultural land has to be decided on facts of each case and decided cases are only guidelines to be kept in mind. Facts and all the circumstances are to be considered as a whole and an overall view is to be taken in deciding whether the land was an agricultural land. In a given case, large number of circumstances may be indicative of agricultural character, but one circumstance may outweigh all of them and on its basis the land would be held to be a non-agricultural land.

We will now apply the tests laid down by the Hon’ble Gujarat High Court in the case of Sarifabibi Mohammed Ibrahim (supra) which was approved by the Hon’ble Supreme Court, to the facts and circumstances of the case:-

Factors in favour of the Assessee:

(i) The land in question is entered as agricultural land in revenue records and is assessed as such.

(ii) The land is not converted to non-agricultural user.

(iii) The Assessee as well as the purchaser are Agriculturalist.

Factors against the Assessee:

(i) The land is too small for carrying out agricultural operations, considering the fact that the Assessee is basically a trader in betel nuts and carries on agricultural operation in Chikamagalur-Shimoga, a place far away from the land at Agarsure.

(ii) The land is sold at a price comparable to the price fetched by building sites.

(iii) The price is such that no bona fide agriculturist would purchase the same for genuine agricultural operations.

(iv) No Evidence of Agricultural operations carried out have been placed on record. The Assessee was owner of the property in question for 16 years. The evidence filed regarding use of the land for agricultural purpose are sporadic not sufficient to discharge the burden on the Assessee.

As already mentioned, the question whether land was used for agricultural purpose or not to be considered as Agricultural land is a question of fact to be decided on the basis of facts and circumstances of a given case. The decisions cited by the learned counsel for Assessee in the case of Venkateswara Hospital (supra) is a case where the Hon’ble High Court of Madras refused to entertain an appeal on the ground that the question whether a property is Agricultural land or not is essentially a question of fact which action was confirmed by the Hon’ble Supreme Court. The decision does not per se lay down any proposition that classification of land in the revenue record as Agricultural land is conclusive to hold that the land in question is agricultural land, as is sought to be canvassed by the learned counsel for the Assessee before us. As far as the decision of the Hon’ble Madras High Court in the case of Sakuntunala Vedachalam (supra) it was held that the user of adjacent lands for non agricultural purposes cannot be the basis to conclude that the Assessee’s lands cannot be regarded as Agricultural lands. No such conclusion has been drawn in the present case on the basis of potential use for of the land for non agricultural purpose. As far as the decision of Hon’ble Bombay High Court in the case of CIT vs. Smt. Debbie Alemao and Joaquim Alemao,(supra) is concerned, the ratio laid down therein is that where the land is shown in revenue record as agricultural land and no permission was taken for conversion of land, it is immaterial whether any agricultural income is shown in the return or not. The basis on which revenue authorities came to a conclusion that the property is not Agricultural land in the present case is different from the facts of the case decided by the Hon’ble Bombay High Court viz., the fact that agricultural income from the property had not been declared by the Assessee.

If one considers the facts and circumstances of the present case as a whole and an overall view is to be taken in deciding whether the land was an agricultural land, one would come to a conclusion that the property cannot be considered as Agricultural land. Though the circumstance that the land is classified as Agricultural in the revenue records is in favour of the assessee, in our view, the other circumstances pointed out above outweighs all of the circumstances in favour of the Assessee and on the basis of those circumstances, we are inclined to conclude that the property was not an agricultural land. We therefore find no merits in this appeal and hence dismiss the same.

FULL TEXT OF THE ITAT JUDGEMENT

This appeal by the assessee is against the order dated 29.7.2019 of the CIT(Appeals)-11, Bengaluru relating to assessment year 2013-14.

2. The assessee is an individual. Consequent to search u/s. 132 of the Income-tax Act, 1961 [the Act] conducted in the case of assessee on 24.11.2015, proceedings u/s. 153A of the Act were initiated for AY 2013-14 by issue of a notice dated 21.11.2016. The assessee in response to the said notice filed return of income for AY 2013-14 declaring an income of Rs.14,91,410.

3. In the course of assessment proceedings, the AO noticed that assessee received a sum of Rs.2 crores on sale of 0.40.0 hectares (ha) of land at Agarsure Village, Alibaug Taluk, Raigad Dist., Maharashtra (hereinafter referred to ‘the property’ or ‘land’). Since capital gain on sale of the property had not been disclosed in the return of income, the AO called upon the assessee to explain why the same was not declared. The assessee took a stand that the property was an agricultural land and therefore was not a capital asset and capital gain on sale of agricultural land was not exigible to tax. The contentions of the assessee in this regard were as follows:-

• “Land under contention is situated at Agarsure Village, Alibaug Taluk, Raigad District, Maharashtra.
• The subject land is agricultural land both at the time of purchase and sale.
• The assessee is an agriculturist.
• He sold a parcel of land 0.30 Hectares.
• The buyer is another agriculturist.
• The population of the place i.e. Agarsure Village is below the threshold limit in terms of Section. 2(14)(iii)(a).
• The parcel of land is situated nearly 13 kms away from Alibaug, district headquarters. The land parcel is not a capital asset u/s 2(14) of the Act.”

4. It is not in dispute that the property was sold by the assessee to one Mrs. Leena Mascarenhas for a sum of Rs.2 Crores, in the previous year relevant to AY 2013-14. The AO accepted the fact that the assessee was an agriculturist and the land in question was an agricultural land as per the revenue records. He was, however, of the view that the main business of assessee was trading in arecanut. In this regard, the AO also found that the assessee had agricultural land at Moodigere, Chikmagalur District, Karnataka and had been declaring huge income from 144 acres of plantation owned by him over the past several AYs. He also found that the person to whom the assessee sold the land was Mrs.Leena Mascarenhas, wife of Shri Rudoph Mascarenhas and that the assessee and the buyer’s husband carried on several real estate projects in Bengaluru. The AO also found that though the Assessee owned the land in question for more than 16 years, he had not offered any agricultural income from the said land. The AO also observed that the assessee has not brought any material on record to show that he has conducted agricultural operations/activities over the property. The AO also found that the lands in the vicinity of assessee’s land were leisure and entertainment spots where there were lot of holiday homes, home stay and resorts. He also observed that the Mandwa Beach which was a week-end destination for people from Mumbai was less than 1 Km of the Assessee’s property and Kihim Beach, which was also a holiday week-end holiday destination for people from Mumbai, was 1¹/₂ Kms. from the assessee’s property. He also observed that the sale value of the property @ Rs.2 Crores is not a value which is generally offered by persons who are agriculturists and who purchase agricultural land. The AO also observed that the assessee did not bring any documentary evidence on record to suggest basic agricultural operations like tilling, ploughing, weeding, planting, etc. were conducted during the period of ownership nor was there evidence to show that the assessee deployed peasants to conduct agricultural operations.

5. Under section 2(14) of the Act, “capital asset” means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include –

……

(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 according to the last preceding census of which the relevant figures have been published before the 1st 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;”

6. The Assessee pointed out that Agricultural land in India is outside the purview of the definition of capital asset u/s.2(14)(iii) of the Act. The Assessee took a stand that Agricultural activities were carried out on the property and was therefore Agricultural land. The AO did not dispute the fact that the property is not situate within the jurisdiction of a municipality or a cantonment board and therefore did not fall within the exclusion clause (a) mentioned above or that it was within 8 kms from the local limits of any municipality. There is therefore no dispute that the property did not fall within clauses of Sec.2(14)(iii)(a) or (b) of the Act. It needs to be clarified that the mere fact that a land is situate in an area outside the area referred to in clause (a) or (b) of sec.2(14)(iii) of the Act, does not automatically make it an Agricultural land and such land has to be used for agricultural purposes as laid down in several judicial pronouncements.

7. The AO took the view that to be called an agricultural land, the land must have been used for Agricultural purposes. According to the AO, the Assessee did not establish use of the land for agricultural purpose and other circumstances showed that the Assessee’s land was not agricultural land and was sold as a capital asset and not as agricultural land and hence the gain on sale of the property was chargeable to tax as income under the head “Capital Gain”. The following were the relevant observations of the AO:-

“7.16 In summation the assessee’s claim of exemption on sale of land at Agarsure is not admissible u/s 2(14) of the Income Tax Act for the following reasons.

• The assessee has not merely an agriculturist. Rather he has massive trading operation in Arecanut across India.
• Thus the assessee has income from sources other than agricultural operations.
• The buyer is also not a mere agriculturist, but is rather involved in real estate activities.
• The assessee and Shri.Rudoph Mascarenhas are partners in several real-estate projects like M/s. Royal Park (P) Ltd; M/s. Royal Nandi Resorts (P) Ltd etc.
• The assessee has not produced a shred of evidence in favour of conducting agricultural operations at Agarsure Village.
• The Agarsure land parcel is in close proximity to several holiday destinations, both on the seaward side and the landward side.
• The Agarsure land is too small and too far away from the Chikmagalur-Shimoga hub of his operations to sustain a viable agricultural operation.
• The valuation of property in the vicinity is attributed to the entertainment and leisure related nature of land-use.
• The sale value of the property at Rs. 3 Crores per Acre is prohibitively costly for fetching a fair return on investment except through commercial exploitation of the land.

7.17. Thus, a constellation of factors as considered above goes on to suggest that the assessee has not purchased the land at Agarsure with a view to use it for agricultural purposes. In light of the aforementioned facts and circumstances of the case taken together with the decision of the Hon’ble Supreme Court in the case of Sarif Abibi Ibrahim 204 ITR 631 (SC) (1993), the land at Agarsure is treated as non-agricultural. Consequently, the same is brought to tax as long – term capital gains.

The Long Term Capital Gains is worked out as under:”

8. On appeal by the Assessee, the CIT(A) concurred with the view of the AO. Hence this appeal by the Assessee before the Tribunal.

9. The learned counsel for Assessee took us through the reasons assigned by the AO for coming to a conclusion that the property is not Agricultural land. He submitted that none of the factors pointed out by the AO in the order of assessment are sufficient to come to a conclusion that the property is not Agricultural land. He firstly pointed out that the classification of the property in the revenue records is agricultural land and the Assessee has been paying land revenue charges levied by the Government. According to him this factor was a very vital factor in favour of the Assessee. He pointed out that the potential use of the property for non residential purpose due to presence of amusement and recreational activities in the vicinity of the property was an irrelevant consideration. In this regard, he relied on the following passages in the decision of Hon’ble Madras High Court in the case of Mrs.Sakunthala Vedachalam -vs- The Assistant Commissioner of Income Tax, 369 ITR 558 (Madras) :-

“13. According to the Tribunal that if the above tests are applied, the assessees could not satisfy any of the conditions except condition Nos.1,5,11 and 12. The Tribunal held that the assessees could not prove that the lands was actually or ordinarily used for agricultural purposes. This reasoning does not appear to be correct in view of the above-said decision of the Gujarat High Court, wherein it was clearly held in Clause (1) in paragraph 11 that whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue has to be considered for grant of exemption.

14. Thus it is evident from the above, which clearly states that any one of the above factors can be present in a case to qualify for the benefit of classification as agricultural lands. In this case, 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. Therefore, the Tribunal has misconstrued the judgment of the Gujarat High Court (supra) that all conditions laid down in paragraph 11 should be satisfied, which is not a correct interpretation.

15.  …….

16. Once the Tribunal has accepted that the classification of lands as per the revenue records are agricultural lands, which are evidenced by the adangal and the letter of the Tahsildar and satisfies other conditions of Section 2(14) of the Income Tax Act, we are of the view that the Tribunal has misdirected itself as stated above.

17. Yet other reason given by the Tribunal is that the adjacent lands are put to commercial use by way of plots and therefore, the very character of the lands of the assessees is doubted as agricultural in nature. The manner in which the adjacent lands are used by the owner therein is not a ground for the Tribunal to come to a conclusion that the assessees’ lands are 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” is based on mere conjectures and surmises.

18. The plea of the learned standing counsel appearing for the Revenue that there was no agricultural operations prior to the date of sale is of no avail as the definition under Section 2(14) of the Income Tax Act has the answer to such a plea raised. Further more, it is also on record that the lands are agricultural lands classified as dry lands, for which kist has been paid.

19. The view of the assessee is fortified by the decision reported in (1937) 32 ITR 466 (Commissioner of Income-tax V. Raja Benoy Kumar Sahas Roy), wherein, it is held as follows:

“There was authority for the proposition that the expression “agricultural land” mentioned in Entry 21 of List II of the Seventh Schedule to the Government of India Act, 1935, should be interpreted in its wider 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 (See Sarojinidevi v. Shri Krishna Anjanneya Subrahmanyam and other(1) and Megh Raj v. Allah Rakhia (2)).” ”

10. The learned counsel for Assessee also placed reliance on decision of Hon’ble Bombay High Court in the case of CIT vs. Smt. Debbie Alemao and Joaquim Alemao, reported in (2011) 331 ITR 59 (Bom.) wherein it was held that where the land is shown in revenue record as agricultural land and no permission was taken for conversion of land, it is immaterial whether any agricultural income is shown in the return or not, the gains from sale are exempt from taxation.

11. Based on the aforesaid decisions, the ld. counsel for the assessee submitted that the fact that agricultural income was not shown from the property is not of any relevance. His further submission was that the fact that the land in question was capable of being used for agricultural purposes and was used as such by the Assessee. His third submission was that presence of all the factors referred to in the decision of the Hon’ble Supreme Court in the case of Sarifabibi Mohammed Ibrahim & Ors. v. CIT (infra) for considering a land as Agricultural land should not be insisted and only cumulative effect of various circumstances has to be seen. It was submitted by him that the classification of land in the revenue records as ‘agricultural land’ and payment of taxes would be the most relevant factor. In this regard, the ld. counsel for the assessee brought to our notice the tax receipts paid by the assessee which are pages 44 to 49 of assessee’s PB. At page 44 is the receipt dated 30.4.2012 which mentions that grass is the crop over the property in question and at page 45 is another filled Form 12 where it is shown that paddy is cultivated over the land. This receipt is dated 2.6.2004. Another factor pointed out by the ld. counsel for the assessee is that the Sale Deed itself mentions that what was sold by the assessee was not just land, but also standing trees and over the land. According to him, all the aforesaid evidence would be sufficient to come to the conclusion that that the land in question is an agricultural land.

12. Reliance was also placed on the decision of the Hon’ble Supreme Court in CIT v. Venkateshwara Hospital 106 com 263 (SC) wherein a view was taken that merely because adjacent lands were divided into plots for sale, it cannot be concluded that the assessee’s land was not in the nature of agricultural land. The classification of the revenue records was held to be sufficient to conclude that the land in question was agricultural land.

13. The ld. DR reiterated the stand of revenue as contained in the orders of revenue authorities.

14. We have given a careful consideration to the rival submissions. There is no dispute in this appeal that the property that was sold by the Assessee did not fall within clauses of Sec.2(14)(iii)(a) or (b) of the Act. The mere fact that a land is situate in an area outside the area referred to in clause (a) or (b) of sec.2(14)(iii) of the Act, does not automatically make it an Agricultural land and such land has to be used for agricultural purposes as laid down in several judicial pronouncements. The Hon’ble Supreme Court in Sarifabibi Mohmed Ibrahim vs. CIT 204 ITR 631 (SC) laid down the principles to be followed in deciding the question as to what can be construed as “Agricultural land” as under:-

(i) The first proposition laid down in the said decision was, whether a land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this Court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The Court has to answer the question on a consideration of all of them – a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts.

(ii) In as much as agricultural land is exempted from the purview of the definition of the expression “assets”, it is “impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given”. The idea behind exempting the agricultural land is to encourage cultivation of land and the agricultural operations. “In other words this exemption had to be necessarily given a more restricted meaning. What is really required to be shown is :-

(a) the connection with an agricultural purpose and user and not the mere possibility of user of land by some possible further owner or possessor, for an agricultural purpose.

(b) It is not the mere potentiality but its actual condition and intended user which has to be seen for purposes of exemption, (emphasis added).

(c) The person claiming an exemption of any property of his from the scope of his assets must satisfy the conditions of the exemption.

(d) The determination of the character of land, according to the purpose for which it is meant or set apart and can he used, is a matter which ought to be determined on the facts of each particular case.

(e) The fact that the land is assessed to the Land Revenue as agricultural land under the State Revenue Law is certainly a relevant fact but if is not conclusive.

15. The Hon’ble Supreme Court in the case of Smt. Sarifabibi Mohamed Ibrahim and others (supra) approved the tests laid down by the Hon’ble Gujarat High Court and Hon’ble Bombay High Court in the following cases as under:-

“16. The decision of Gujarat High court in Commissioner of Income Tax, Gujarat-II v. Siddharth J. Desai 139 I.T.R. 628, relied upon strongly by the learned Counsel for the appellant, reviewed the several earlier decisions of the Gujarat High Court as well as the decision of this Court in Begumpet Palace and has evolved the following 13 factors/indicators applying which the question has to be answered. The 13 factors are the following :-

(1) Whether the land was classified in the revenue records as agricultural 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 agricultural?

(9) Whether the land itself was developed by plotting and providing 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 was for non-agricultural or agricultural use?

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

(13) Whether an agriculturist would purchased 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.

17. In Commissioner of Income-Tax v. V.A. Trivedi 172 I.T.R. 95, a Division Bench of the Bombay High Court, of which one of us (S.P. Bharucha, J.) was a member, considered this question again. In this case the assessee had purchased the land of an extent of seven acres in February 1966. The land was covered by the Nagpur Improvement Trust Scheme. In August 1966 he obtained permission to convert the said land to non-agricultural use. In June 1968 he entered into an agreement with a Housing Cooperative Society to sell three acres out of it. The sale-deed was executed in October 1968. In this assessment proceedings the assessee claimed that the surplus income arising from the sale of land was exempt from tax inasmuch as it was agricultural land at the time of its sale. The matter reached the High Court. The Division Bench referred to several facts established from the record. Some of them supported the assessee’s stand while some others militated against his contention. The facts found in favour of the assessee were: (1) at the time of its purchase by the assessee, the Ajni land was agricultural land; (2) it had been under cultivation by the assessee till the date of its sale, (3) it continued to be assessed to land revenue as agricultural land until it was sold, (4) the intention of the assessee, when he purchased it, was to acquire agricultural land for agricultural purposes, (5) the assessee’s use of it was the normal use by an agriculturist, (6) it was nor within any Town Planning Scheme, and (7) no materials has been produced to show any development or building activity surrounding it. The facts which militated against the assessee’s stand were three in number – namely: (1) the location or the Ajni land within the Corporation and the improvement trust limits; (2) the action of the assessee in obtaining on August 8, 1966, permission to convert the user of the Ajni land to non-agricultural purposes, and (3) the agreement to sell and the sale of the Ajni land for non-agricultural, i.e., building purposes.

18. The Bench observed that to ascertain the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the relevant date and further whether on the relevant date the land was intended to be put to use for agricultural purposes for a reasonable span of time the future. Examining the facts of the case from the said point of view, the Bench held that the agreement entered into by the assessee with the Housing Society is the crucial circumstance since it showed that the asses-see agreed to sell the land to Housing Society admittedly for utilisation for non-agricultural purposes.

The sale-deeds were executed four months after the agreement of sale and even if any agricultural operations were carried on within the said span of four months, – the Bench held – it was evidently in the nature of a stop-gap arrangement. On the date the land was sold, the Bench held, the land was no longer agricultural land which is evident from the fact that the assessee had obtained permission even in August 1966 to convert the said land to non­agricultural purposes.”

16. In the light of the principles laid down as above let us examine the facts of the present case to decide the case as to whether the land that was sold by the Assessee was “Agricultural land”. In the present case, the claim of the Assessee that agricultural operations were carried out over the property and the property was actually used for agricultural purpose was sought to be established by relying on the classification of the property in revenue records. The Revenue contends that there is no evidence of the Assessee having carried out agricultural activities over the property. The Assessee has not established as to how agricultural activities were carried out and what expenses were incurred in carrying out agricultural operations over the property. The revenue also contends that the Assessee has not declared any income from Agriculture from the property in question. There is no evidence of availability of Agricultural produce and how they were dealt utilized. The Revenue also contends that the burden of proof that the property was agricultural land at the time of transfer to claim exemption was on the Assessee. As already observed, the question whether the land was Agricultural land has to be decided on facts of each case and decided cases are only guidelines to be kept in mind. Facts and all the circumstances are to be considered as a whole and an overall view is to be taken in deciding whether the land was an agricultural land. In a given case, large number of circumstances may be indicative of agricultural character, but one circumstance may outweigh all of them and on its basis the land would be held to be a non-agricultural land.

17. We will now apply the tests laid down by the Hon’ble Gujarat High Court in the case of Sarifabibi Mohammed Ibrahim (supra) which was approved by the Hon’ble Supreme Court, to the facts and circumstances of the case:-

18. Factors in favour of the Assessee:

(i) The land in question is entered as agricultural land in revenue records and is assessed as such.

(ii) The land is not converted to non-agricultural user.

(iii) The Assessee as well as the purchaser are Agriculturalist.

19. Factors against the Assessee:

(i) The land is too small for carrying out agricultural operations, considering the fact that the Assessee is basically a trader in betel nuts and carries on agricultural operation in Chikamagalur-Shimoga, a place far away from the land at Agarsure.

(ii) The land is sold at a price comparable to the price fetched by building sites.

(iii) The price is such that no bona fide agriculturist would purchase the same for genuine agricultural operations.

(iv) No Evidence of Agricultural operations carried out have been placed on record. The Assessee was owner of the property in question for 16 years. The evidence filed regarding use of the land for agricultural purpose are sporadic not sufficient to discharge the burden on the Assessee.

20. As already mentioned, the question whether land was used for agricultural purpose or not to be considered as Agricultural land is a question of fact to be decided on the basis of facts and circumstances of a given case. The decisions cited by the learned counsel for Assessee in the case of Venkateswara Hospital (supra) is a case where the Hon’ble High Court of Madras refused to entertain an appeal on the ground that the question whether a property is Agricultural land or not is essentially a question of fact which action was confirmed by the Hon’ble Supreme Court. The decision does not per se lay down any proposition that classification of land in the revenue record as Agricultural land is conclusive to hold that the land in question is agricultural land, as is sought to be canvassed by the learned counsel for the Assessee before us. As far as the decision of the Hon’ble Madras High Court in the case of Sakuntunala Vedachalam (supra) it was held that the user of adjacent lands for non agricultural purposes cannot be the basis to conclude that the Assessee’s lands cannot be regarded as Agricultural lands. No such conclusion has been drawn in the present case on the basis of potential use for of the land for non agricultural purpose. As far as the decision of Hon’ble Bombay High Court in the case of CIT vs. Smt. Debbie Alemao and Joaquim Alemao,(supra) is concerned, the ratio laid down therein is that where the land is shown in revenue record as agricultural land and no permission was taken for conversion of land, it is immaterial whether any agricultural income is shown in the return or not. The basis on which revenue authorities came to a conclusion that the property is not Agricultural land in the present case is different from the facts of the case decided by the Hon’ble Bombay High Court viz., the fact that agricultural income from the property had not been declared by the Assessee.

21. If one considers the facts and circumstances of the present case as a whole and an overall view is to be taken in deciding whether the land was an agricultural land, one would come to a conclusion that the property cannot be considered as Agricultural land. Though the circumstance that the land is classified as Agricultural in the revenue records is in favour of the assessee, in our view, the other circumstances pointed out above outweighs all of the circumstances in favour of the Assessee and on the basis of those circumstances, we are inclined to conclude that the property was not an agricultural land. We therefore find no merits in this appeal and hence dismiss the same.

22. In the result, the appeal is dismissed.

Pronounced in the open court on this 4^th day of September, 2020.