TaxTMI 
TaxTMI 
2022 (5) TMI 43
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....spective and in utter derogation of Principles of Natural Justice.. 2. Without prejudice to the forgoing ground and on the facts and in the circumstances of the case the learned CIT (A)-4, was not justified in confirming the order of the learned A.O., who did not apply his mind and simply coppied the order of the learned A.O. at Mumbai in case of the other co-owner of the appellant, ad verbatim and this honourable court be pleased to delete the said addition of Rs.57,88,2407-, as the same has been blindly confirmed by the learned CIT(A)-4 by passing a Non-Speaking Order. 3. Without prejudice to the forgoing grounds and on the facts and the circumstances of the case, the learned CIT(A) was not justified in law in confirming the addition of Rs.57,88,2407-, without considering the actual marketability or profitability of lands in an area called as MIHAN, which is still a doubtful location for any Industry to commence its business and this honourable court be pleased to annual the assessment framed u/s148. 4. Without prejudice to the forgoing grounds and on the facts of the circumstances of the case, the learned CIT(A)-4 was not justified in law in not Distin....
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....g Officer, filed appeal before the first appellate authority. 5. The learned CIT(A) confirmed the order of the Assessing Officer by observing as under:- "3.0 I have gone through the order of the assessing officer, the grounds of peal and the submissions given by the appellant. From the details, it is see that property was jointly owned by the appellant alongwith his father, Shri Ratansi Mulji Patel. Both of them were having 50% share in the property. It is seen that the assessments were also completed in case of appellants father and similar additions were made. The appellants father filed an appeal before the CIT(A)-33 Mumbai vide Appeal No.CIT(A)-33/IT/248/10-11 order dtd. 27/05/2011. The CIT(A)-33 Mumbai, deleted the addition made by the AO on the ground that the land was recorded in revenue records as agricultural land and it remained so even in the immediate next year. The CIT(A) held that the said land was covered u/s 2(14)(iii) and accordingly the profit from the said land were not taxable. 3.1 Against this order of the CIT(A), the Department had filed an appeal before the ITAT Mumbai 'D' Bench Mumbai. The ITAT Mumbai D Bench Mumbai vide its orde....
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....n treating the said sale of land at Rs. 57,88,240 to be income which arose from "An Adventure In The Nature of Trade" 8. We have carefully considered the rival contentions, perused the orders of the authorities below and the material placed on record. We find that the assessee herein was a co-owner of an agricultural land situated at approx. eight kilometers on Wardha Road, Nagpur and as per the revenue records the said land is still agricultural land. The said land was sold by the assessee at Rs. 57,88,246. The return of income was filed by the assessee, however, no enquiry was made by the authorities below. The other co-owner was assessee's father Shri Ratanshi Malji Patel who was residing at Ghatkopar, Mumbai. We observe that if the Revenue have doubt over the sale of the said piece of land by the assessee, the Assessing Officer was at Nagpur and the property of the assessee was situated at Nagpur and the Assessing Officer ought to have visited the site and found the fact. In this regard, both the authorities below have failed to make any enquiry on the sale of land. Since the said plot is still vacant, it is obvious that the assessee had not derived any benefit out of the sa....
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....tely after purchase, the assesses decided to sell it which demonstrates the Intention of the assessee not to hold the land for cultivation or agriculture operation but to resale the same at the earliest possible occasion. Undoubtedly, the land is situated at the main road near the city of Nagpur and In the vicinity of SEZ which means, the entire surrounding area Is commercially developed. Further, the land was sold within a short period of 11 month to the builder for non-agricultural use and purpose. All these facts clearly reflects the commercial and profit element in the purchase and sole transactions of land in question. 5.4 The honourable Supreme Court in case of Gemini Pictures Circuit Private ltd. (supra} has observed and held in paragraph 5 and 6 as under: "5 A recent decision of this court in Sarifabibi Mohmed Sbrahim v. CIT, [1993] 204 ITR 63], rendered by a Bench comprising one of us (P. P. Jeevan Reddy J) is relied upon by learned counsel for the Revenue. The Bench observed : "Whether the land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but....