P. Mohanarajan, J. M. - (1.) THESE appeals are by the assessee directed against the orders of the learned Commissioner (Appeals)-II, Bangalore, dated 10-2-2004.
(2.) We have heard both sides and perused the records. The assessee-HUF declared capital gains on sale of plantation land and claimed exemption from taxation contending that the assets sold was agricultural land and accordingly was not a capital asset as defined under section 2(14) of the Income Tax Act (hereinafter referred to as 'the Act'). Apart from capital gains other income/loss was also declared in the returns for the relevant years. For the assessment year 1995-96 original return was filed belatedly and was reaularized by issue of notice under section 148 of' the Act. For the assessment years 1995-96 to 1997-98 original returns filed were processed under section 143(1)(a). Subsequently notices under section 148 were issued to reopen the assessments. Thereafter the assessments were completed by the assessing officer denying the claim of the assessee. On appeal before the learned Commissioner (Appeals) the assessee submitted that the finding of the Tribunal for the assessment year 1998-99 is required to be followed as the facts were identical. Further all the evidences furnished before the Tribunal were available to the assessing authority and accordingly there could be no deviation from the order of the Tribunal. The learned Commissioner (Appeals) has sought for a remand report from the assessing authority on the basis of the submissions made by the assessee. The learned Commissioner (Appeals) after obtaining the remand report held as follows: "4.4 As has been mentioned above the copy of the above remand report was sent to the appellant for further comments and evidences. But it is seen that in his written response filed on 2.04 the appellant has repeatedly failling back upon is repeated arguments during the course of the assessment and the appellate proceeding by citing the comparable paragraphs of the decision of the Hon'ble ITAT in his case for the assessment year 1998-99. Conveniently the appellant has evaded to answer the outcome and comments of the assessing officer emanating from the physical inspection of the land and plots under consideration by the assessing officer and his consequent observations and arguments that were certainly not the subject matter of consideration or argument before the Hon'ble Tribunal relied upon by the appellant.
(3.) 5 Under the facts and circumstances of the case it can thus be conclusively said that the ratio of the Hon'ble ITAT in its decision in the case of the Appellant referred to above does not apply in view of the additional facts and arguments that have been thrown up for these assessment years under consideration. In any case each assessment year is independent and therefore it is not necessary that the facts and circumstances as well as arguments and evidences independent of each other would necessarily mean a commonality of decision and applicability. Therefore, considering the facts and arguments freshly emanating from the Remand Report referred to above it is felt that the Appellant's arguments cannot be accepted. Therefore, there is no need to interfere with the assessment orders for all the assessment years under consideration and the appeals are dismissed." Thus the assessments were upheld. Hence, the assessee is in appeal before this Tribunal. 4. The learned counsel Shri Parthasarathi submitted that the facts for the relevant years were in all force with the facts as found for the assessment year 1998-99. The assessing authority and the learned Commissioner (Appeals) tried to distinguish the facts by alleging that on inspection there were houses, there were roads and electrification etc., which would go to show that there was a planned layout and accordingly there was an activity in the nature of adventure. it was alleged that these facts were not available to the Tribunal when the order for assessment year 1998-99 was passed by the Hon'ble Tribunal. It was further submitted that these allegations were without substance since all these facts were available to the Tribunal when the order was passed for the assessment year 1998-99. In fact, the Tribunal had gone into the detail and also perused all the evidences before drawing conclusion as to the nature of activity of the assessee. It was also brought to the notice of the Tribunal that construction of houses in the agricultural land by the prospective buyers was of no consequence as far as the assessee was concerned when the assets were sold and it was an undisputed fact that the assets sold were only agricultural land though in small segments. The assessee had not even converted the land and at the same time, the assessee had not discontinued the agricultural activity. The inspection done by the Inspector of revenue in 2003 when reassessments were made for the relevant years was of no consequence since the situation as relevant to the assessment year were not available on account of various developments and there was no conclusive evidence in the hands of the revenue to show that the assessee had developed the land by itself with a motive to carry on the activity of business. On the other hand, it was established that the assessee had lands and the assessee had loans which were required to be discharged and in the circumstances the assessee was forced to sell the lands and what was sold was also agricultural land though in small segments in order to augment more funds and this activity could never be held to be a business activity or activity in the nature of business. Further, reliance was placed on the order of the Tribunal in the assessee's own case and also the judgment of the Supreme Court in the case of CIT v. H. HoIck Larsen (1986) 160 ITR 671 (SC).;