MUMBAI, JAN 18, 2013: THE issue before the Bench is - Whether when the assessee is given the option to convert the land into industrial unit after approval, which was obtained after a long gap, the profits from sale of such converted land, treated as stock-in-trade is to be treated as capital gains - Whether such land is to be treated as agricultural prior to its conversion into industrial unit. And the verdict goes in favour of the assessee.

Facts of the case

The assessee Company is engaged in the business of manufacturing of specialized chemicals and in development of real estate and was owner of certain land allotted to it by Govt of Maharastra. The land was allotted to the assessee on condition that the assessee will obtain necessary approval from land revenue authorities for using the land for industrial purpose within the stipulated time. After obtaining approval the assessee converted the land into stock in trade and then sold the same and offered the gain as capital gain. The AO during the course of assessment proceedings observed that the assessee had converted the land after a long gap and at the relevant time the land was rural agricultural land and hence the same could not have been converted into stock in trade. After considering the reply of assessee the AO held against the assessee and adopted the value of land as per stamp duty value. The AO had also referred the matter to the DVO but could not obtain the report of DVO in time. Before CIT (A) assessee pointed out that assessee had converted the land into stock in trade on 31.03.2000 and merely because the approval of the Govt was obtained at a later date it did not mean that the assessee was debarred from conversion of such land. Assessee also pointed out that in AY 2000-01 the then AO had accepted the conversion of land into stock in trade. The CIT(A) allowed the appeal of the assessee.

On appeal, the ITAT held that,

++ the claim of the assessee that the land was not meant for agricultural use nor any agricultural activity had been carried on by the assessee on the said land after the date of acquisition has not been controverted before us. The agricultural land has not been defined in the Act. The issue as to what would constitute agricultural land had come up for consideration by the Hon'ble Supreme Court in the case of CWT Vs Officer-in-charge (Court of Wards). The Hon'ble Supreme Court held that for a land to be agricultural, it was required to be shown its connection with agricultural purpose and user and not merely possibility of usage by some future owner. The Supreme Court also held that the entry in the revenue records though prima facie constituted good evidence but was not conclusive in determining the true nature of land. In the present case, no connection of the land to the agricultural purposes or user is established. In fact, land was not meant for agricultural purposes and had also not been used by the assessee for agricultural purposes. Thus, even though the land had not been converted into non-agricultural it remained non-agricultural land. The conversion into non-agricultural land was necessary for the purpose of usage of the land for industrial purpose and merely because the land was not converted the same could not be considered as agricultural;

++ argument of the DR that since land was beyond Municipal limits the same has to be considered as agricultural can not be accepted as it is not the location of the land but its connection with agricultural purpose and user which makes it agricultural. The ld. DR has also argued that the judgment of Hon'ble Supreme Court in case of CWT Vs Officer-in-charge (Court of Wards), which was rendered in connection with the Wealth Tax Act can not be applied in case of Income tax Act. The term “agricultural land” has not been defined either in the Income tax Act or in Wealth Tax Act and under both Acts it is entitled for exemption from taxation. Therefore, tests laid down by the Hon'ble Supreme Court to determine the true nature of land in a case relating to Wealth tax Act will be equally applicable in case of Income tax Act. Reliance by the DR on the judgment of Hon'ble High Court of Bombay in case of CIT vs. State Bank of India, in which it was held that provisions of a statute could not be interpreted with respect to the provisions of another statute, is not applicable to the facts of the present case as in this case we are not concerned with the interpretation of the provisions of the statute. We are concerned with the definition of “agricultural land” which has not been defined in either of the Acts;

++ in view of the foregoing discussion we hold that the land was non-agricultural on the date of conversion on 31.3.2000 and, therefore, a capital asset. The conversion into stock-in-trade was supported by Board Resolution for which no dispute has been raised. The assessee was also involved in real estate activities and therefore conversion of the non-agricultural land has to be considered as stock-in-trade of the business of the assessee. The conversion of land into stock-in-trade had been duly declared by the assessee in the return for the assessment year 2000-01. The notes to the audited accounts also mentioned this fact and differences between cost of land and market value had been credited into capital reserve. We therefore, see nothing illegal about the conversion of land by the assessee into stock-in-trade.

(See 2013-TIOL-63-ITAT-MUM)