TaxTMI 
TaxTMI 
2018 (4) TMI 494
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....he deduction towards cost of land while confirming the assessment of the income of Rs. 48,98,790/- under the head "Profits and Gains from Business". 2.2 The Ld. CIT(A) has erred on facts and in law in not considering the fact that for better realization of its capital asset, the HUF sold the agricultural land after plotting and the same being not a capital asset u/s 2(14) of the Act, the same is not liable for capital gain." 2. The ground No. 1 of assessee's appeal is against the finding of the ld. CIT(A) wherein he has not accepted the contention of the assessee that the plots on the agriculture land belongs to the HUF and not to the assessee in his individual capacity. As per ld. CIT(A), the assessee has failed to produce sufficient evidence both at the assessment and during the appellate proceedings to prove that the land belongs to the HUF or a valid HUF exists. The ld. CIT(A) has also taken note of fact that the sale documents bear the name of the appellant in his individual capacity and the sale proceeds are also deposited in the appellant's individual bank account. The ld. CIT(A) also held that the assessee has not brought on record whether he is filing return of....
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....esent case, land is not succeeded by the assessee from his father but inherited by him from his forefathers. Therefore, the land under consideration is an HUF land in the hands of assessee and not an individual land. 4. The ld DR is heard who has relied on the findings of the lower authorities. 5. We have heard the rival submissions and purused the material on record. It is noted that Shri Mahaveer inherited ½ share of his father's share in the subject ancestral land situated in Village Budhi Bawal, Tehsil Kotkasim, District Alwar after the death of his father, Shri Gagandeen. The question for consideration whether on death of his father, Shri Gagandeen, the assessee Shri Mahaveer inherited the share in the subject land in his individual capacity or in the capacity of his HUF. Apparently Shri Gagandeen expired after coming into force of the Hindu Succession Act, 1956 without leaving behind any will, the land has thus devolved on the assessee by intestate succession under Section 8 of the Hindu Succession Act whereby ½ share has devolved on the assessee, Shri Mahaveer and ½ share has devolved on his brother and son of the deceased, Shri Kalya. 6. In thi....
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....ty in the hands of the deceased assessee's sons and grandsons. The relevant findings of the Hon'ble High Court are as under: "....It will be seen in this case that the AAC decided the appeal under its order dated 19-3-1981 (Annr. B) on the basis of Gujarat High Court ruling in the case of Dr. Babubhai Mansukh Bhai ( supra). It will be further seen from the order of the Tribunal dated 24-3-1982 that the Tribunal dismissed the appeal relying on its earlier decision in the case of MM. Jain ( supra) and the aforesaid case of The Gujarat High Court. The above case of the Gujarat High Court and other cases of the Allahabad High Court, Andhra Pradesh and Madhya Pradesh High Courts were considered by the Apex Court in the case of CWT v. Chander Sen AIR 1986 SC 1753 and the Supreme Court held that the view taken in the aforesaid case of Gujarat High Court P in Dr. Babubhai Mansukhbhai is not the correct view and the Apex Court upheld the view taken by other High Courts referred to above. The Apex Court in para 20 of the aforesaid judgment said: "20. In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not po....
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....hallenged the findings of the ld CIT(A) in affirming the action of the AO in treating the sale of plots of agriculture land as adventure in the nature of trade and thereby assessing the income as business income instead of working out long capital gains on sale of these plots of land. It has further been contended that what has been sold is an agriculture land and the same not being a capital asset u/s 2(14) of the Act, it is not liable for capital gains tax. It has also been contended that the deduction towards the cost of land has not been allowed while determining the income under the head profit and gains from business. 11. Briefly stated, the facts of case are that basis receipt of the AIR information, the Assessing Officer observed that there is a cash deposit of Rs. 11,19,000/- in the bank account maintained by the assessee with the Punjab National Bank and the said income has escaped taxation and after regarding reasons, notice u/s 148 was issued to the assessee. In response to the notice, the assessee filed his return of income disclosing other income of Rs. 88,500/-. During the course of reassessment proceedings, the assessee submitted that the cash so found deposited ....
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....e assessee before the ld. CIT(A), we refer to the findings of ld. CIT(A) which are reproduced as under:- "8.3 I have perused the assessment order and submissions of the appellant. Following facts have emerged: 1. That the appellant is the owner of agricultural land Khasra No. 1219, Budhi Bawal, Kotkasim. 2. That the appellant had developed the agricultural land into small plots and sold them as residential plots to various purchasers over a period of time. 3. That 31 such plots have been sold over a period of 3 years as per the submission of the appellant. 4. That such plots have been sold as residential plots as per the registered deed and the stamp duty paid. 5. That the return of income has been filed by the appellant in response to notice under section 148 of the Act but not declared any income on sale of such plots. 6. That the AO has treated the income arisen out of development and sale of such plots as business income. 7. That the appellant is claiming exemption u/s 10(1) within the meaning of section 2(1A) of the IT Act, 1961. 8.3.2 I have considered the above mentioned facts. As per the khasra....
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....esale allied to his usual trade or business or incidental to it? (2) What is the nature of commodity purchased and sold and in what quantity was it purchased or resold? (3) Did the purchaser by any act subsequent to the purchase improve the quality of commodity purchased and thereby made it more readily resaleable? (4) What were the incidences associated with the purchase and sale and whether they are akin to the operations usually associated with trade or business? (5) Are the transactions of the purchase and sale repeated? (6) In regard to the purchase of the commodity and its subsequent possession by the purchaser, does the element of pride of possession come into picture? 8.34 Now, applying the parameters set by the Hon'ble Supreme Court in the present case, the sequence of events leading to the eventual sale of the land plots do not seem to help the cause of the appellant. The appellant had inherited the land which was an agricultural land at the time of inheritance. Then the appellant had developed part of the agricultural land into 34 smaller plots, developed access road within the plotted land and sold to individual purc....
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....inguished from facts of the case decided by the Hon'ble Rajasthan High Court judgment. In the present case it is not only the mere sale and purchase of lands. It is a sequence of events showing exploitation of the land purchased, over a period of time that shows the intent and motive of the appellant in the present case as is discussed in details above. The AO has further brought on record all the facts and conducted necessary enquiries before finalizing the assessment order. Therefore, I agree with the contention of the AO that the exploitation of agricultural land by converting it into residential plots before selling them to the purchasers is indeed a business venture. As per the Apex court parameters, it is my considered view that the exploitation of land assets by the assessee also comes under the purview of 'adventure in the nature of trade' and the income arisen is liable to be taxed in the hand of the appellant as 'business income. However, since the appellant had developed the land before selling them as it brought out in the Inspectors Report also, I find it reasonable to allow 10% of the receipts as allowable expenditure under section 37 of the Act for the possi....
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.... trade or business. The word "business" has been defined u/s 2(13) of the IT Act, 1961, which includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture. To consider the question of business, there must be regular activity of purchasing and selling. In the present case, there is nothing on record to show that the land when acquired was with an intention to sell it by plotting. Basically, it was an ancestral land and was developed and sold after converting it into the plots with a view to secure the better price. 4. In various cases, it has been held that purchase of land once upon a time and thereafter selling the same in piecemeal after development, the profit arising would be taxed under the head Capital gain and cannot be treated as adventure in the nature of trade. Some of these decisions are as under:- * Commissioner of Income-tax Vs. Sohan Khan & Mohan Khan [2008] 304 ITR 194 (Raj.) * CIT Vs. Harjit Singh Sangha (2013) 217 Taxman 201 (P&H) (HC) (Mag.) * Smt. M. Vijaya & Ors. Vs DCIT (2015) 116 DTR 393 (Hyd.) (Trib.) * Saroj Kumar Mazumdar Vs. Commissioner of Income Tax 37....
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.... 2(14) of the Act are not liable for capital gains tax. The ld CIT(A) has returned a finding that the assessee has developed his share of agricultural land into 34 residential plots and sold them to various purchasers as residential plots and stamp duty has also been paid on conveyance deed so executed accordingly. Further, on perusal of para 22 of the assessment order, it is noticed that the plot size ranges from 900 sq ft to 2964 sq ft of the individual residential plots of lands as per list submitted by the assessee. Where the assessee himself through his conduct and affirmative action is admitting that what has been sold are residential plots of land, we failed to appreciate the basis of the contention so raised by the ld AR that what has been sold by the assessee are agricultural plots of land. Further, as we have noted above, the size of the plots so sold doesn't warrant any iota of doubt that these are residential plots and not agricultural plots of land. Further, there is no evidence on record to suggest that at the time of sale, agriculture activities were being carried on the said pieces of land. Our decision is also fortified by the judgement of the Hon'ble Supreme Court....
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....tutory recognition that even asset initially acquired as investment can be subsequently converted into stock-in-trade. Apparently, none of the decisions cited at the Bar considers the impact of the provisions of section 45(2) of the Act, which to our mind, make those decisions distinguishable. 20. As per section 45(2), profits & gains arising from the transfer by way of conversion by the owner of a capital asset into or its treatment by him as stock in trade of business carried on by him, shall be chargeable to tax as income of the previous year in which such stock in trade is sold or otherwise transferred and for the purpose of section 48, the fair market value of the asset on the date of such conversion shall be deemed to be full value of consideration received or accruing as a result of the transfer of capital asset. Therefore, fair market value of the asset on the date of conversion as reduced by the cost of acquisition is required to be assessed under the head "capital gain". Further, sales realization of the stock-in-trade over such fair market value is required to be assessed as "business income". 21. In this regard, reference can be drawn to the decision of the Specia....
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....applicable in respect of such conversion. However, capital gain could not be computed unless such stock-in-trade was sold or otherwise transferred. The gain arose only on sale or transfer otherwise. It did not amount to giving retrospective effect to the statutes but applying the law applicable on the date of taxable event, i.e., sale of converted assets. The CBDT Circular No. 397, dated 16-10-1984 clarifies that capital gain in cases of converted assets in closing stock would be chargeable in the year when such converted asset is actually sold as stock-in-trade; in other words, not in the year of conversion, but the year of actual sale. In the two cases before the Supreme Court, the decision was that on conversion there is no profit as no one can make profit out of himself. That situation is now taken care of by introducing section 45(2). It provides for taxation where the converted stock-in-trade is sold and the difference between the market value on the date of conversion and actual cost is the capital gain. That was what had been assessed by the Assessing Officer. Accordingly, the order of the first appellate authority was to be upheld." 22. In this regard,....
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....he Zamindari was abolished on 1.7.1961 was partly inherited by the assessee from his father. The remaining part was purchased by him by sale deeds dated 16.12.1958 and 16.5.1959. The assessee along with his co-partners had filed suit for declaration, which was decreed on 5.6.1968. The sons of Shri Narain Rao Sapre had filed suits for cancellation of sale deeds and for possession. The suit was decreed cancelling the sale deed to the extent of 2/3rd share but claim for possession was not allowed. In the circumstances, the stand taken by the assessee that the property was inherited as H.U.F., was rightly disbelieved. The assessee was an employee of Nagar Palika Parishad, Jalaun at Orai. He held the land in urban area as capital asset and started selling it in pieces of 43 sale deeds between January, 1984 to March, 1991 in plots ranging from 60 sq. mtrs. to 1815 sq. mtrs. Since no agricultural operations were carried on, the income tax authorities rightly concluded that the capital asset was converted into stock-in-trade, and that sales of plots in the case of such land would be treated to be business activity to make profits. 26. The Commissioner of Income Tax (Appeals) also ....
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....t of the land measuring 5.075 acres, out of the total extent of 10.150 acres, were sold even before filing the demerger application before this Court. The aforesaid sale was not brought to the notice of the High Court. The High Court of Madras, as per the Scheme of Demerger approved EML demerging with M/s. EHPL, transferring the real estate division of EML to EHPL as a going concern. As on 31.03.2010, the assessee company has shown the land in question as stock in trade and the same was later converted as Fixed Asset, by the Board Resolution. In the case of sale of 50% of the same property, out of 10.150 acres of land, for the assessment year 2009-10 was considered, by the co-ordinate Bench of the Tribunal in the case of Essorpe Mills Ltd. (supra), wherein it was held that the gain on transfer of property up to the date of conversion into stock- in-trade has to be assessed under the head "capital gains" and the gain in respect of property i.e. after the date of conversion into stock-in-trade has to be assessed as business income. As the Assessing Officer computed the entire sale consideration under the head long term capital gains, he did not apply the provisions of Section 45(2) o....
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....d in small parcels on a profit. The Tribunal has also observed in its order that lands as in the year 1972 could be held either as an investment or stock-in-trade and that the assessee had held it as investment till July 6, 1972, and it is only thereafter that it had treated the land as its stock-in-trade. the Tribunal's view that for finding out the business profit for the sale of lands, the market value on the date of conversion of the asset from investment to business asset should be taken and not the original price for which the assessee purchased the property is sustainable in law." The decision of the Hon'ble Supreme Court in the case of Groz-Beckert Saboo Ltd. (supra), wherein an assessee converts his capital assets into stock-intrade and starts dealing in them, the taxable profit on the sale must be determined by deducting from the sale proceeds the market value at the date of their conversion into stock-in-trade and not the original cost of the assessee. In paragraph 2, it has been held as follows :- "2 ........ There can, therefore, be no doubt that these raw materials and semi-finished needles were received by the assessee as capital assets and ....
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....eted at the end of financial year 2009 and gravel road developed". There is report of the Inspector on record who has visited the place on 19.3.2015 and has given a finding that about 40-50 residential houses have already been built where people are staying, roads have been laid down, a hospital by name of Shyam Hospital is running on one of the plots, a school by name of little star school is also running on one of the plots and the whole area has been developed as a residential colony. The said findings of the Inspector remain unrebutted before us. The Stamp duty authorities have also recognized the plotting as residential plots which is very much evident from the registered sale deeds and the stamp duty paid on such sale of residential plots. All these facts taken together shows clearly that the assessee has taken affirmative steps and actions where he has converted his agricultural land into residential stock-intrade of his business of selling the plots of land for earning profit. The very nature and purpose of the agriculture land has been changed and we agree with the findings of the ld CIT(A) that such change is an irreversible change where very nature and purpose of the lan....
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....à¥à¤°à¥€ से पà¥à¤°à¤¾à¤ªà¥à¤¤ राशि रू. 13,87000/- (6,04,200 + 3,96,000 + 3,87,000) में ही उसने उसके बैंक खाते में जमा करवाया है। बैंक खाते में जमा राशि का करदाता से कोई लेना-देना नही है करदाता का यह कहना कि उसके दà¥à¤µà¤¾à¤°à¤¾ HUF की जमीन बेची गई है करदाता की वà¥à¤¯à¤•à¥à¤¤à¤¿à¤—त जमीन नही है, यह तरà¥à¤• बिà¤....
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....र HUF के सà¤à¥€ सदसà¥à¤¯à¥‹à¤‚ के हसà¥à¤¤à¤¾à¤•à¥à¤·à¤° किये जाते परनà¥à¤¤à¥ विकà¥à¤°à¤¯ की रजिसà¥à¤Ÿà¥à¤°à¥€ पर केवल करदाता के ही हसà¥à¤¤à¤¾à¤•à¥à¤·à¤° है। करदाता की तरफ से की HUF की जमीन होने का कोई पà¥à¤°à¤®à¤¾à¤£à¤¿à¤• साकà¥à¤·à¥à¤¯ पà¥à¤°à¤¸à¥à¤¤à¥à¤¤ नहीं किया गया। इसके अलावा विकà¥à¤°à¤¯ दसà¥à¤¤à¤¾à¤µà¥‡à¤œà¥‹à¤‚ में यह बिलà¥....
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....à¥à¤· व अनà¥à¤¯ वरà¥à¤·à¥‹ में कà¥à¤² लगà¤à¤— 150 आवासीय à¤à¥à¤–णà¥à¤¡ बेचे गये थे। इस समà¥à¤¬à¤¨à¥à¤§ में कारà¥à¤¯à¤¾à¤²à¤¯ के निरीकà¥à¤·à¤• से à¤à¥€ जाà¤à¤š करवाई गई थी। कारà¥à¤¯à¤¾à¤²à¤¯ के निरीकà¥à¤·à¤• ने सà¤à¥€ पहलà¥à¤“ं की जॉच कर दिनांक 20.03.2015 को रिपोरà¥à¤Ÿ पà¥à¤°à¤¸à¥à¤¤à¥à¤¤ की और रिपोरà¥à¤Ÿ Document 3 में बताया कि "उपरोकà....
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....¤¨à¤¾à¤® जाना जाता है। इस जमीन पर लगà¤à¤— 40-50 मकानों का निरà¥à¤®à¤¾à¤£ हो चà¥à¤•à¤¾ है। कà¥à¤› पर काम चालू है à¤à¤µà¤‚ लगà¤à¤— 100-150 पà¥à¤²à¤¾à¤Ÿà¥‹ पर बाउणà¥à¤¡à¥€ हो रही है। उकà¥à¤¤ खसरा न. 1219 में मिटà¥à¤Ÿà¥€, बजरी, रोडी के रासà¥à¤¤à¥‡ (रोड) बने हà¥à¤ है केवल डामà¥à¤¬à¤° नहीं डाला गया हैं मौके पर यह रिहायशी à¤....