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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
आदेश / ORDER
PER VIKAS AWASTHY, JM :
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), Aurangabad dated 31-12-2013 for the assessment year 2009-10.
The appeal is time barred by 278 days. The assessee has filed an application seeking condonation of delay supported by an affidavit. The ld.
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AR of assessee submitted that the impugned order was passed by the First Appellate Authority on 31-12-2013 and was received by the assessee/appellant on 10-01-2014. During that period the assessee aged around 75 years had undergone angioplasty and was admitted to the hospital and thereafter was advised bed rest. The assessee is engaged in real estate business and is the sole person managing business affairs, hence, due to medical emergency could not attend to the business properly.
We have examined the application and the affidavit filed by the assessee/appellant seeking condonation of delay. A perusal of the affidavit shows that the delay in filing of the appeal is on account of medical exigencies. The Hon‟ble Supreme Court of India in the case of Ram Nath Sao @ Ram Nath Sahu and Others Vs. Gobardhan Sao and Others reported as 2002 AIR 1201 has held that acceptance of explanation furnished seeking condonation of delay should be the rule and refusal an exception, more so when no negligence or inaction or want of bonafide can be imputed to the defaulting parties. Taking a pedantic and hyper technical view of the matter, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction. The Hon‟ble Apex Court in various other decisions has taken similar view in accepting the explanation furnished by the assessee for condoning the delay in filing of appeal. Thus, in view of the law laid down by the Hon‟ble Apex Court and the reasons furnished by the assessee/appellant, the delay of 278 days in filing of appeal is condoned. The appeal is admitted to be heard and disposed of on merits.
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The brief facts of case as emanating from records are : The assessee filed return of income for the impugned assessment year on 28-07-2009 declaring total income of Rs.1,11,880/-. The case of assessee was selected for scrutiny under CASS to examine cash deposits of Rs.52,00,000/- in the saving bank account of the assessee. During the course of scrutiny assessment proceedings, the Assessing Officer made addition in the income returned on following counts :
i. Cash deposits in saving bank account Rs.12,00,000/-. ii. Interest income Rs.71,538/-. iii. Short Term Capital Gain on sale of land (in Gut No. 161 village Balapur, Taluka Aurangabad) Rs.92,76,800/-.
Aggrieved by the assessment order dated 30-12-2011, the assessee filed appeal before the Commissioner of Income Tax (Appeals) assailing the additions. The First Appellate Authority vide impugned order restricted the addition on account of cash deposits in the bank to Rs.6,00,000/-. As regards Short Term Capital Gain on sale of land, the Commissioner of Income Tax (Appeals) upheld the findings of Assessing Officer and confirmed the addition. Against the findings of Commissioner of Income Tax (Appeals) the assessee is in second appeal before the Tribunal by raising following grounds : “1. On the facts and in the circumstances of the case and in the law the Lower authorities have erred in treating the transaction of Business Income as Capital Gain and, further erred in applying the provisions of section 50C of the Income Tax Act, 1961 by disregarding appellants contention in this regards. 2. On the facts and in the circumstances of the case and in the law the Lower authorities have erred in making addition of Rs.6,00,000/- by disregarding the fact that all the necessary documentary evidences in support of cash deposited in Bank has been kept on record and the same has been accepted partially.
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The appellant craves for to leave, add, alter, modify, delete above ground of appeal before or at the time hearing, in the interest of natural justice.”
Shri Pramod Shingte appearing on behalf of the assessee submitted that the assessee had purchased land admeasuring 4 Acres 14 Gunthas on 25-06-2008 in the name of his son Akram Khan for a total consideration of Rs.30,00,000/-. The adjoining land admeasuring 2 Acres 9 Gunthas was purchased by Santosh Vinayakrao Paradhe and Ramrao Bhagaji Khade Patil. The assessee, Santosh Vinayakrao Paradhe and Ramrao Bhagaji Khade Patil on 04-07-2008 entered into Joint Venture (JV) Agreement for plotting and development of entire land. JV Agreement for the development of aforesaid land is at pages 79 & 80 of the paper book. However, the development project as planned by the assessee along with two other persons could not take of, consequently project was shelved and land was sold to third party vide registered Sale deed dated 26-08-2008 for a consideration of Rs.50,00,000/-. The assessee was having 70% share in joint venture and hence had share Rs.35,00,000/- in the sale consideration of land. The assessee offered profit from sale of land as business income. The Assessing Officer held that the land sold was capital asset and the gain arising from same is Short Term Capital Gain. The Assessing Officer further invoked the provisions of section 50C for the purpose of valuation of land. The Assessing Officer adopted Collector rate i.e. Rs.1,62,74,000/- as mentioned in Sale deed dated 26-08-2008 as the value of land to arrive at Short Term Capital Gain.
4.1 The ld. AR contended that for determining the nature of asset the intention of the assessee has to be seen. In the present case, the assessee had acquired land for business purpose and hence the provisions of section 50C does not get attracted. The ld. AR referred to Sale Deed at
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page 64 and pointed that the market value of land on the date of sale was Rs.1,62,74,000/- whereas the assessee could sell the same for Rs.50,00,000/- only.
4.2 The ld. AR submitted that the Pune Bench of the Tribunal in the case of Dilip Battu Karanjule Vs. Income Tax Officer reported as 74 taxmann.com 12 has held that where the assessee purchased the land by borrowing funds and ultimate sold the land in short span of time without putting land for agricultural use at any point of time, the purchase and sale transactions of land were held to be adventure in nature of trade.
4.3 In respect of addition of Rs.6,00,000/- on account of cash deposits in the bank, the ld. AR submitted that the entire amount is reflected in the cash book. The Assessing Officer made addition of Rs.20,00,000/- disbelieving the gifts received by the assessee from his sons amounting to Rs.20,00,000/-. The assessee has filed confirmations from his sons, the same are at pages 20 to 23 of the paper book. The Commissioner of Income Tax (Appeals) noticed that the source of amount of gifts received by the assessee/appellant stands explained and hence restricted the addition to Rs.6,00,000/-. The assessee has explained entire amount deposited in the bank. However, the authorities below have simply brushed aside the explanation furnished by the assessee and has made the addition.
On the other hand Dr. Vivek Aggarwal representing the Department vehemently defended the order of Commissioner of Income Tax (Appeals) in confirming the additions. The ld. DR submitted that the plea of assessee that the land was purchased for business purpose is an afterthought. The assessee neither in the earlier assessment years nor in the subsequent
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assessment year has declared any business income from development of land. The joint venture between the assessee and other two persons placed on record at pages 79 & 80 of the paper book is an unregistered document. The correction deed at page 50 of the paper book is also a self serving document as the same is unregistered and does not bear the signature of all the parties to Joint Venture. The assessee has failed to produce any document on record indicating that any development activities were carried out on the land. A perusal of the sale deed of land would show that the land has been sold to an agriculturist. Hence, there was no commercial exploitation of land by the assessee at any point of time.
5.1 As regards ground No. 2 the ld. DR submitted that the Commissioner of Income Tax (Appeals) has sought remand report from the Assessing Officer on the explanation furnished by the assessee. The assessee has failed to rebut the contents of remand report and hence, the Commissioner of Income Tax (Appeals) has confirmed the addition to the tune of Rs.6,00,000/-
We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. The assessee in appeal has assailed the impugned order on two counts : i. Treating the gain on sale of land as Capital Gain. ii. Confirming the addition of Rs.6,00,000/- on account of cash deposit in the bank.
The assessee purchased land comprising in Gut No. 161 Village Balapur, Talika Aurangabad admeasuring 4 Acres 14 Gunthas in the name of his son for total consideration of Rs.30,00,000/- vide registered Sale
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Agreement dated 02-07-2008. The adjoining land admeasuring 2 Acres 9 Gunthas was purchased by Santosh Vinayakrao Paradhe and Ramrao Bhagaji Khade Patil on the same date. The assessee entered into Joint Venture Agreement on 04-07-2008 with the co-owners of adjacent land for plotting and development of land. The Joint Venture proposed could not take of and the assessee along with the co owners of the adjoining land sold the entire piece of land on 26-08-2008 for a consideration of Rs.50,00,000/-. The assessee offered his share (70%) of profit as business income. The authorities below disbelieved the assessee‟s explanation and the Joint Venture Agreement and assessed gain as Capital Gains by invoking the provisions of section 50C of the Act.
The question whether the land was purchased as business asset or for investment as capital asset can be answered only by examining the facts, sequence of events and reading the intention of the assessee. It is an undisputed fact that prior to the present transaction of purchase and sale of land, the assessee neither in earlier years nor in the subsequent assessment years has indulged in purchase, sale, development of land etc. However, single transaction of sale-purchase of land can also constitute business transaction if the intention of the assessee right from the stage of purchasing the land was to hold the same for trade [Commissioner of Income Tax Vs. Sutlej Cotton Mills Supply Agency Ltd., 100 ITR 706 (SC)]. In the present case the sequence of events are as under : Events Date Purchase of land by assessee 25-06-2008 Registered Sale deed executed 02-07-2008 Joint Venture Agreement with the co-owners of adjoining 04-07-2008 land Sale of land 26-08-2008
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The intention of the assessee to purchase the land for business purpose is reflected through the Joint Venture Agreement executed shortly after the purchase of land. The Revenue has rejected the Joint Venture Agreement on two counts : i. The Joint Venture Agreement is unregistered. ii. It is an afterthought.
We do not find merit in both the reasons for rejecting the Joint Venture Agreement. A perusal of Joint Venture Agreement at page 79 of the paper book shows that the same has been executed on non-judicial stamp paper of Rs.100/-. The endorsement on the Stamp Paper shows that the same was purchased on 04-07-2008 i.e. shortly after purchase of land. The Joint Venture Agreement has been signed by all the three co- owners of the land specifying the share of profit on sale of plots and the activities to be performed by the parties to Joint Venture for development of land. Thus, the sequence of events highlighted above negates the reasoning of „afterthought‟.
The Joint Venture Agreement in the present case is in the nature of Memorandum of Understanding between the owners of land for collectively developing and plotting of land. Joint Venture Agreement does not purport to transfer any right in land or land to the third party or parties to the Joint Venture. The Joint Venture does not contain any contract to transfer for consideration, any immovable property. The Joint Venture Agreement in the present case does not fall within the category of documents of which registration is compulsory u/s. 17 of the Registration Act, 1908. Hence, the second reasoning given by the Revenue to discard Joint Venture Agreement holds no water. The assessee has discharged his onus by furnishing Joint Venture Agreement reflecting his intention at the time of
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purchase of land. A Joint Venture Agreement placed on record shows the intention of the assessee to develop the land and sell the same after plotting. Since, the entire chunk of land was sold in a short span of two months time from the date of purchase that explains the reason for not seeking any approvals from Government authority for plotting etc. or carrying out any other development activity on the land. Thus, from the perusal of documents on record we find merit in the submissions of the assessee that the land was purchased by the assessee with the intention to exploit it commercially and to hold it as business asset.
Since, we have held the land as business asset, the provisions of section 50C does not get attracted. Accordingly, the findings of First Appellate Authority on this issue are set aside and ground No. 1 of the appeal is allowed.
In ground No. 2 the assessee has assailed the addition of Rs.6,00,000/- on account of cash deposit in the bank. The Assessing Officer during the assessment proceedings found that cash Rs.52,00,000/- was deposited in the bank account of the assessee during the period relevant to assessment year 2008-09. The assessee explained the source of cash deposits. However, the Assessing Officer was not fully convinced with the explanation and made addition to the extent of Rs.12,00,000/-. In First Appellate proceedings the Commissioner of Income Tax (Appeals) further accepted the explanation of assessee to the extent of gifts Rs.20,00,000/- received by the assessee from his sons and after adjusting the same restricted the addition to Rs.6,00,000/-. Before us the assessee has not been able to controvert the findings of Commissioner of Income Tax (Appeals). Hence, we do not find any reason to interfere with the
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findings of Commissioner of Income Tax (Appeals) on this ground. Accordingly, ground No. 2 raised in the appeal is dismissed.
In the result, the appeal of assessee is partly allowed.
Order pronounced on Monday, the 08th day of October, 2018.
Sd/- Sd/- (डी. करुणाकरा राव/D. Karunakara Rao) (ववकास अवस्थी / Vikas Awasthy) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक / Dated : 08th October, 2018 RK आदेश की प्रयिलऱवऩ अग्रेवषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent. 2. आयकर आयुक्त (अऩीऱ) / The CIT(A), Aurangabad 3. 4. The Commissioner of Income Tax, Aurangabad ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच, 5. ऩुणे / DR, ITAT, “B” Bench, Pune. गाडड फ़ाइऱ / Guard File. 6. //सत्यावऩत प्रयत // True Copy// आदेशानुसार / BY ORDER,
यनजी सधचव / Private Secretary, आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune