- (1.) These appeals arise from the judgment of the Madras high court answering the two questions referred to it at the instance of the respondent-assessee in favour of the assessee and against the revenue. The two questions are: "i)Whether, on the facts and in the circumstances of the case the lands sold during the year of account was not 'Agricultural land in India' during the year of assessment and hence not liable to be excluded from the definition of the words capital Asset ii) Whether, the surplus realised on the sale of land in the year of account is not exempt from capital gains -
(2.) The property known as Spencer's Hotel comprising 70 acres, 16 grounds in 825 sq. ft. situated on Mount Road, Madras was purchased by one Gulab Bhai Mukund Rao Rane in 1944. Rane sold an extent of 79 grounds 242 sq. ft. (roughly 4 acres and odd) out of it to the assessee under a registered sale-deed dated October 27, 1950 for a consideration of Rs. 5,53,705/-. The extent purchased by the assessee comprised the hotel building as well. After purchasing the said extent, the assessee constructed two buildings over an extent of 20 grounds towards the north. A common road of a width of 25 ft. leading from Mount Road was also formed at the western extremity of the property; the road took away 7.6 grounds. An extent of 9.8 grounds was kept as frontage for the two buildings. Excluding the area covered by three buildings, their frontage and the road, an extent of 39.1 grounds was still left vacant. On this extent, the assessee was raising bananas. From 1962, it had been growing vegetables thereon.
(3.) In the years 1966-67, the assessee executed three sale-deeds. 19.74 grounds was sold to India Cements Limited on April 29, 1966. 10.5 grounds was sold to Imperial Tobacco Company of India Limited on April 29, 1966 and 3.85 grounds was sold to Handicrafts Emporium on March 27,1967. All these sale deeds were in respect of the vacant land comprised in 39.1 grounds aforesaid. In the proceedings relating to its assessment for the Assessment Year 1967-68, the assessee contended that the land sold under the aforesaid three sale-deeds, being an agricultural land, does not constitute capital asset and, therefore, the profit arising from its sale is not exigible to tax under Section 45 of the Income-tax Act, 1961. The Income-tax Officer rejected the contention holding that having regard to the location and the physical characteristics of the land, the development and use of the adjoining lands and the price at which and the purpose for which it was sold, go to show that it was not an agricultural land. On appeal, the appellate Assistant Commissioner affirmed the view taken by the Income-tax Officer. On further appeal to the Tribunal, there was a difference of opinion between the Accountant Member and the Judicial Member. The Accountant Member attached great importance to the fact that the land in question was actually under cultivation on the date of the sale and held that the other circumstances pointed out by the Income-tax Officer and the Appellate Assistant Commissioner do not detract from the position that the land was actually being used as an agricultural land on the date of its sale. The Judicial Member on the other hand held that having regard to the location, it's price, the fact that it was registered as an urban land in the Municipal records and the purpose for which land was purchased would all go to show that it was not an agricultural land. In view of the said difference of opinion, the matter was referred to the Vice President of the Tribunal. The Vice President agreed with the Judicial Member. The Vice President observed that the actual user is not conclusive. He held that an urban land does not become an agricultural land merely because some cultivation is done thereon. He referred to several relevant circumstances, viz., (a) the environment time and situation; (b) the intention of the assessee at the time of purchase; (c) the nature and character of the land; (d) the previous, present and future use to which the land is put; (e) its potential value and (f) the fact that it was registered as municipal land in the municipal records and not recorded as agricultural land and held that it cannot be treated as an agricultural land. Thereupon the aforesaid two questions were referred for the opinion of the High Court at the instance of the assessee. The High Court looked to the actual user of the land in the main and on that basis held the land to be an agricultural land In this appeal, the view taken by the High Court is questioned.;