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TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 1127
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....ral joint agricultural land as sale consideration without transfer of possession of land in the year under consideration." 2. Facts, in brief, are that case was reopened for assessment on the basis that the assessee had deposited cash amounting to Rs. 37,70,000/- in his bank account maintained with Syndicate Bank during F.Y. 2013-14 relevant to A.Y. 2014-15. Before the assessing authority it was stated that the assessee had received sale proceedings of land amounting to Rs. 37,70,000/-. The AO added back the amount and thus assessed income at Rs. 39,66,360/-. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals), who dismissed the appeal. Aggrieved the assessee is in appeal before this Tribunal. 3. The only ....
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....f Income Tax (Appeals) was appraised of the definition of the term "transfer" of section 2(47) of the Income Tax Act in detail along with detailed provisions of Section 53A of the Transfer of Property Act which governs Sale/Transfer of Immovable Property. Various case laws were also cited. However, LD. The Commissioner of Income Tax (Appeals) did not record anything for not considering applicability of such cases and the provisions of the Two Act, as stated above, which categorically explains that the subject transaction was merely a transaction of advance and not a transaction of sale/transfer of immovable property, in his order and thus misdirected himself in confirming the addition made and is therefore is inconsistent to the legal posit....
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....t the reality or otherwise of transaction. However, Ld. Assessing Office totally failed to apply test of human probabilities and check the surrounding circumstances in considering ENTIRE ADVANCE RECEIVED IN THE CURRENT YEAR against "AGREEMENT TO SELL" as Taxable Capital Gain. Ld. Assessing Office as well as Ld. The Commissioner of Income Tax (Appeals) failed to appreciate that it is beyond human probabilities in general for anyone to transfer possession of land against receipt of only about 42% value of the price fixed for the land to the buyer. No man of even ordinary prudence will transfer possession without fully getting the full consideration unless it is done under an undue threat or coercion, which if so, would render such agreeme....
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....red, and are not in dispute. Whereas, in the present case, Ld. Assessing Office proceeded to make additions without gathering any adverse material on records. That the Ld. Assessing Officer simply on the basis of suspicions, surmises and conjectures can not change the nature of transactions to suit the Income Tax Department to unnecessarily create demand of tax and is against the spirit of the law as also held in Madnani Construction.. Vs. CIT [2008] 296 ITR 45 Guwahati. Mere suspicion or thought of the Ld. Assessing Officer cannot be given more credence than the documentary evidence filed by the assessee considering the provision of section 91 of the Evidence Act. As also held by ITAT Mumbai in Shri Rajeev G. Kalathil Vs. DCIT (ITAT Mumb....
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....e submitted that since no possession of land was given, therefore, there was no transfer. 6.1. Before adverting to the rival submissions, for the sake of clarity, it would be appropriate to reproduce the relevant provision of law i.e. section 2(47) of the Act, as under: "(47) transfer, in relation to a capital asset, includes,- (i) the sale, exchange or relinquishment of the asset; or (ii) the extinguishment of any rights therein"; or (iii) the compulsory acquisition thereof under any law; or (iv) in a case where the asset is converted by the owner thereof into or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment;] [or] (iva) the maturity or redemption of a zero coupon bond; or] ....
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....at the Income Tax Authorities can apply the test of human probabilities to see whether the transactions could be considered as genuine or not. Reliance in this regard is placed on the judgment of Hon'ble Supreme Court in the case of Sumati Dayal V / s CIT 214-ITR-101. Their lordships of the Supreme Court in the case of CIT V / s Durga Parshad More, 82-ITR-540, have held that taxing authorities were entitled to look to surrounding circumstances to find out the reality or otherwise of transaction. 7. The above case law is clearly applicable to the instant case as the assessee failed to explain the computation of Capital Gain and any exemption/deduction from sale proceed of land of Rs. 3770000/- Therefore, receipt of Rs. 3770000/- in han....