HIMAGIRI BIO TECH PRIVATE LIMIED(NOW MERGED WITH HILL COUNTY PROPERTIES LIMITED),HYDERABAD vs. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(2), HYDERABAD

ITA 999/HYD/2018Status: DisposedITAT Hyderabad08 February 2021AY 2013-145 pages

AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issue to the Assessing Officer for fresh adjudication. The AO is to consider the companies' Memorandum of Association, book treatment of land, and business activities to determine if the write-offs constitute business or capital loss.

What were the facts?

Several private limited companies engaged in land sales claimed write-offs of advances for land purchases as business losses. The lower authorities treated these as capital losses, considering the companies as investors rather than real estate businesses.

What were the issues?

Whether the write-off of advances for land purchases should be treated as a business loss or a capital loss, and whether the assessee entities were engaged in real estate business.

Which sections of the Income-tax Act were involved?

Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, HYDERABAD BENCHES “A” : HYDERABAD

Before: SHRI S.S.GODARA & SHRI LAXMI PRASAD SAHU

O R D E R PER BENCH :

These assessees’ appeals for AY.2013-14 arise from the CIT(A)-11, Hyderabad’s order all dated 31-01-2018 involving proceedings u/s.143(3) of the Income Tax Act, 1961 [in short, ‘the Act’]. Heard both the parties. Case files perused.

It transpires during the course of hearing that all these assessees; now stand merged with M/s.Hill County Properties Limited, have raised an identical solitary substantive grievance challenging lower authorities’ action treating loss on account of write off representing advances made for purchase of lands to the tune of Rs.33,34,977/-, Rs.1.25 crores, Rs.2 crores, Rs.1 crore, Rs.70 lakhs, Rs.2.40 crores, Rs.1.50 crores, 2.50 crores and Rs.1,89,80,000/-; appeal-wise respectively, under the head ‘business’ than capital loss(es) claimed at their

:- 3 -: 994, 995, 996, 997 998, 999, 1000 & 1001/Hyd/2018 behest. It is not in dispute that all these assessees are corporate entities stated to be engaged in sale of land and allied activities only.

Coming to the above sole issue of impugned write-off, the first assessee’s appeal raised the following substantive grounds:

“1. The order of the learned Commissioner of Income-tax (Appeals) is erroneous to the extent it is prejudicial to the appellant.

2. The order of the learned Commissioner of Income-tax (Appeals) erred in confirming the action of the Assessing Officer in disallowing the loss on account of write off of Rs.33,34,977/- representing the advances for purchase of lands.

3. The order of the learned Commissioner of Income-tax (Appeals) ought to have considered the detailed explanation submitted and ought to have allowed the amount of Rs.33,34,977/- as the business loss of the appellant.

4. Any other ground or grounds that may be urged at the time of hearing”.

We notice during the course of hearing that both the learned lower authorities have treated the assessees as mere investor(s) then engaged in adventure in real estate business. Their claim of business loss throughout has been that the corresponding agreement(s) of joint development had converted the land in issue as stock-in-trade and therefore, the advances write off herein are nothing but liable to be treated as business loss(es) only. Faced with this peculiar position, we deem it appropriate to restore the foregoing sole issue in all these appeals back to the Assessing Officer(s) for his afresh appropriate adjudication as per law keeping in mind the assessees’ Memorandum of Association/ object clauses, book

:- 4 -: 994, 995, 996, 997 998, 999, 1000 & 1001/Hyd/2018 treatment given to the corresponding parcels of land right from the date of acquisition to joint development and write off along with all business activities carried out in the intervening period respectively. It shall be very much open for the assessees to raise all factual and legal arguments before the Assessing Officer in consequential proceedings within three effective opportunities.

All these assessees’ appeals are treated as allowed for statistical purposes in foregoing terms. A copy of this common order be placed in the respective case files.

Order pronounced in the open court on 8th February, 2021

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