P.D Dinakaran, J.:— The above tax case appeals are directed against the order of the Income-tax Appellate Tribunal in W.T.A Nos. 12 and 13.Mds/2004, dated March 7, 2005.
2. The Revenue is the appellant. The assessment years involved are 1997–98 and 1998–99. The assessee filed returns of wealth admitting the wealth of Rs. 15,000 and Rs. 25,000. He owns 2.25 acres of agricultural land within the Corporation of Tirunelveli and its value is Rs. 78,75,000. The assessee claimed exemption under section 2(ea) of the Wealth-tax Act (hereinafter referred to as “the Act”) on the ground that those lands are agricultural lands and construction of building thereon is not permissible under the Urban Land Ceiling Act. The Assessing Officer found that the land has the potential to be used for non-agricultural purposes subject to prior permission from the concerned authorities. The Assessing Officer also found that a hospital building has been constructed on the adjacent land. Therefore, the Assessing Officer decided to assess the said land also for taxable purposes and brought the value of Rs. 78,75,000 to tax. Aggrieved by the assessment order dated February 7, 2001, the assessee filed an appeal before the Commissioner of Income-tax (Appeals) contending that on the date of valuation, the land was not put to commercial use and no construction had taken place on that date and as such, the Assessing Officer ought to have excluded the value of the land for both the assessment years. The Commissioner of Income-tax (Appeals) found that the stand taken by the Assessing Officer is not correct, since as on the relevant valuation date, the assessee had not permitted to construct any building and as such, the land is clearly outside the purview of the urban land and therefore, he is not liable to wealth-tax. Accordingly, the Commissioner of Income-tax (Appeals) directed the Assessing Officer to exclude the said valuation for the purpose of assessment under the Wealth-tax Act.
3. On further appeal to the Income-tax Appellate Tribunal by the Revenue, the Tribunal found that it is the discretion of the assessee to use the land in the way he likes and the Assessing Officer cannot recommend the user of the land, which was owned by the assessee to a particular use. The Tribunal also found that admittedly, the land in question is an agricultural land, as on the date of valuation, it was not put to commercial use and there was no construction at all and dismissed the appeal.
4. Aggrieved against the same, the Revenue has preferred these appeals raising the following substantial question of law:
“Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the value of 2.25 acres of the land situated within the corporation limit of Tirunelveli is exempt from the wealth-tax as agricultural land, contrary to the provisions of section 2(ea), Explanation (b) of the Wealth-tax Act?”
5. It is seen from the records that for the assessment years 1997–98 and 1998–99, the assessee filed returns of wealth on February 9, 1998 and August 21, 1998 admitting wealth of Rs. 15,000 and Rs. 25,000 and the returns were accepted under section 16(1) of the Act on March 27, 1998 and July 26, 1999 respectively. As the Assessing Officer had reason to believe that wealth had escaped assessment for those assessment years, he initiated proceedings under section 17 of the Act. Notice was also served on the assessee and the assessee was requested to treat the returns filed already. Again the assessee was directed to file returns and the assessee filed returns again on December 29, 2000 admitting the wealth of Rs. 15,000 and Rs. 25,000, respectively. Thereafter, notice under section 16(2) of the Act was issued on December 29, 2000 and the assessee's accountant was present. The Assessing Officer found that the assessee had 2.25 acres of land within the Tirunelveli corporation limits and he sought to include the value of the land for wealth-tax assessment. On an appeal, the Commissioner of Income-tax (Appeals) found that as on the date of valuation, the assessee was not permitted to construct any building and as such the land is clearly outside the purview of the urban land. The Income-tax Appellate Tribunal has also accepted the view taken by the Commissioner of Income-tax (Appeals) in excluding the value of the land in the wealth-tax assessment of the assessee for the relevant assessment years.
6. From the plain reading of section 54B of the Income-tax Act, 1961, it is clear that to claim the benefit of this provision, the following conditions are required to be satisfied: (i) the capital gain must arise from the transfer of land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or his parent for agricultural purposes; and (ii) the assessee must have purchased the land within a period of two years after the sale of the above land for being used for agricultural purposes.
7. It is well settled in the case of CIT v. Suit. Savita Rani, [2004] 270 ITR 40 (P & H), wherein it is held that the land being located in a commercial area or the land having been partially utilised for non-agricultural purposes or that the vendees had also purchased it for non-agricultural purposes, were totally irrelevant considerations for the purposes of application of section 54B.
8. In the abovesaid case, the assessee an individual sold 15 karnals, 18 marlas of land out of her share in 23 karnals, 17 marlas land during the financial year 1990–91, relevant to the assessment year 1991–92. The sale was effected by three registered sale deeds. While filing her return of income, she claimed exemption from levy of capital gains under section 54B of the Act on the ground that the land sold by her was agricultural land and the sale proceeds were invested in the purchase of agricultural land within two years. The Assessing Officer rejected the claim of the assessee holding that the land sold by the assessee was not agricultural land and this was upheld by the Commissioner (Appeals). On further appeal, the Tribunal accepted the claim of the assessee holding that the transaction in question duly fulfilled the conditions specified for relief. On further appeal to the High Court, the Punjab and Haryana High Court found that the finding that the land had been used for agricultural purposes was based on cogent and relevant material. The Revenue record supported the claim. Even the records of the Income-tax Department showed that the assessee had declared agricultural income from this land in her returns for the preceding two years. The land being located in a commercial area or the land having been partially utilised for non-agricultural purposes or that the vendees had also purchased it for non-agricultural purposes, were totally irrelevant considerations for the purposes of application of section 54B. It is seen from the aforesaid decision that the agricultural land sold by the assessee with an intent to purchase another land within two years had also been permitted to claim exemption under section 54B of the Income-tax Act 1961. In the instant case, even though there was no sale as such, the assessee owned agricultural land within the limits of Tirunelveli corporation and he had not put up any construction thereon, the assessee is entitled to claim exemption from the Wealth-tax Act for the assessment of wealth-tax. That the land in question is adjacent to the hospital is totally irrelevant.
9. Hence, applying the abovesaid ratio, we do not see any merit in these appeals and the same are dismissed.