{"id":177396,"date":"1996-03-27T00:00:00","date_gmt":"1996-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-vs-ms-gemini-pictures-on-27-march-1996"},"modified":"2016-08-09T05:51:45","modified_gmt":"2016-08-09T00:21:45","slug":"commissioner-of-income-vs-ms-gemini-pictures-on-27-march-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-income-vs-ms-gemini-pictures-on-27-march-1996","title":{"rendered":"Commissioner Of Income … vs M\/S. Gemini Pictures … on 27 March, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Income … vs M\/S. Gemini Pictures … on 27 March, 1996<\/div>\n
Equivalent citations: 1996 AIR 1522, \t\t 1996 SCC (4) 216<\/div>\n
Author: B Jeevan Reddy<\/div>\n
Bench: Jeevan Reddy, B.P. (J)<\/div>\n
           PETITIONER:\nCOMMISSIONER OF INCOME TAX,MADRAS\n\n\tVs.\n\nRESPONDENT:\nM\/S. GEMINI PICTURES CIRCUITPRIVATE LIMITED\n\nDATE OF JUDGMENT:\t27\/03\/1996\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nAHMAD SAGHIR S. (J)\n\nCITATION:\n 1996 AIR 1522\t\t  1996 SCC  (4) 216\n JT 1996 (3)   665\t  1996 SCALE  (3)197\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nB.P. JEEVAN REDDY, J,
\n     These appeals  arise from\tthe judgment  of the  Madras
\nHigh Court answering the two questions referred to it at the
\ninstance  of   the  respondent-assessee\t in  favour  of\t the
\nassessee and against the Revenue. The two questions are:\n<\/p>\n
     (i) Whether,  an the  facts and  in
\n     the circumstances\tof the\tcase the
\n     lands  sold   during  the\tyear  of
\n     account was  not ‘Agricultural land
\n     in\t India’\t  during  the\tyear  of
\n     assessment and  hence not liable to
\n     be excluded  from the definition of
\n     the words ‘capital Asset’?\n<\/p><\/blockquote>\n
     ii) Whether,  the surplus\trealized
\n     on the  sale of land in the year of
\n     account is\t not exempt from capital
\n     gains?”<\/p><\/blockquote>\n
     The property  known as  Spencer’s Hotel  comprising  70
\nacres, 16  grounds* in\t825 sq.ft.  situated on\t Mount Road,
\nMadras was  purchased by  one Gulab  Bhai Mukund Rao Rane in
\n1944. Rane sold an extent of 79 grounds 242 sq.ft.(roughly 4
\nacres and  odd) out of it to the assessee under a registered
\nsale-deed dated\t October 27,  1950 for\ta  consideration  of
\nRs.5,53,705\/-.\tThe   extent  purchased\t  by  the   assessee
\ncomprised the  hotel building  as well. After purchasing the
\nsaid extent,  they constructed\ttwo buildings over an extent
\nof 20 grounds towards the north. A common road of a width of
\n265 ft.\t leading from  Mount Road  was also  formed  at\t the
\nwestern extremity  of the  property; the  road took away 7.6
\ngrounds. An  extent of\t9.8 grounds was kept as frontage for
\nthe two\t buildings. Excluding  the  area  covered  by  three
\nbuildings, their frontage and the road,\n<\/p>\n
————————————————————
\n*In the\t city of  Madras, we  are told,\t a ground  means  an
\narea\/plot admeasuring 266 sq.yards.\n<\/p>\n
an extent  of 39.1  grounds was\t still left  vacant. On this
\nextent, the  assessee was raising bananas. From 1962, it had
\nbeen growing vegetables thereon.\n<\/p>\n
     In the years 1966-67, the assessee executed three sale-
\ndeeds. 19.74  grounds was  sold to  India Cements Limited on
\nApril 29,  1966. 10.05\tgrounds was sold to Imperial Tobacco
\nCompany of  India Limited on April 29, 1966 and 3.85 grounds
\nwas sold  to Handicrafts  Emporium on  March 27,  1967.\t All
\nthese  sale  deeds  were  in  respect  of  the\tvacant\tland
\ncomprised in  39.1 grounds  aforesaid.\tIn  the\t proceedings
\nrelating to  its assessment for the Assessment Year 1967-68,
\nthe  assessee\tcontended  that\t the  land  sold  under\t the
\naforesaid three sale-deeds, being an agricultural land, does
\nnot constitute\t‘capital asset’\t and, therefore,  the profit
\narising from  its sale\tis not exigible to tax under Section
\n45 of  the Income-Tax  Act, 1961.  The\tIncome\tTax  Officer
\nrejected the  contention holding  that having  regard to the
\nlocation and  the physical  characteristics of the land, the
\ndevelopment and\t use of the adjoining lands and the price at
\nwhich and the purpose for which it was sold, go to show that
\nit was\tnot an\tagricultural land.  On appeal, the Appellate
\nAssistant Commissioner affirmed the view taken by the Income
\nTax Officer.  On further appeal to the Tribunal, there was a
\ndifference of  opinion between the Accountant Member and the
\nJudicial  Member.   The\t Accountant  Member  attached  great
\nimportance to  the  fact  that\tthe  land  in  question\t was
\nactually under\tcultivation on\tthe sale  and held  that the
\nother\tcircumstances pointed  out by the Income Tax Officer
\nand the Appellate Assistant Commissioner do not detract from
\nthe position  that the\tland was  actually being  used as an
\nagricultural land  on the  date of  its sale.  The  Judicial
\nMember on  the other  hand held\t that having  regard to\t the
\nlocation, it’s\tprice, the fact that it was registered as an
\nurban land  in the  Municipal records  and the\tpurpose\t for
\nwhich land  was purchased  would all  go to show that it was
\nnot an\tagricultural land. In view of the said difference of
\nopinion, the  matter was  referred to  the Vice President of
\nthe Tribunal.  The Vice\t President agreed  with the Judicial
\nMember. The  Vice President observed that the actual user is
\nnot conclusive.\t He held  that an urban land does not become
\nan agricultural land merely because some cultivation is done
\nthereon. He  referred  to  several  relevant  circumstances,
\nviz.,(a) the environment and situation; (b) the intention of
\nthe assessee  at the  time of  purchase; (c)  the nature and
\ncharacter of  the land; (d) the previous, present and future
\nuse to\twhich the  land is  put; (e) its potential value and\n<\/p>\n
(f) the fact that it was registered as municipal land in the
\nmunicipal records  and not recorded as agricultural land and
\nheld that  it cannot  be treated  treated as an agricultural
\nland. Thereupon\t the aforesaid\ttwo questions  were referred
\nfor the\t opinion of  the High  court at\t the instance of the
\nassessee. The  High Court  looked to the actual user. of the
\nland in\t the main  and on  that basis held the land to be an
\nagricultural land.  In this  appeal, the  view taken  by the
\nHigh Court is questioned.\n<\/p>\n
     The land  is situated  within the\tlimits of the Madras
\nMunicipal Corporation. It is located on the Mount Road which
\nis the main artery of the city and its business Center. Even
\nwhen the  assessee purchased  it in  1950, there  was  hotel
\nbuilding located in the said land. In the municipal records,
\nthe property was registered as urban land and urban land tax
\nwas being  levied thereon. It bore the municipal door number
\n“151- Mount  Road, Madras.”  After purchasing  the land, the
\nassessee put  up two  more building  thereon in the northern
\nportion which  together occupied  an extent  of\t 20  grounds
\nwhich means  that they\twere substantially  large buildings.
\nOne of\tthem was  occupied  by\tthe  assessee  for  its\t own
\nbusiness purposes  and the  other was occupied by its sister
\nconcern. After\tlaying a  road and reserving certain portion
\nto serve  as frontage for the buildings, an area of about 39
\ngrounds was remaining open. The assessee was raising bananas
\nthereon until  1962 and thereafter vegetables until the year
\n1966-1967 when\tit was sold to three parties as aforestated.
\nIt is  significant to  notice that  even when  the  assessee
\npurchased an  extent of\t about 4  acres of land with a hotel
\nbuilding in  1950, for\ta consideration\t of 5.53  lakhs,  it
\ncould not  have been  for  the\tpurpose\t of  raising  banana
\nplantation or  vegetables. And\twhen it\t was sold in 1966-67
\n(which is  the relevant\t point of  time for our purposes) it
\nwas sold  at the  rate of  about Rs.  260\/-  per  sg.  Yard.
\nNeither the sale-deed under which the assessee purchased the
\nsaid land  nor the  sale deeds\texecuted by  it\t in  1966-67
\ndescribe the  land as  an agricultural land. It could not be
\nso described for the simple reason that it was registered in
\nthe Municipal  records as  an urban  land and Urban Land Tax
\nwas levied  thereon. After purchasing the lands the assessee
\nitself constructed  two large buildings thereon. Indeeds the
\nbuildings were\tbeing  used  for  non-residential  purposes.
\nIndeed, the  building were  being used\tfor  non-residential
\npurpose. The land is situated on Mount Roads Madras which is
\nthe most  important and\t the busiest  thorough fare  in\t the
\ncity. The  land is surrounded on all sides by industrial and
\ncommercial buildings. No  agricultural operations were being
\ncarried on  any land  nearby.  In  the\tface  of  the  above
\ncircumstances, the  mere fact\tthat  vegetables  were being
\nraised thereon\tat the time of\tthe sale  or for  some years
\nprior thereto  does not change the  nature and\tcharacter of
\nthe land.  Obviously, it  was only  a stop-gap\tactivity. It
\nwas not\t a true\t reflection of the  nature and\tcharacter of
\nthe land.  It is  a matter of common knowledge\tthat in\t the
\nheart of  New Delhi,  there are houses with  large compounds
\nwherein a   portion  of the  open land is  used for  raising
\nvegetables.\tThat  does     not     make  those  portions
\nagricultural   lands.\tIn  the\t case  of  the assessee too,
\nthe  raising  of  vegetables  was  a  stopgap activity until
\nthe assessee   found  a\t  better   use\t for\tit,  whether
\nconstruction   of buildings   or  sale.\t  It  is    well  to
\nremember that  the question  whether a particular land is ah
\nagricultural land  has to  be decided  on a  totality of the
\nrelevant facts and circumstances. There may be circumstances
\nfor and\t against. They\thave to\t be weighed  together and  a
\nreasonable decision arrived at. One has to take a realistic-
\nview and  see how were the persons selling and purchasing it
\nunderstood  it.\t Is  it\t believable  that  in  1966-67,\t the
\nassessee  and\tthe  aforesaid\tpurchasers  were  under\t the
\nimpression   that   they   were\t  selling   and\t  purchasing
\nagricultural land?  Did they  consider and treat the land as
\nagricultural land?  The answer is too evident to call for an
\nelucidation.\n<\/p>\n
     Certain decisions\thave been cited before us by counsel
\nfor both  the parties in support of their respective stands.
\nIt must,  however, be  remembered that facts of no two cases
\nwill be\t identical. The\t tests evolved\tby the courts are in
\nthe nature of guidelines. No hard and fast rules can be laid
\ndown in\t the matter,for\t the reason that it is essentially a
\nquestion of  fact. Even\t sos a\tbrief reference to the cases
\ncited would  be in  order. Strong reliance was placed by Sri
\nAruneshwar Gupta  upon two  decisions of  the  Gujarat\tHigh
\nCourt in  Gordhanbhai Kahandas\tDalwadi v.  Commissioner  of
\nIncome-Tax, Gujarat  [(1981) 127  I.T.R. 671].\tIn the first
\ncase, the  land was  registered as  agricultural land in the
\nrevenue records\t and land revenue was being paid thereon. No
\npermission was\ttaken for  converting it to non-agricultural
\nuse before  the date of wale. Potential non-agricultural use
\nor the fact that development had taken place in the vicinity
\nof the\tlands it  was helds do not militate against the fact
\nthat it\t was an agricultural land. In the next case too, the
\nland was  registered as\t an agricultural land and permission
\nto convert  it into  non-agricultural land  was not obtained
\nbefore the  date of  sale. In the circumstances, it was held
\nthat mere  fact that  it was  sold  at\ta  high\t price\tonly
\nindicates its  potentiality for\t non-agricultural use.\tOn a
\nconsideration of  entirety of the circumstances, it was held
\nthat it was an agricultural land.\n<\/p>\n
     A recent  decision of  this Court\tin Sarifabibi Mohmed
\nIbrahim and Others v. Commissioner of Income Tax<\/a> [(1993) 204
\nI.T.R. 631],  rendered by  a  Bench  comprising\t one  of  us
\n(B.P.Jeevan Reddy, J.) is relied upon by the learned counsel
\nfor Revenue.  The Bench\t observed: “Whether  a\tland  is  an
\nagricultural land  or not is essentially a question of fact.
\nSeveral tests  have been  evolved in  the decisions  of this
\ncourt and  the High  Courts, but all of them are more in the
\nnature of  guidelines. The  question has  to be\t answered in
\neach case  having regard  to the  facts and circumstances of
\nthat case.  There may  be factors  both for  and  against  a
\nparticular point  of view.  The\t court\thas  to\t answer\t the
\nquestion on  a consideration  of all of them – a process  of
\nevaluation. The\t inference has\tto be  drawn on a cumulative
\nconsideration of  all the relevant facts.” Several judgments
\nof this Court and the High Courts were referred to including
\na judgment  of the  Bombay High\t Court\tin  Commissioner  of
\nIncome Tax  v. V.A.  Trivedi [(1988)  172 I.T.R.  95]. On  a
\nconsideration of  the factors  for and\tagainst, the  Bombay
\nHigh Court  observed in\t V.A. Trivedi  that far ascertaining
\nthe true  character and\t nature af the land, it must be seen
\nwhether it has been put to use for agricultural purposes for
\na reasonable  span of  time prior  to the  date of  sale and
\nfurther whether on the date of sale the land was intended to
\nbe put\tto use\tfor agricultural  purposes for\ta reasonable
\nspan of\t time in  future. Examining  the case  from the said
\npoint af  view, the  High Court\t held that the fact that the
\nagreement af  sale was\tentered into  by the assessee with a
\nhousing society to of crucial relevance since it showed that
\nthe assessee had agreed to sell the land for admittedly non-
\nagricultural purposes.\tThe ratio  of the  said decision was
\napproved in Sarifabibi.\n<\/p>\n
     We do  not think  it necessary  to multiply  the cases,
\nsince, in  our respectful  opinion, no\tother conclusion  is
\nreasonably possible  in the facts of the case before us than
\nthe one\t arrived at  by us.  All the three authorities under
\nthe Act\t too arrived  at the  same  conclusion.\t With  great
\nrespect to  the learned\t Judges of  the High  Court, we find
\ntheir wholly unsustainable and unacceptable.\n<\/p>\n
     The appeal\t is accordingly allowed, the judgment of the
\nHigh Court is set aside and the two questions referred under
\nSection 256(1)\tare answered  in favour\t of the\t Revenue and
\nagainst the  assessee. The  appellant shall  be entitled  to
\ntheir costs-Rupees ten thousand consolidated.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Income … vs M\/S. Gemini Pictures … on 27 March, 1996 Equivalent citations: 1996 AIR 1522, 1996 SCC (4) 216 Author: B Jeevan Reddy Bench: Jeevan Reddy, B.P. (J) PETITIONER: COMMISSIONER OF INCOME TAX,MADRAS Vs. RESPONDENT: M\/S. GEMINI PICTURES CIRCUITPRIVATE LIMITED DATE OF JUDGMENT: 27\/03\/1996 BENCH: JEEVAN REDDY, B.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-177396","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Income ... vs M\/S. 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