S. NAINAR SUNDARAM, J. ( 1 ) THE question that stands referred to us for our consideration at the instance of the assessee runs as follows:"whether on the facts and in the circumstances of the case, the Tribunal was justified in coming to the conclusion that the land sold by the assessee was not agricultural land"?the factual background can be recapitulated as follows: The assessee acquired various pieces of immovable property in a partition of Hindu undivided family. Amongst bearing Survey Nos. 94, 95/2 and 95/5 and the other bearing Survey Nos. 73/1 and 73/2. The transaction under consideration is a sale of a part of Kochrab-Paldi land bearing Survey Nos. 73/1 and 73/2. This Piece of land was acquired by the Hindu Undivided Family, of which the assessee was a p\coparcener. In the partition the assessee obtained this piece of land along with other lands. At that time this piece of land was an agricultural land. Later on the Town Planning Scheme was applied to the area in question from 1980. Survey No. 73/1 measured 11,374 Sq. yards while Survey No. 73/2 measured 15,004 Sq. yards; the total extent of the two Survey Nos. being 26,378 Sq. yards. Out of this 10,400 sq. yards were sold to Bank of India Staff cooperative Housing Society in 1961. On 18-10-1968 out of this extent the assessee sold 4,769 sp. yards to Swetal Cooperative Housing Society for a consideration of Rs. 2,88,247/- and Shri D. R. Parekh signed the document as confirming party. This is the transaction which has given room for the controversy. The Income Tax Officer after considering the relevant aspects concluded that accordingly he taxed the capital gains arising out of the transaction Rs. 1,32,371/- as long term capital gains. The assessee went in appeal and the Appellate Assistant Commissioner had a different opinion to express on the question and after consideration of the various aspects, the Appellate Assistant Commissioner held that the land in question continued to be agricultural land upto the time of sale and is not liable for capital gains tax on the surplus realised on the sale. The Revenue preferred an appeal before a Income Tax Appellate Tribunal, Ahmedabd Bench and the Tribunal considered the question and held that the assessee had not established that the land sold was agricultural land and accordingly allowed the appeal of the Revenue. The Revenue preferred an appeal before a Income Tax Appellate Tribunal, Ahmedabd Bench and the Tribunal considered the question and held that the assessee had not established that the land sold was agricultural land and accordingly allowed the appeal of the Revenue. Thereafter at the instance of the assessee the question extracted above has been referred to us by the Tribunal. ( 2 ) ON the question which we are called upon to answer, our concentration must be first to find out as to whether there has been a proper actual finding by the Tribunal applying the correct tests laid down in this behalf. We must straightway say that we are the summing up portion the finding of the Tribunal is to the effect that the land sold by the assessee has not been established by him to be an agricultural land,- on very many aspects which are relevant, doubts have been expressed by the Tribunal in unamibiguous terms. With regard to the total extend of Survey Nos. 73/1 and 73/2, not going into the new Survey Number, the Tribunal observes it is not clear as to what happened to the rest for some other purposed. Again it is observed by the Tribunal that it is not clear how much of the new plot related to S. No. 73/1 and how much to S. No. 73/2. The Tribunal did advert to the fact that in the past the land was only agricultural land. If that is so, a legimate presumption arises that it continued to be agricultural land. It is true that, this presumption is a rebutable one. But there should be definite indications about conversion. The factors to be taken note of in the field of rebuttal must be convincing and positive and not presumptive. The Tribunal rightly stated that the actual land sold alone has to be the land is admittedly agricultural or non-agricultural. Apart from stating the proposition, the Tribunal does not appear to have remembered and applied it to the facts of the case in vigour. The Tribunal has no definite answer with regard to treatment of the lands in the panipatraks. The entire discussion of the Tribunal is in a doubtful sphere. Ultimately here the Tribunal in an omnibus manner opines that it has not bee established by the assessee with clear evidence that the land sold was agricultural land. The Tribunal has no definite answer with regard to treatment of the lands in the panipatraks. The entire discussion of the Tribunal is in a doubtful sphere. Ultimately here the Tribunal in an omnibus manner opines that it has not bee established by the assessee with clear evidence that the land sold was agricultural land. ( 3 ) THE question as to how the land should be classified, either as agricultural or non-agricultural, is not one that comes up for consideration for the first time. There are pronouncements of the Court itself speaking on the subject. In the case of Commissioner of Income Tax, Gujarat-II vs. Vajulal Chunilal (HUF), reported in 1979 Vo. 120 ITR 21, useful guidelines have been recapitulated by this Court and the Head Note of the report succinctly brings them out as follows : entries in the record of rights are good prima facie evidence regarding agricultural and land. The approach of the fact-finding authorities, namely, the income-tax authorities and the Tribunal, should be to consider the question from the point of view of presumption arising from entries in the record of rights or actual user of the land them consider whether that presumption is dislodged b y the presence of other factor in the case. If the land is actually used at the relevant date for agriculture purpose and there are no special features, for example building plot being actually used as a stopgap arrangement for agricultural purposes, it would be agricultural land. Potential use of the land as an agricultural land is totally immaterial. The mere fact that permission has been granted under the Bombay Tenancy and Agricultural Lands Act by the authorities concerned for sale of agricultural land to a non-agriculturist would not result in the land ceasing to be agricultural land. If the conditions of the permission are not complied with, the land in respect of which permission was granted would revert to its original character of agricultural land. If the conditions of the permission are not complied with, the land in respect of which permission was granted would revert to its original character of agricultural land. ( 4 ) IN case of Gemini Pictures Circuit P. Ltd. vs. Commissioner of Income-Tax, Tamil Nadu-1, reported in (1981) 130 ITR 686, the Bench of the High Court of Madras the propositions countenanced can be summed up in the following terms: once an assessee establishes that the land in question was continuously used for agricultural purposes, than the prima facie presumption arising form such user is that the land in question continues to be agricultural land. The presumption is not rebutted by placing emphasis on the environment and situation of the land such as the land being situated in a well developed area within the municipal or city the price at which the property had been purchased or sold or by showing that the current agricultural user of the land is not a prudent user. The presumption can be rebutted only by showing that the land purchased or inherited by the assessee was not agricultural land (such as building site or factory site) and the current agricultural user of the land was as stopgap arrangement pending availability of a buyer for the land in question. Once it is established that the land is agricultural land in the hands of the assessee, until some act on the part of the assessee has been established which was converted the property into non-agricultural property r the use of the laid was actually changed or other definite indications to the contrary are available, the land will be presumed to remain as agricultural land. Once the assessee proves that the land is agricultural land, the burden of proving that it is not agricultural land is on the revenue. ( 5 ) IN the case of Arundhati Balakrishna vs. Commissioner of Income Tax, Gujarat, reported in (1982) 138 ITR 245 a pronouncement of this court: the propositions stand recapitulated as follows:"when determining whether a land in question is agricultural, the following points have to be borne in mind 1. The intention of the owner to put it to any particular user is one of the criteria though not the sole or exclusive criterion 2. The actual user may ordinarily furnish prima facie evidence of the nature and character of the land. The intention of the owner to put it to any particular user is one of the criteria though not the sole or exclusive criterion 2. The actual user may ordinarily furnish prima facie evidence of the nature and character of the land. If it is lying idle, the question may assume more complexity, 3. The development and situation of land in the adjoining area or surrounding would be an important factor for consideration. 4. The physical characteristics may throw some light. 5. The mere fact that the lands are assessed as agricultural lands under the Land Revenue Code or the said lands are not actually used for non-agricultural purposes does not necessarily mean that the lands are agricultural lands. Otherwise even building site lands can be considered as agricultural lands since it can always be said that they are capable of being as agricultural purposes". . ( 6 ) A prudent and reasonable man would not purchase agricultural land (that is to stay, for agricultural purposes) in the midst of a highly developed residential area at an enormously high price, compared to the return. In the case of the Commissioner of Income-Tax, Gujarat-II vs. Siddharth J. Desai, reported in (1983) 139 ITR 628 as many as 13 tests were set down by this Court and they run as follows: (1) Whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue? (2) Whether the land was actually or ordinarily used for agricultural purposes at or about the relevant time? (3) Whether such user of the land was for a long period or whether it was temporary character or by way of a stopgap arrangement? (4) Whether the income derived form the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land? (5) Whether, the permission under sec. 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of two lands? If so, when and by whom (the vendor or the vendee)? Whether such permission was in respect of the whole or a portion of the land? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? Whether such permission was in respect of the whole or a portion of the land? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date? (6) Whether the land, on the relevant date, had ceased to be put to agricultural use? If so, whether it was put to an alternative use? Whether such cessor and/or alternative user was of a permanent or temporary nature? (7) Whether the land though entered in revenue records, had never been actually used for agriculture, that is, if had never been ploughed or tilled? Whether the owner meant or intended to use it for agricultural purposes? (9) Whether the land itself was developed by plotting and providing roads and other facilities? (10) Whether there were any previous sales of portions of the land for non-agricultural use? (11) Whether permission under S. 63 of the Bombay Tenancy and Agricultural Lands Act. 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist? If so, whether the sale or intended sale to such non-agriculturist was for non-agricultural or agricultural user? (12) Whether the land was sold on yardage or on acreage basis? (13) Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield? (12) Whether the land was sold on yardage or on acreage basis? (13) Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield? ( 7 ) IN the case of Commissioner of Income-Tax, Gujarat-I vs. Smt. Lilavati Thakorelal Patel, reported in (1985) 152 ITR 565 this Court after adverting to various pronouncements chose to reiterate the propositions in the following terms: in determining whether land is agricultural or not, the important factors which should be taken into consideration are: (i) classification of the land in the revenue records as agricultural land; (ii) actual or ordinary use of the land for agricultural purposes at or about the relevant time; (iii) whether such user was for a substantial period or it was for a temporary duration only by way of a stop-gap arrangement; (iv) rational proportion of income from the land to investment made therein; (v) permission under s. 85 of the Bombay Land Revenue Code for change of user, and when and by whom it has been obtained; (vi) cessation of the agricultural use and converting the land to non-agricultural purpose; (vii) non-use for agricultural purpose of the land though listed in revenue records as agricultural land; (viii) its situation physical characteristics and development in the vicinity; (ix) permission under sec. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, and when and by whom; (x) price of the land on sale, and whether the value was determined as a unit of the land or on yardage or on acreage basis? we do not think we could add on to what all have been expressed in the pronouncements referred to above and we can only reiterate them. ( 8 ) HERE we find a case where the Tribunal ha felt ambiguity with reference to the facts placed before it and yet proceeded to answer the question on speculative bases. The Tribunal has not chosen to advert to the acceptable tests on the question. Obviously the Tribunal had no occasion to apply the tests to the facts of the case and find out an answer one way or the other. But doing so alone will be a satisfactory way of dealing with the question. The Tribunal has not chosen to advert to the acceptable tests on the question. Obviously the Tribunal had no occasion to apply the tests to the facts of the case and find out an answer one way or the other. But doing so alone will be a satisfactory way of dealing with the question. We can only characterise the findings of the Tribunal in the case before us as having been arrived at without proper application of the mind to the relevant tests governing the question and without applying them to the facts of the case. Certainly we cannot subscribe our support to this method ad manner of dealing with the subject. We can call it not only a defective finding, but also an obscure finding; without reference to the rests. Unless and until the Tribunal after adverting to the well laid down tests and applying them to the facts of the case comes to the conclusion positively one way or the other we will not be able to answer the question. Since that has not happened in the present case, we are disabled from answering the question. The result is, we are obliged to send back the matter to the Tribunal for it to advert to the question once again keeping in mind the principle and tests laid down by the pronouncements which we have referred to as above and then come to a positive conclusion one way or the other and dispose of the appeal finally. Accordingly, the matter will stand remitted to the Tribunal for it to dispose of the same in the manner indicated as above. This reference is disposed of in the above terms with on order as to costs. .