S.P. Bharucha, J.
1. This reference raises at the behest of the Revenue the following question:
'Whether, on the facts and in the circumstances of the case, the land bearing Survey Nos. 1393 and 1395 and portions 'A' and 'C' of Survey No. 1394 in Surat (Gujrat) is agricultural land for the purposes of section 2(14)(iii) of the Income-tax Act, 1961 ?'
2. The assessee sold land bearing Survey Nos. 1393, 1394, and 1395 in Surat by asale deed dated February 24, 1967, at the rate of Rs. 20 per sq. yd. The said land measured 32,4000 sq. yds. In his return, the assessee showed a capital gain arising from the sale of the land bearing Survey No. 1394 (measuring 16,219 sq. yds) on the basis that this was non-agricultural land. He thereafter filed revised return where in the computation of the capital gain was altered. The revised return proceeded on the basis that out of three portions of the land bearing Survey No. 1394, i.e., A, B and C, only the portion marked 'B' whereon there was structure which yielded a rental income was non-agricultural and the portions shown as 'A' and 'C' were agricultural land. The assessee submitted before the Income-tax Officer that he was growing vegetables and grain for personal use upon the balance of the said land and that there were wells thereon which were used for agricultural activities. Further, he relied upon the certificate of the City Survey Officer which showed that the said land 'bearing survey Nos. 1393, 1394 and 1395 was agricultural land. He pointed out that this had been accepted by the registering authorities when the sale deed was registered at Surat. The Income-tax Officer, however, held that the assessee had failed to prove that the balance of the said land was used for agricultural purposes. The Appellate Assistant Commissioner, in the assessee's appeal, sustained the assessment. He noted also that the said land fell within the Town Planning Scheme and lay within the Municipal limits of surat city, in further appeal before the Income-tax Appellate Tribunal, it was elicited was the said land comprising of the three Survey Numbers a single plot of land not demarcated by fencing. The Tribunal noted that no details of expenses incurred for agricultural activities upon the said land were available and the fact that the vegetables grown thereupon sufficed, admittedly, only for the assessee' consumption showed that the activity in that regards was trifling. The Tribunal also noted that the City Survey Officer's 'nondh' was inaccurate when it said that the said land bearing the three Survey Numbers was agricultural land but not used for agricultural purposes because, it was common ground there was a structure thereon which had been rented out to two tenants. The Tribunal stated that the fact that the said land was assessed to land revenue was not determinative of the issue. The Tribunal held that 'in the absence of any evidence to show that the land was put to any agricultural use at any point of time prior to the date of sale, apart from paltry growing of vegetables for domestic use', it could not be treated as agricultural land.
3. Mr. Dalvi, learned counsel for the assessee, laid emphasis upon the growth of grain and vegetables upon the said land. He drew attention to the City Survey Officer's 'nondh' which showed that the said land was agricultural land but was not used for non-agricultural purposes. He drew attention to the fact that the Registrar had proceeded on the basis that the said land was agricultural land and had, therefore, no insisted upon the production a certificate under section 230A as a pre-condition to the registration of the sale deed.
4. There is no evidence of any agricultural activity upon the said land apart from the activity of growing vegetables and grains for the personal use of the assessee. Such activity was rightly described by the Tribunal was trifling, particularly having regard to the failure of the assessee to show any expenditure incurred in this behalf. The said land was situated within the Municipal limits of Surat City, fell within a Town Planning Scheme and within an areas that was generally residential. Upon the said land, taken as an undemarcated unit, there was building which was, in part tenanted. These factors rightly weighed with the Tribunal and more that offset the presumptive value of the Citu Survey Officer's 'nondh'.
5. That the Registrar accepted the assessee's statement that the said land, was agricultural land for the purpose of registering the sale deed does not carry the matter further.
6. There is indeed one other factor which goes against the assessee and that is that a close reading of the sale deed suggest that the said land is sold for the purpose of building activity.
7. Having regard to all these factors, the Tribunal must be held to have been justified in coming to its conclusion and we answer the question accordingly. It is answered in the negative an din favour of the Revenue.
8. The assessee shall pay to the revenue the costs of the reference.