2000 P T D (Trib.) 3719

[Income-tax Appellate Tribunal Pakistan]

Before Muhammad Mujibullah Siddiqui, Chairman and Muhammad Mahboob

Alam Accountant Member.

W.T.As. Nos.411/KB and 412/KB of 1999-2000, decided on 24/08/2000.

Wealth Tax Act (XV of 1963)---

----Ss. 2(5)(ii), Explanation II, III & 17---Assets---Wealth escaping assessment---Assessment years 1994-95 and 1995-96---Agricultural land or non-agricultural land ---Assessee acquired a piece of land in gift---Land was admittedly included in the Housing Scheme which issued No-Objection Certificate for flat site subject to payment of conversion fee which was not paid and No-Objection Certificate was withdrawn---Land was also described in the gift deed as flat site ---Assessee declared the land as agricultural land for the assessment years on the plea that it was converted from agricultural to residential on 13-11-1995 by the Survey Officer---Assessing Officer assessed the property holding that the property was for the purposes of construction and sale and it was subject to levy of wealth tax---First Appellate Authority founder the Assessing Officer was not justified in considering the land to be a residential area---Validity---Land in question lost the character of agricultural land a long time back in the circumstances and Assessing Officer had rightly assigned to the same the status of non-agricultural land which was a flat site and consequently estimated the value of property in accordance with the Collector's valuation for the purpose of wealth tax---First Appellate Authority having not considered the facts and law in proper perspective finding of the First, Appellate Authority was vacated and findings of Assessing Officer were restored by the Appellate Tribunal---Appeal at the instance of department was allowed.

Ghulam Rasul v. Ikramullah PLD 1965 (W.P.) Lah. 429; Vir Bhan and another v. Sham Singh AIR 1944 Lah. 455; AIR 1953 Pb. 250; Shah Muhammad v. Mst. Pyari AIR 1936 Lah. 202; Naseer Ahmed v. Asghar Ali 1992 SCMR 2300; 1995 PTD (Trib.) 1426 and (1969) 72 ITR 552 ref.

C.W.T. v. H. V. Mungala (1984) 145 ITR 208 distinguished.

Khalid Siddiqui, D.R. for Appellant.

Shafi Muhammad Awan, I.T.P. for Respondent.

Date of hearing: 23rd August, 2000.

ORDER

MUHAMMAD MUJIBULLAH SIDDIQUI (CHAIRMAN).---The above appeals at the instance of department are directed against the order, dated 7-9-1999 by the learned CWT(A), Zone-VI, Karachi in W.T.As. Nos.348 and 349 relating to the assessment years 1994-95 and 1995-96. The sole point for consideration in these appeals is whether plot measuring 13785 sq. yards bearing Survey No.05, Block 13-E, Gulshan-e-Iqbal, Karachi is an agricultural land or a residential land.

2. The relevant facts are that the respondent and URF comprising Mst. Afshan Pervaiz, Urooj Naveed and Huma .laved received a piece of land measuring 13785 sq. yards in gift from one Mr. Pervaizul Haq Siddiqui vide Gift Declaration, dated 24-8-1993. The unregistered firm "was constituted in equal shares for the three ladies for the purpose of business of land development in the name and style of Ms. Sadaq Associates. The land was acquired through gift comprised of four portions one being numbered 10-A measuring 2904 sq yds and rest of three numbered 1 0. 3 and 4 respectively, each measuring 3630 sq. yards bearing Survey No.205, situated at Deh Gujhro, Block-13E; Gulshan-e-Iqbal, Karachi. The respondent for the purpose of business of construction and sale held the land. No returns under-the Wealth Tax Act filed-voluntarily. The Assessing Officer formed opinion that the property was held by an URF for the purpose of construction and sale, and therefore, it was subject to the levy of wealth tax.? The Assessing Officer, therefore, issued notice under section 17 of Wealth Tax- Act, calling upon the respondent to file wealth tax return for the assessment years 1994-95 and 1995-96. It was replied on behalf of respondent vide letter, dated 26-2-1998 that the plot of land owned by the assessee in the assessment years 1994-95 and 1995-96 was a barren agricultural land and, therefore, the assessee was under the impression that no tax was payable on it. A certificate was produced from Assistant City Survey Officer, District East, and Karachi to the effect that the land was converted from agricultural to residential on 13-11-1995. It was further stated that the land was sold away before 30th June, 1996 which is the valuation date for the, assessment year 1996-97. Ultimately the respondent filed return of income declaring the above property as agricultural land showing the value thereof at Rs:28,95,000.

3. The Assessing Officer did not accept the contention that the land held by the respondent was agricultural for the following reasons:--

(i) The purpose for which the land was held by the assessee was undisputedly the business of constructions/sale and the assessee during the immediate succeeding year ended 30-6-1995 (i.e. before the conversion of land from agricultural to residential by the K.D.A.), sold out a part of the land as residential as well as commercial units.

(ii) The subject land had already been included by the KDA in its Residential Scheme No.24 announced much before the purchase of land by the donor Mr. Pervaizul Haq Siddiqui.

(iii) The land was purchased by the donor from M/s. Allahabad Cooperative Housing Society and the land was obviously allocated by the KDA to the said society for residential purpose.

(iv) The property was leased out by the donor to the respondent prior to gift in which the property was described as flat sites, which established that the land was held by the respondent for the purpose of business of construction/sale and was liable to wealth tax.

(v) 1/3rd share in all the four portions of subject land was gifted to each of the partners of URF vide gift declaration, dated 24-8-1993. In the said gift declaration, the donor has himself specified the land as flat sites and the purpose of land is once again established to be the business of construction/sale.

4. For the foregoing reasons the Assessing Officer held that the land in question was non-agricultural land and was flat site. -He thereafter estimated the value of land in accordance with the Collector's valuation table which worked out to Rs.1,19,51,595. in each assessment year under appeal.

5. The respondent feeling aggrieved preferred first appeal assailing the finding that the land in question was a non-agricultural land. In support of contention reliance was placed on KDA certificate produced before the Assessing Officer, copy of record of rights, copy of Minister's, order of conversion of land from agricultural. residential and copy of Challan, dated 13-11-1995. The A.R. of the respondent in support of the contention that the land was still agricultural produced copy of letter, dated 16-9-1993 from Assistant Director, Planning and Urban Design Department, KDA which? reads as follows:---

Dated: 16.9.1993

To,

M/s. Sadaq Associates,

Karachi

Subject: Cancellation of Flat-Site NOCURP-59, 18/MP & EC/86/UD520/5362, dated 10-5-1987 for Agricultural land bearing Survey No. 205 Portion 1, 3, 4 and l0A Scheme-24, Block-13E Karachi since 1990.

Dear Sir,

With reference to your inquiry about the status of above Agricultural Land you are hereby informed that for this N.O.C. for flat site was granted to M/s. A11ahabad Housing Society in 1987 subject to payment of conversion charges, which they failed to deposit therefore after a default of almost 3 years, this NOC was withdrawn/cancelled in 1990.

You are therefore required to apply again for conversion of this Agriculture Land to Residential. If desired so.

??????????????????????????????????????????????????????????????????????????????????????????????? (Sd.)

??????????????????????????????????????????????????????????? ? ????????????????????????????????? Assistant Director.

???????????

6. The copy of application submitted to the Minister of Housing and Town Planning, dated 19-11-1994 was also produced which reads as follows:---

??????????????????????????????????????????????????????????????????????????????????????????????????????????? Dated: 19-11-1994

The Minister,

Housing & Town Planning,

Government of Sindh,

Karachi

SUBJECT: CONVERSION OF AGRICULTURAL LAND TO RESIDENTIAL AID APPROVAL OF LAYOUT PLAN FOR OUR LAND PORTION NOS. 1 & 10A AND PORTION NOS.3 & 4 OF SURVEY N0.205, DEH GUJRO SCHEME 24, KARACHI.

Dear Sir,

With reference to above we beg to state that we have applied to the KDA for conversion of our abovementioned land from agricultural to residential and submitted the layout plans for approval for the same.

Director-General has told us, KDA that without your kind approval this conversion of Agricultural land to Residential and approval of its layout plan is not possible. Therefore, you -are hereby requested to direct Director-General, KDA to immediately put up our case to you for approval.

Yours faithfully

??????????????????????????????????????????????????????????????????????????????????????????????????????????? (Sd.)

??????????????????????????????????????????????????????????????????????????????????????????????????????????? for Sadaq Associates

???????????????????????

7. Further reliance was -placed on the order of Minister dated 4-11-1995 which reads as follows:---

" I have gone through the note of Director-General, KDA and there appears no objection from KDA for the approval of layout plant hence request is allowed."

8. Further reliance was placed on deposit of Rs. 19,60,928 on 13-11-1995 with KDA, Development Wing on account of layout plan and outer development charges. Further reliance was placed on an Addendum issued by Secretary, Sindh Land Commissions, dated 7-6-1973 according to which agricultural land within the District of Karachi were to be treated as un-irrigated for the purpose of para. 8(1) of MLR-115 of 1972.

9. On perusal of above evidence the learned CIT (A) held as follows:--

"In the said facts and in view of the ample evidence produced before me, I have no alternative but to accept the appellant's plea, and, treat the land in question as an agricultural land. Assessing authority was therefore not justified in considering this plot of land to be a residential area, held for the purpose of construction and sale. The impugned assessments, charging wealth tax thereon, are held as illegal, which are accordingly cancelled in the appellant's case."

10. The department feeling aggrieved has preferred this second appeal taking plea that the land in question is admittedly uncultivated and, therefore, it does not qualify as agricultural land for the purpose, of wealth tax.

11. We have heard Mr. Khalid Siddiqui, learned Representative for the department and Mr. Shafi Muhammad Awan, ITP for the respondent. The learned DR has reiterated the pleas already recorded in the assessment order. On the other hand Mr. Shafi Muhammad Awan in his very lengthy arguments has supported the impugned finding of learned CIT(A) on the basis of evidence produced before him and has further placed reliance on same provisions of law which we will consider presently. During the course of arguments before us Mr. Shafi Muhammad Awan has stated that the land has not been cultivated after the year 1973 and that it was included in KDA Scheme No.24 from the year 1993. In support of his contention that the land is agricultural he has placed reliance on the extract from record of rights maintained under the Land Revenue Act to show that it was agricultural land which was given on lease by Mr. Pervaizul Haq Siddiqui to the respondent M/s. Sadaq Associates. He has contended that the Secretary, Sindh Land Commission issued instructions on 7-6-1973 that the land within the District Karachi is to be treated as un irrigated land for the purpose of working out produce index unit which means that it was an agricultural land. The letter, dated 16-9-1993 issued by the Assistant Director, Planning and Urban Design Department, KDA which has been reproduced earlier contained that the NOC issued for flat sites by the KDA to Allahabad Cooperative Housing Society in 1987 was subject to payment of conversion charges which they failed to deposit and, therefore, after a default of 3 years this NOC was withdrawn/cancelled in year 1990. Mr. Shaft Muhammad Awan has contended that this letter also shows that the land remained agricultural. He has then referred to application of the respondent addressed to the Minister, containing request for conversion of land from agricultural to residential and for approval of layout plans and the order of Minister thereon, dated 4-11-1995 and subsequent depositing of layout plan and outer development charges on 13-11-1995. Mr. Shafi Muhammad was asked to show the law under, which any specific or formal order was required by any authority for conversion of agricultural land into Sikni land (residential land). Mr. Awan was not able to produce any such law. He however, produced Sindh Buildings Control Ordinance, 1979 and placed reliance on section 6 of the said Ordinance which provides that no building shall be constructed before the authority has, in the prescribed manner, approved the plan of such building and granted no-objection certificate for the construction thereof on payment of such fee as may be prescribed. We are of the opinion that this provision is not relevant for the purpose of deciding the status of a land. It merely places a restriction that the Buildings Control Authority shall construct a building in an area to which the Ordinance is made applicable after the approval of plan. Mr. Await next produced Karachi Building and Town Planning Regulations, Part II and placed reliance on para.3 of Schedule D which provides that no change of land use or conversion of Amenity, Utility and other plots as defined in subsections 2(e), 2(h), 2(i), 2(j), Part I of Schedule G earmarked in the layout plans of any housing scheme, prepared by any local body, housing society or by any (private) developer, shall be allowed except in accordance with the procedure prescribed in the said para. This provision is also not relevant for deciding the issue under consideration. It merely deals with the change of land used or conversion of Amenity, Utility and other plots. It has nothing to do with the issue tinder consideration. Mr. Shaft Muhammad Awan has further placed reliance on the definition of expression agricultural land under the head 'Non-urban uses' and sub-head 'Agriculture and Forestry Uses'. According to this definition the agriculture land includes arable lands, pastures and grazing grounds and orchards. This definition is relevant to some extent but it is of no help to the respondent for two reasons. First, it refers to non-?urban uses and the land under consideration was admittedly included in the KDA Housing Scheme No.24 much before acquiring the title thereof by the respondent. Secondly, it includes arable lands, pasture and grazing grounds 'and orchard while the land under consideration is stated by Mr. Awan to be lying barren and uncultivated from the year 1973. A perusal of the Karachi Building and Town Planning Regulations, Part II shows that in section 19(1) it is provided that no developer or owner of plot shall make any advertisement through Newspapers, Radio or Television or in any manner for the sale or lease of, or offer to sell or lease any plots in any sub-division or any part thereof before any final development permit for the. erection of any structure or sub-division of plot in such proposed sub-division has been granted. It is further provided in section 20 of the said Regulations that prior to the filing of an application for approval a preliminary inquiry shall be held regarding land use status and an application form has been prescribed which' is Form NO.P-1 reads as follows:---

"(Name of the Authority)

FORM NO.P.1

PRELIMINARY ENQUIRY REGARDING LAND USE

STATUS, UNDER S.20(1)

To'

-----------------------

-----------------------

-----------------------

I hereby submit an application alongwith necessary particular/documents as prescribed under Karachi Building and Town Planning Regulations (Part II) 1979 for the preliminary enquiry regarding land use status of the land whose particulars are given below submission of a detail plan for approval.

(Signature of the Applicant).

Address

Particulars/documents

(1) Name of the owner or owners

(2) Name of the developer with address if different from the owner

(3) Area (in sq. matters)

(4) Location and Survey No.

(a) Survey No.

?

(b) Deh

?(c) Tappo

(d) Moza

(e) District

(5) Details of present use

(6) Details of proposed usb-division of use if any.

?(7) Particulars of rightful ownership

(a) Certified sketch and extract of property, registration from D.C. Office

(b)? Form VII and Revenue Sketch from CDC/Mukhtiarkar."

12. A perusal of the above pro forma shows that it refers to the particulars and record which is maintained by the Land Revenue Authorities under the Land Revenue Act, 1967. It is no where provided in this pro forma that for the purpose of development plan a developer owner of a plot is required to obtain an order for conversion of agricultural land into residential land. The reason appears to be that there is no provision in the Land Revenue Act, 1967 for getting any agricultural land converted into Sikni land before erection of any building on the agricultural land. Although there was a provision in the Sindh Land Revenue Code, 1879 in this behalf, which stands repealed by Sindh Land Revenue Act, 1967. A perusal of the entire Land Revenue Act, 1967 indicates that the criterion is that only that land is to be treated as agricultural land which is under cultivation or is a pasture or is used for horticultural breeding of live stock including poultry fish and bees or the land is used for any allied or ancillary purposes. It is provided in section 3(1) of the Land Revenue Act, 1967 as follows:

"Except so far as may be necessary for the record, recovery and administration of village-cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed of land revenue."

13. Similar provision is made in section 56 of the Land Revenue Act, 1967 which provides as follows:---

"56. Assessment of land revenue.--(1) All land, to whatever purpose, applied and wherever situate, is liable to the payment of land revenue to Government, except---

(a) such land as has been wholly exempted from that liability by special contract with Government, or by the provisions of any law for the time being in force; -

(b) such land as is included in village site;

(c) such land as is included in Cantonment limits;

(d) land on which property tax under the West Pakistan Urban Immovable Property Tax Act, 1958 (W.P. Act. V of 1958) is payable;

(e) waste and barren land not under cultivation for a continuous period of not less than six years immediately before the date of notification for general assessment or reassessment under section 59: provided that where any waste and barren land is brought under cultivation at any time after the date of such notification, such land shall not be liable to the payment of land revenue for a period of six years from the date it is so brought under cultivation."

14, in West Pakistan Land Revenue Rules, 1968 classification of land is given in rule 4 which is as follows:

"4.Classes of land.---(1) The most important classes of cultivated land are as follows:-?

(a) barani---dependent on rainfall;.

(b) sailabi---flooded or kept permanently moist by rivers;

(c) rood-kohi---watered from hill torrents;

(d) abi---watered by lift from tanks, jhils, streams, by flaw from springs or karezes;.

(e) nebri---irrigated by canals by flow of lift

(t) chahi---watered from wells; -

(g) chahi-nehri---irrigated partly from a well and partly from a canal;

(h) nul-chahi---watered from tubewells; and

(i) chahi-mustear---irrigated from water taken on loan.

(2) The most important classes of uncultivated land are as follows:--

(a) Banjar-kham--- _??? land which has' remained unsown for four successive harvests;

(b) banjar-jadid----????? land which has remained unsown for twelve successive harvests;

(c) banjar qadim---?????? waste and barren land which has remained unsown for more than twelve successive harvests; and

(d) ghair-mumkin--- land which has, for an y reason, become permanently? unculturable as such land under? roads, buildings, streams, -canals, karezes, tanks, or the like, or land which is barren sand or revines."

15. In Sindh Land Revenue Flat Rate Assessment Rules, 1973 the term 'area' is defined in section 2(c) as follows:

"(c) Area means the total area of den as recorded in Village Form No. 1 of the concerned Deh, less?

(i) area under Government forests;

(ii) land which is occupied as the site of a town or village;

(iii) Ghair mumkin area;

(iv) land set apart for special and public purposes, and

(v) other Nakabuli land not let out."

In rule 2(j) of the said Rules expression? ghair mumkin? is, defined as under:

Ghair Mumkin means land, which has, for any reasons, become. unculturable, such as land under roads, buildings, streams, canals, karezes, tanks or the like, or land which is barren, said or revine."

In rule 5 of the said Rules which is provided as follows:--

"5. Assessment of land revenue shall be levied on produce index units of the land excluding ghair mumkin held by the Khatedar or occupant calculated on the basis of classification of soil as per revenue records for Kharif 1970 and Rabi 1970 and in case of difference between Kharif and Rabi the classification carrying the higher Produce Index Units shall be taken into account."

16. A resume of the above provisions leads to the conclusion that a land which is either barren or has been put to residential or other such uses which make the cultivation of land impossible or is occupied or is included in a site of a town or village is excluded from the purview of agricultural land without any formal order in this behalf by any authority under the Land Revenue Act, 1967 or any other authority exercising jurisdiction under any other law for the time being in force.

17. The provisions analogous to section 3(1) of the Land Revenue Act, 1967 was contained in section 4(1) of the Punjab Land Revenue Act, 1887 which came for consideration before West Pakistan High Court, Lahore Bench in the case of Ghulam Rasul v. Ikramullah (PLD 1965 W.P. (Lahore) 429). The relevant facts were that a factory was constructed on a land which was agricultural land and was lying vacant. The question came for consideration, 'whether the said land still remained agricultural land after construction of factory thereon or it was no more an agricultural land'. A Division Bench of erstwhile West Pakistan High Court, Lahore Bench, observed that section 4(1) of the Punjab Land Revenue Act lays down that except so far as may be necessary for the record, recovery and administration of village-cesses nothing in that Act applies to land which is occupied as the site of town or village and is not assessed to land revenue It was observed that to exclude a certain land from the operation of the Act, two conditions must be fulfilled at once at the same time, viz. (1) it is occupied as the site of a town or village and (2) it is not assessed to land revenue. It was further observed that the expression 'land' has not been defined anywhere in the Punjab Land Revenue Act. A reference was made to an earlier judgment of Lahore High Court in the case of Vir Bhan and another v. Sham Singh (AIR 1944 Lahore 455) in which the question arose whether the jurisdiction of Civil Court to execute decrees of attachment or sale of the land assessed to land revenue on which house and ships are built was excluded or not. It was held in the said judgment that the word 'land' as used in the Land Revenue Act has restricted meanings and does not comprise sites assessed to land revenue on which buildings with structures of a permanent character have been constructed. In another judgment from Indian jurisdiction reported as (AIR 1953 Punjab 250) it was held that the Land Revenue Act does not exclude the jurisdiction of Civil Courts in regard to lands on which houses, shops and factories have been built. Reference was made to another judgment of Lahore High Court in the case of Shah Muhammad v. Mst. Pyari (AIR 1936 Lahore 242) wherein it was observed as follows:--

"Moreover, the word 'estate' as defined in the Punjab Land Revenue Act, in our opinion, applied to agricultural lands only and does not include any other class of property. As soon as agricultural land is converted into building site, whether in a village or in a town, its owner, so to say, walks out of the estate and ceases to have any connection with it any longer. 'He establishes a new character for his possession and is, therefore, to be treated on that basis."

Ultimately it was held by the Hon'ble Judge of erstwhile West Pakistan High Court Lahore Bench .that the land revenue authorities loose jurisdiction in respect of a land/site which may have completely lost all the characteristics of agricultural land and have instead assumed its importance as. a business centre.

18. A question about the status of agricultural land came for consideration before the Hon'ble Supreme Court of Pakistan in the case of Naseer Ahmed v. Asghar Ali (1992 SCMR 2300). The relevant facts were that a piece of land was gifted to the appellant which was ghair mumkin abadi and the question whether by acquiring ownership of such land the status of owner of estate was acquired. The piece of land formed part of Khasra No.23/l/3, having area of 3 Kanals 9 Marlas, according to entries in the Register Haqdaran for the years 1961-62, 1964-65 and 1977-78. For the first two years it was recorded as Nehri but not assessed to land revenue. In the three documents it was shown as ghair mumkin abadi. The land was sold in the year 1973 and it was observed by the Hon'ble Supreme Court of Pakistan that in-between 1961-62, 1964-65 and 1973, possibly the character of land" changed. It was observed that in the Register Haqdaran the land was described as ghair mumkin abadi which is not assessed to land revenue and there was a note of Patwari that the land was located with the limits of Municipal Committee, Toba Tek Singh and the gift has been made for residential purposes. It was held by the Hon'ble Lahore High Court that the land was not of the status of agricultural land. The Hon'ble Supreme Court of Pakistan concurred with the views. The Hon'ble Supreme Court of Pakistan held that the High Court rightly held that the land was ghair murnkin abadi and was a sikni land.

19. In our humble opinion the ratio of the judgment of Hon'ble Supreme Court of Pakistan is that if land is, gait mumkin abadi and is not assessed to land revenue and it is included in the Municipal limits, it looses the character of agricultural land and is converted into sikni land.

20. Before parting with this judgment we would like o refer another Division Bench judgment of this Tribunal reported as 1995 PTD (Trib.) 1426 on which Mr. Shaft Muhammad Awan has placed reliance and has contended that from his point of view it is a very, important judgment. In this judgment it is held that a question whether a particular piece of land as agricultural land within the meaning of Wealth Tax Act is a question of fact to be decided in the circumstances of the given case and no hard and fast rule or inviolable test can be laid down for determining the question generally. In the said judgment reference has been made to some Indian judgments. In the case reported as (1969) 72 ITR 552) (A.P.) it is held as follows:--

"A land which is left barren, but which is capable or being cultivated can also be 'agricultural land' unless the said land is actually put to some other non-agricultural purpose, like construction of building or an aerodrome runway etc. thereon, which alter the physical character of the land rendering ii unfit for immediate cultivation."

Another judgment from Indian jurisdiction is reported as C.W.T. v. H.V. Mungala (1984) 145 ITR 208) in which it has been held as follows:--

"'The facts shoved that land was used for agriculture till 1963. It had been so recorded in the Revenue Records and the land was assessed as agricultural land. No evidence had been led on behalf of the Revenue to rebut this presumption. It was pointed out that merely because it remained fallow after 1965, the land did not cease to be agricultural land. It was also pointed out that the owner could not use the land, which was recorded as agricultural land in the revenue papers, for a non-agricultural purpose, unless the land is allowed to be converted to a non-agricultural purpose by the Collector under the provisions. of the relevant Land Revenue Act or the Land Revenue Code. This is a circumstance which must necessarily be taken into account while determining the character or the nature of the land. "

After citing the above judgment the learned Members of the in Bench of this Tribunal observed that another test for classifying a piece of land as prescribed by the Courts, would be its actual use during the relevant period. If it has not been in use then the totality of circumstances as to its present use, the intention of the owner, the use made of the contiguous or neighouring areas or locality etc. will go to determine its true nature or character for the relevant period or point of time. Thus, a land lying barren or fallow in a rural area, surrounded by agricultural fields, can fairly be classed as agricultural.

22. A perusal of the above judgment shows that the ratio of foreign judgments have been relied upon without making any inquiry about the legal provision prevailing for the time being in force in the said country. Until and unless the relevant provisions of

law in foreign country is brought to the notice of Court and it is shown that there was similar and analogous provision in the foreign country which formed basis of judgment, to the provisions of law in Pakistan, it would always be very dangerous and mis?leading to place reliance on judgment of foreign Jurisdiction including Indian jurisdiction. We would, therefore, like to record a note of caution that without first comparing the relevant provision of law prevailing in Pakistan with the provision of law in the foreign country which came for consideration in a particular judgment no reliance should be placed on any judgment from an foreign country. The citation from the judgment reported as (1984) 145 ITR 208 shows that a provision was contained in Bombay Land Revenue Code, 1879 which was considered by the Bombay High Court and prior to 1967 the analogous provision was prevailing to the extent of area comprising Sindh, by virtue of the provision contained in Sindh Land Revenue Code, 1879, but after 1967 the Sindh Land Revenue Code, 1879 stood repealed with the result that there was no provision of law in Pakistan about seeking any permission from Collector under the provisions of Land Revenue Act for the conversion of agricultural land into a sikni land. No reliance can, therefore, be placed on the judgment by the Bombay High Court. However, the learned Members of the Division Bench were considering the entirely different facts. In the cited case a land was situated in a village 10 Kilomeater outside the Octroi Post on Superhighway and the land was allocated m the jurisdiction of District Council of Karachi and not that of Karachi Municipal Corporation. In the present case the land was admittedly lying barren from the year 1973. It has been admittedly included in the K.D.A. Housing Scheme No.24 and the documents produced by the learned counsel for the respondent show that the KDA issued NOC for flat ?site Mis. Allahabad Cooperative Housing Society in the year 1987 subject to payment of

conversion. NOC was withdrawn construction of flats at least from the year 1987, Regulations coupled with the judgment of Hon'ble Lahore High Court and Hon'ble Supreme Court of Pakistan; we are of the considered opinion that the land in question lost character of agricultural land very long back and, therefore, the Assessing Officer had rightly assigned it the status of non?agricultural land which was a flat site and had consequently estimated the value of property in accordance with the Collector's valuation table or the purpose of Wealth Tax Act. The learned CIT(A) has not considered the facts and law in proper perspective and has, therefore, fallen in , error. The impugned finding of learned CIT(A) is hereby vacated and the findings of Assessing Officer are hereby restored.. .The appeals at the instance of department are allowed accordingly.

C.M.A./IN.A.K./40/TaxzTrib.) ?????????????????????????????????????????????????????????? Appeal allowed.