TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 505
X X X X Extracts X X X X
X X X X Extracts X X X X
....rst issue, at the time of hearing, the Ld. AR of the assessee reiterated the submissions as placed before the Assessing Officer and Ld. CIT(Appeals). The Ld. AR emphasized that the facts were already placed before the Revenue Authorities that the land at Village Dhamane is located beyond the distance of 8 kms from local limits and population is less than 10000 as per last census and therefore, these are the agricultural land and do not fall within the definition of "Capital Asset" as per Section 2(14)(iii) of the Act. It was further pointed out that even in the 7/12 extracts which is land revenue record, it was stated land was agricultural land. Further, the Ld. AR invited our attention to the decision of the Co-ordinate Bench of the Tribunal, Pune in ITA No.1299/PN/2012 and ITA No.1300/PUN/2012 for assessment year 2008-09 in the case of Shri Krishnakumar K Goyal and Shri Vinit K Goyal who are the father and brother of the assessee herein. In their cases also, the lands from same Village Dhamane and its characteristic were determined by the Tribunal in order to decide whether these surplus could be taxed as "business income" or not. The main contention of the Revenue is that the as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from Talathi of Dhamane village demonstrating that the land was more than 25 kilometers away from the nearest Municipal limits. A certificate from the office of Tehsildar dated 07.09.2007 was also furnished before the lower authorities to show that the population of village Dhamane as per the last census was 780 which is below ten thousand. It is also an accepted position that the land in question was an agricultural land notified in the land revenue records. In support of the same, a certificate of Dy. Director, Town Planning certifying that the land has been classified as an agricultural land in land revenue record is forming part of the sale-deed, a copy of which has also been placed in the Paper Book filed before us. All the aforesaid features pertaining to the land are not in dispute. However, the stand of the Revenue is that assessee being an individual engaged in the business of purchase and sale of lands, the intention to purchase the impugned land was a business proposition and not merely investment. 10. In our considered opinion, the issue as to whether impugned transaction is an activity in the nature of trade or an investment is a question which is required to be ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use the period of holding in all cases except the land at village Dhamane is quite substantial. Pertinently, assessee has taken us through the Balance Sheets filed alongwith respective returns of income from the earlier assessment years of 2004-05, 2005-06, 2006-07 as well as 2007-08 to point out that the aforesaid lands have been shown in the Balance Sheet as 'Personal Assets' and not as 'Business Assets'. 11. At this stage, we may deal with one of the observations made by the Assessing Officer, and the same has also been affirmed by the CIT(A), which is to the effect that subsequent to purchase of the land in question assessee has done land consolidation and development activity so as to improve the quality of land. The discussion made by the Assessing Officer in this regard read as under :- "5. Whether there was any act subsequent to the purchase to improve quality of the commodity purchased? Though it is not known as to whether there was any act subsequent to the purchase to improve quality of the land purchased, but the fact that the assessee has got a sale consideration of Rs. 1,53,50,000/- for a purchase cost of Rs. 13,28,860/- within a span of just one and a half year....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essing Officer had issued summons/notices to the purchasers, copies of which have been placed in the Paper Book at pages 371 to 375. The assertions of the appellant are that such persons appeared before the Assessing Officer and confirmed that they were carrying out agricultural operations on such lands. In this context, we find there is no discussion in the assessment order. However, it would not be out of place to mention here that there is no credible material brought on record by the Assessing Officer to negate assessee's plea that the land in question continued to be in the nature of agricultural land even after it sale. 14. In view of the aforesaid discussion, it is quite clear that the land in question has been disclosed by the assessee as 'Investment' and not as stock-in-trade. It is also clear that no steps were undertaken by the assessee for development of property during the period it held the same. Of-course, in the case of other agricultural lands owned by the assessee the period of holding is quite substantial. The circumstances explained by the assessee for having sold the agricultural land within a span of 17 months have also not been found to be false. Consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at Para 16 to 20 of the assessment order. 9. Before the Ld. CIT(Appeals), the assessee has made detailed written submissions which are placed on record. Thereafter, the assessee filed additional evidences vide letter dated 15.03.2012 containing Memorandum of understanding between the assessee and M/s. Kohinoor Shelters Pvt. Ltd. which was subsequently cancelled along with confirmation of accounts from M/s. Kohinoor Shelters Pvt. Ltd. The assessee also filed affidavit from Shri L.R. Agarwal, stating that the same was presented before the Addl. CIT, Range-9, Pune on 29.12.2010 and the same was not accepted by him as the assessment order was already passed. The Ld. CIT(Appeals) while upholding the addition made by the Assessing Officer on this issue has mostly deliberated upon the timing within which these additional evidences were filed. The Ld. CIT(Appeals) has not adjudicated upon the admissibility or genuineness of these additional evidences. Rule 46A of the Income Tax Rules, 1962 does not specify any time limit for producing additional evidences. The view of the Ld. CIT(Appeals) is that since the affidavit of Mr. L.R Agarwal dated 14.03.2012 was filed at delayed time and therefo....