2016 (5) TMI 1609 - AT - Income Tax

Assessee's appeal allowed for incorrect inclusion of co-owner's share in business income from land sale

M/s. Saraswati Builders Versus Asst. CIT, Central Circle Amritsar.

ITAT Amritsar allowed assessee's appeal regarding incorrect calculation of business income from land sale. AO erroneously included co-owner's share in ... Unaccounted transactions regarding sale of land - Determination of correct income of the assessee - co-ownership in land sold - Assessee submitted that the AO had wrongly calculated the addition as the share of assessee was admittedly 1825.49 marlas being 43% and this fact was verifiable from copy of seized documents - AR submitted that assessee alongwith other joint owners of certain land had sold such land and had claimed to be exempt from capital gains being the asset was agricultural land but the same was rejected by Assessing Officer and in the case of group companies they had agreed before the Settlement Commission for taxability of such income as business income and therefore in the present appeal the assessee is not on the issue of taxability of such profits as business income but he submitted that Assessing Officer had wrongly calculated the addition by including the share of Sham Lal one of the co-owner in the income of assessee which is highly unjustified HELD THAT:- We are in agreement with the arguments of learned AR for the proposition that correct amount of taxes should be collected and AO should not misuse the lack of knowledge of the assessee. As undisputed fact that the total area of land was 4245.43 marlas as noted in the seized document placed at (PB Page 843). It is also undisputed fact that share of assessee was 43% therefore, the share of assessee was only 1825.49 marlas. It is also undisputed fact that the rate for the purpose of calculation of income of the assessee has been taken from the seized document @Rs.18750/- per marla. The above fact is further fortified from para 20 of order of settlement commission where the settlement commission has also noted the share of the assessee at 43% out of total land of 4243.55 marlas and had also noted that said land was sold at Rs.18750 per marlas. Assessee’s share was definitely 43% of the total land and the gross receipts from sale of such land @ Rs.18,750 per marla comes out of at Rs.34,22,7,938/- and therefore, the Assessing Officer should not have taken the value of sale consideration at Rs.4,65,09,900/-. Contention of learned AR that Assessing Officer has included the share of Mr. Sham Lal also seems to be correct because of the fact that if the share of Mr. Sham Lal is included in the land holding of assessee, it will come out at about the same figure for which Assessing Officer had made the addition. However, on this account also the action of the Assessing Officer is not justified as per Mr. Sham Lal had already offered his share of income from land as business income before Settlement Commission. CIT(A), has reduced the addition after reducing the cost price of the land as 35,41,391/- where as in our considered opinion the learned CIT(A) should have restricted the same to Rs.30,68,6,547/- (being correct sale value Rs.34227938/- purchase cost Rs.3541391/-). Therefore, we allow ground of assessee’s appeal and direct the Assessing Officer to restrict the addition confirmed by learned CIT(A) at Rs.42,95,9,509/-to Rs.30,68,6,547/- only. Contention of the assessee that the asset should have been treated as capital asset - We do not find any force in the grounds of appeal as Mr. Sham Lal and his group companies has already admitted before the settlement commission that the same may be treated as business income, therefore, ground Nos. (i) to (iii) are dismissed. Issues Involved:1. Addition on account of sale of property at Abohar.2. Treatment of sale consideration of the property at Abohar as stock in trade.3. Consideration of the impugned property as an investment.4. Proportionate share in the land.5. Admission of additional evidence under Rule 46A.6. Deletion of addition on account of non-genuine loans.7. Deletion of addition on account of unaccounted receipt on sale of Muktsar Colony.8. Deletion of addition on account of disallowance under section 40A(3).Detailed Analysis:1. Addition on Account of Sale of Property at Abohar:The assessee contended that the CIT(A) erred in upholding the addition of Rs.4,29,59,509 out of Rs.5,65,09,000 made by the Assessing Officer (AO) on account of the sale of property at Abohar. The AO included the share of a co-owner, Mr. Sham Lal, in the assessee's income, leading to double taxation since Mr. Sham Lal had already offered his share before the Settlement Commission. The Tribunal agreed with the assessee, directing the AO to restrict the addition to Rs.3,42,27,938, reflecting the correct share of the assessee.2. Treatment of Sale Consideration as Stock in Trade:The CIT(A) treated the sale consideration of the property at Abohar as stock in trade rather than an investment, confirming the addition. The Tribunal upheld this view, noting that the land was initially treated as stock in trade and only reclassified as an investment after a search operation. The Tribunal found this reclassification to be a strategic move to claim tax exemption.3. Consideration of the Impugned Property as an Investment:The assessee argued that the property was an investment and thus a capital asset under section 2(14), on which no capital gain was leviable. However, the Tribunal dismissed this argument, agreeing with the CIT(A) that the land, initially treated as stock in trade, was reclassified as an investment only after a search operation. The Tribunal found this reclassification to be a strategic move to claim tax exemption.4. Proportionate Share in the Land:The assessee claimed that the addition confirmed by the CIT(A) was excessive as it included the share of Mr. Sham Lal. The Tribunal agreed, directing the AO to restrict the addition to the correct share of the assessee, Rs.3,42,27,938, instead of Rs.4,65,09,900.5. Admission of Additional Evidence under Rule 46A:The Revenue contended that the CIT(A) erred in admitting additional evidence under Rule 46A. The Tribunal found that the CIT(A) had duly forwarded the submissions to the AO and obtained a remand report. The Tribunal upheld the CIT(A)'s decision to admit the additional evidence, noting that the AO had not sought further evidence during the assessment proceedings.6. Deletion of Addition on Account of Non-Genuine Loans:The CIT(A) deleted the addition of Rs.2,23,67,907 made on account of non-genuine loans. The Tribunal upheld this deletion, noting that the AO had verified the unsecured loans and accepted their genuineness in the remand report.7. Deletion of Addition on Account of Unaccounted Receipt on Sale of Muktsar Colony:The CIT(A) deleted the addition of Rs.1,06,00,000 made on account of unaccounted receipts on the sale of Muktsar Colony. The Tribunal upheld this deletion, noting that the AO had verified the appellant's contentions based on seized records and found them correct.8. Deletion of Addition on Account of Disallowance under Section 40A(3):The CIT(A) deleted the addition of Rs.9,29,650 made on account of disallowance under section 40A(3). The Tribunal upheld this deletion, noting that the additional evidence provided by the assessee was consistent with the original claim and that the AO had not brought any adverse evidence on record.Conclusion:The Tribunal partly allowed the appeal filed by the assessee, directing the AO to restrict the addition related to the sale of the property at Abohar to Rs.3,42,27,938. The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decisions on the admission of additional evidence and the deletion of various additions.