TaxTMI 
TaxTMI 
2018 (6) TMI 1507
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....mated addition on account of Cutting charges made by the Assessing Officer in assessment stage. 2. For that in the facts and circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) was not justified in upholding the disallowance development Cost of Rs. 10,81,200/- in the computation of short term capital gains on sales of land and in that way, in computing the said short term capital gains at Rs. 19,06,360/- instead of at Rs. 10,81,200/- in the computation of short term capital gains on sales of land and in that way, in computing the said short term capital gains at Rs. 19,06,360/- instead of at Rs. 8,25,160/- as declared by the appellant. 3. For that further grounds of appeal may be submitted or before the date of hea....
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....e claim of the assessee. Further aggrieved the assessee in appeal before us. 5. After hearing the rival contentions, perusing the papers on record and orders of the authorities below as well as case law cited I hold as follows. 6. The first issue of cutting charges, the Ld. CIT(A) at page 6 and 7 of his order states that as follows: "I have gone through the submissions of the appellant. It is seen that the AO has added Rs. 7,20,000/- on presumption basis in respect of cutting charges. The AO has presumed that cutting charges are not mentioned against the2400 MT of CR/GR Coil. It is pertinent to mention here that the aforesaid documents, the AO has found that cutting charges have been charges on aforesaid quantity. The appellant submitte....
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....and remaining Rs. 3,60,000/- is hereby deleted. This ground of appeal is partly allowed." (Emphasis ours) 7. From the above it can be seen that the Ld. CIT(A) clearly held that the addition is made on presumption basis and without enquiry. Even then, the alternative plea of the assessee was considered and 50% of the income was reduced. To my mind, when a factual finding is given by the Ld. CIT(A) that the addition is made on presumption and that no evidence was found in the impounded material that cutting charges have been levied on the quantity of 2400 MT and when the assessee has furnished confirmations from three parties to that effect., the question of making of addition on this issue does not arise. Hence the entire addition should h....
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.... such land and, therefore, agricultural income within the meaning of section 2(1) of the Income-tax Act, 1961. The Andhra Pradesh High Court in the case of S. Mutyam Reddy v. ITO [1988] 169 ITR 174 has also held that the capital gains arising from sale of land used for agricultural purposes constituted revenue derived from agricultural land and therefore agricultural income under section 2(1A) of the Act and therefore not chargeable to Central income-tax." Applying the proposition of law I hold that the profit on sale of agricultural land cannot be treated as income and brought to tax under the Income Tax Act. 9. Even if the assessee has filed a return disclosing the profit as short term capital gain, the same cannot be upheld for the re....
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..... The taxability or the authority to impose tax is independent of admission. either there can be any waiver of the right by the assessee. The Department cannot rely upon any such admission or misapprehension if it is not otherwise taxable. (Emphasis ours) This question was dealt with by this court in Bhaskar Mitter's case [1994] 73 Taxman 437, at paragraph 8 at page 442. In this decision, this court observed: "An assessee is liable to pay tax only upon such income as can be in law included in his total income and which can be lawfully assessed under the Act. The law empowers the Income-tax Officer to assess the income of an assessee according to law and determine the tax payable thereon. In doing so, he cannot assess an assessee on a....
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....ed without authority of law. The Constitution Bench of the Supreme Court in Amalgamated Coalfields Ltd. Vs. Janapada Sabha, AIR 1961 SC 964, held thus (page 965): "It may be stated at the outset that the tax now impugned has been imposed by the local authority from March 12, 1935, and that the first occasion when its validity was attached was in only 1957, though if the petitioners are right in their submissions their acquiescence might not itself be a ground for denying them relief. Before however we set out the points urged by the Ld. Attorney General in support of the petition, it would be convenience if we narrate briefly the history of the levy of this tax." The Supreme Court thus, held that acquiescence to an illegal tax for a long....