TaxTMI 
TaxTMI 
2024 (6) TMI 71
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....n law, the Ld. CIT(A) has erred by allowing the assessee the claim of indexation both on cost of acquisition and improvement of land sold at Pataudi vide Deed No.72, against the transaction which was duly established and treated by the AO as 'adventure in the nature of trade'/business transaction. 3. Whether on the facts in the circumstances of the case and in law, the Ld. CIT(A) has erred by allowing full cost of improvement of land against the sale transaction for portion of the land which was allowed by the AO proportionately. 4. Whether on the facts in the circumstances of the case and in law, the Ld. CIT(A) has erred by allowing full cost of improvement of land alongwith indexation in the case of land sold at Pataudi vide deed No.987 despite the fact that the assessee has failed to substantiate the claim of cost of improvement during the assessment proceedings. The AD has categorically mentioned that the cheques regarding cost of improvement were issued by the assessee in October 2007 whereas the impugned property was purchased on 26.03.2008 and the said fact was not duly appreciated by the Ld. CIT(A). 5. Whether on the facts in the circumsta....
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....2,71,320/- in the return of income filed on 30.11.2014 and the case was selected for limited scrutiny for examination of large deduction claimed u/s 54 of the Income Tax Act, 1961, large value sale consideration of property and cash deposits. 5. During the year, the assessee declared Long Term Capital Gains of Rs. 66,23,908/- and Short Term Capital Gain of Rs. 2,28,405/- and claimed exemption u/s 54F of Rs. 1,84,23,729/-. The details of the capital gains are as under: Long Term Capital Gains 1. Deed No. 72 - Rs. 5,93,000/- 2. Deed No. 821 - (loss) Rs. 2,59,000/- 3. Deed No. 987 - Rs. 47,49,200/- 4. Taj Land - Rs. 1,84,23,729/- & claimed exemption u/s 54F 5. Other Land - Rs. 15,40,600/- Total LTCG Rs. 66,23,000/- (excluding Section 54F) Short Term Capital Gains 1. Patudi Nabab - 1 - Rs. 5,58,475/- 2. Patudi Nabab - 2 - Rs. 4,24,000/- Total - Rs. 9,82,000/- 6. The Assessing Officer examined each transaction and redetermined the capital gains. 1. Deed No. 72 - Rs. 5,93,000/- 7. The details submitted by the assessee before t....
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.... ld. CIT(A) relied on the judgment in the case of G. Venkataswami Naidu & Co. Vs. CIT 35 ITR 594 (SC) wherein it was held that, "If a person invests money in land intending to hold it, enjoy its income for some time, and then sells it at a profit, it would be a clear case of capital accretion and not profit derived from an adventure in the nature of trade. Cases of realization of investments consisting of purchase and resale, though profitable, are clearly outside the domain of adventures in the nature of trade. In deciding the character of such transactions several factors are relevant, such as, e.g., whether the purchaser was a trader, and the purchase of the commodity and its resale were allied to his usual trade or business or incidental to it, the nature and quantity of the commodity purchased and resold; any act subsequent to the purchase to improve the quality of the commodity purchased and thereby make it more readily resaleable; any act prior to the purchase showing a design or purpose; the incidents associated with the purchase and resale: the similarity of the transaction to operations usually associated with trade or business; the repetition of the transaction;....
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....nature of trade. Even, mere carving out the plots and selling them to different persons could not be assumed to be an adventure in the nature of trade, unless some more activities in the nature of business were carried out. 17. It is a matter of record that the assessee has held the entire piece of land for 5 long years and that fact in itself shows the Intention of the assessee to make investment in the said plot for capital appreciation. That the improvement made in the plot of land which was barren and uneven by resorting to land tilling, fencing etc, was only with a view to make the land saleable and further plotting of the said land was also part of the same exercise. Simply because the piece of land in this transaction has been bifurcated into 5 different parts to make it saleable after a long period of 5 years from the date of investment, per se cannot grant the character of the said pieces of land as "stock in trade" so as to give it a colour of business activity or adventure in the nature of trade. Applying the principles emerging from the above cases to the facts and circumstances instant case it is held that there is nothing to show that the first step of purchase of ....
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.... decision in accordance with the provisions of the Act. The appeal of the assessee on this ground and the CO of the assessee is allowed for statistical purpose. 3. Deed No. 986 - Rs. 39,08,000 23. As per the AO, * The assessee purchased land on 28.09.2010 for a total cost of Rs. 34,14,500. * Out of the total land acquired, the assessee sold 50% of the land. * The assessee sold the property on Sept/13 & Aug/13 * The assessee claimed cost of improvement of Rs. 20,30,250. * The assessee produced a bill dated 10.01.2011 on the letter head of once Sh. Darshan Pal, Thekedar. * The assessee claimed the entire amount has been paid in cash. 24. The Assessing Officer held that no evidence in respect of payment has been furnished, no identity proof of Sh. Darshan Pal was submitted, no address of Sh. Darshan Pal and contact number has been submitted in the reply given to the AO. 25. The ld. CIT(A) deleted the addition holding as under: "7.2 With respect to the above Ground of Appeal which is in reference to disallowance of half of the cost of acquisition and further the entire cost of improvement, the submission of the ....
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....rred to clear the land and level it was clear case of attempt to improve the assets and hence and allowable expense. Similarly demarcating the plot by constructing a boundary to avoid any further encroachment was also to secure and improve the plot of land. It is incorrect to say that any information or evidence was not filed. The appellant did file copy of contract, copies of bills sand, earth bricks etc. The bill of the contractor was also filed before the A.O. The reality is that that most of these expenses were incurred on that part of land which got transacted. That is why these portions got sale worthy. Hence the need and factum of having incurred expenses stand duly supported by the circumstances and the assessee had discharged the initial onus. That as regards the non service of notice u/s 133(6) it has been submitted that these are nomadic labour contractors who keep moving in the area and normally do not have permanent address. The events in question relate to the period 2010, which is quite back in time. Locating them in 2016-17 would be a stupendous task. Therefore in the circumstances nonservice cannot be used against the appellant. Regarding the payment in ca....
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.... improvement of Rs. 20,30,250/- is concerned that while the assessee had submitted the details of work of land filling, cleaning, demolition of old structure and plinth wall and brick walls through the Sh. Darshan Lal, the Contractor whose final bill is dated 10.01.2011, it is seen that the same has been summarily rejected by the AO without making any necessary inquiry from Darshan Pal whose office address has been provided at Mumtajpur, Teshsil Pataudi, District Gurgoan. That not much can be made of the non- service of the notice u/s 133(6) issue to Shri Darshan Pal, more so in face of the fact that a hand written reply in his name has been received through post in the office of the AO on 26.12.2016. The Appellant had filed copy of the contract copy of signed bill and earth brick bills evidencing construction of boundary to avoid any encroachment on the sold piece of land. In support of fencing/construction of brick wall the assessee has also provided copy of letter written to secretary, Municipality, Pataudi dated 10.10.2011. Thus taking into totality all these contemporaneous evidences as also the fact that it is the AO who had all the powers to enforce the attendance of Darshan....
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....sed for Rs. 16,12,500/- + Rs. 97,000/- Stamp duty on 15.11.2007. 4 Kanal 6 Marla at Khata No. 61/64 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 10,75,000/- + Rs. 64,500/- Stamp duty on 15.11.2007. 3 Kanal 18 Marla at Khata No. 59/61 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 9,62,500/- + Rs. 58,000/- Stamp duty on 15.11.2007. 7 Marla 7 Sarsai at Khata No. 62/65 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 1,00,000/- + Rs. 6,000/- Stamp duty on 15.11.2007. 4 Kanal 5 Marla at Khata No. 59/61 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 10,70,000/- + Rs. 64,200/- Stamp duty on 16.11.2007. 3 Marla at Khata No. 62/65 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 37,500/- + Rs. 2,250/- Stamp duty on 19.11.2007. 2 Marla at Khata No. 62/65 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 90,000/- + Rs. 5,400/- Stamp duty on 16.11.2007. 6 Kanal 8 Marla at Khata No. 59/61 Farukhnagar Teh. Pataudi, Dist. Gurugram purchased for Rs. 10,70,000/- + Rs. 64,200/- Stamp duty on 19.11.2007. ....
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....see vide reply dated 02.12.2016 submitted that the assessee had obtained a domestic connection of 1 KW after the purchase of the property which proves that the said building was a residential house. It was also asserted that the premise was purchased by assessee with a view to reside with his parents by using the entire land and the said building as residential house. The assessee also relied upon the registered documents where it is mentioned that the said property comprises of an area of 500 sq. feet constructed building. As far as the approval of construction for residential house, it was mentioned that there was no need on the part of the assessee to obtain any approval of construction since he had bought an already constructed house. The assessee has also submitted a certificate from Town and Country Planning dated 01.12.2016 which says that the said land is a residential land. As per the letter plot in Khasra No. 257 - 258 sector 104, Gurgaon is shown as a part of residential land in the Master Plan of Gurugram. Further the assessee has also relied upon the Khasra issued by the Patwari where it is mentioned that a "Makan" is also situated in the khasra of agricultural land pu....
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....mises". 10.11 Further, in the case of Amit Gupta vs. DCIT Citation 2006 6 SOT 403 it was held that "The requirement of law is that the property should be a residential house. The expression residential house has not been defined in the Act. The popular meaning of the word is a place or building used for habitation of people. It is used in contradistinction to a place which is used for the purpose of business, office, shop, etc. It is capable of being used for the purpose of residence than the requirement of section is satisfied." 10.12 The assessee was expected to establish the said building to be called as residential house, by furnishing documents of following nature: * The plan of the house and the approval for construction from the relevant authorities. * Title deed. * Tenancy agreement, if any. * Photograph, if any. habitability of the building for the purpose of residence which may include kitchen, bathroom etc. 10.13 The assessee has however, not been able to furnish conclusive evidences in support of his claim. It was also observed on perusal of the registry deed that in the column of the type of land it was mentioned as "Araji J....
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....y the occupiers for commercial or agricultural purpose although forming part of the land adjacent to the buildings, does not qualify to be treated as land appurtenant to the building. Further, if any material pointing to the attempted user of the land for purposes other than the effective and proper enjoyment of the house would also 'afford a safe guide to determine the extent of surplus land not qualifying to be treated as land appurtenant to the building. 10.17 In the present case, there is not an iota of doubt to hold that the constructed area and the land are not one unit or inseparable unit. Out of the total area of the land of about 45,000 sq. ft. only 500 sq. ft. is the area of constructed portion with no evidence of use as a residential house. The assessee has not been able to produce any evidence in his support on this point. Therefore, the land of about 45,000 sq. ft cannot be stated to be a land appurtenant to the house as claimed by the assessee. 10.18 My views find support from the case law cited in 351 ITR 123 (2013) HIGH COURT OF KERALA Smt. Asha George vs. ITO where the honorable court on the similar issue concluded as under: "12. Section 54F i....
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.... of Income-Tax, West vs. Durga Prasad More 82 ITR 540 observed the often quoted following relevant observation: "It is true that an apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real. In a. case of the present kind a party who relies on a recital in a deed has to establish the truth of those recitals otherwise it will be very easy to make self-serving statements in documents either executed or taken by a party and rely on those recitals. If all that an asses see who wants to evade tax is to have some recitals made in a document either executed by him or executed in his favour then the door will be left wide open to evade tax. A little probing was sufficient in the present case to show that the apparent was not the real. The taxing authorities were not required to put on blinkers while looking at the documents produced before them. They were entitled to look into the surrounding circumstances to find out the reality of the recitals made in those documents." 10.23 In view of the facts and circumstances of the case and on the basis of inquiry conducted the only irresistible conclusion which can be drawn is....
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....entioned that the said property comprises of an area of 500 sq. ft constructed building. The assessee also submitted a certificate from Town and Country Planning dated 01.12.2016 which says that the said land is a residential land in the Master Plan of Gurugram. The assessee also relied on the Khasra issued by the Patwari where it is mentioned that a "Makaan" is situated in Khasra of agricultural land. In para 10.8 of the assessment order the AO notes that it is not in dispute whether z constructed structure or Makaan was part of the property purchased by the assessee. The issue under examination is whether the Makaan was a residential house or any other type of Makaan also if at all this covered area was a residential house is the assessee eligible to clain deduction under section 54F on the entire property being mainly a land of about 1 acre size. The AO requested the assessee to furnish the evidence to prove that how a small area of 500 sq. ft. which was purchased jointly in name of 3 co- owner could be eligible for deduction u/ 54F on a land of more than 90 times size for which the total investment of Rs. 5,41,36,367/- was made. The AO has referred to the Supr....
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....is used for office or warehouse or shop. So contra-distinction to a residential house is a building used for commercial or business purposes. In that light ITAT, Jaipur held that even a farm house is also a residential house. Trying to put it differently, it is the purpose for which the house is used and not the size or location which is material to characterize it for the purpose of sec 54F. As regards the visit of the Income Tax Inspector on which the A.O. has relied so much, the appellant submitted that the same does not prove anything adverse. Notwithstanding that, the existence of a house in question has not been disputed even in his report, to the extent referred to in the assessment order. The attempt of the A.O in computing partial allowable deduction, as an alternative, goes to prove his acceptance about existence of a residential house, on the lines mandated by sec 54F. It is further submitted that existence of a shed along with the residential unit involving casting of pavers cannot be fatal, as these are temporary structures, erected post purchase of the house and the land appurtenant to it. Its existence does not change the basic character of the residential h....
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....sess the income as per assessing officer's satisfaction and appreciation. The appellant further stated that it was submitting the following documents in support of his claim, which documents were never called for by the AO and which are as follows: The plan of the house and the approval for construction from the relevant authorities. It is submitted that house was already constructed at the time of purchase and duly mentioned in title deed submitted by assessee during assessment proceedings. Further, Assessee on his part has not taken any approval for construction from any authorities. Title Deed: Title deed of the house was duly submitted at the time of assessment proceedings. However same is encloses again as Annexure-H. Tenancy agreement: It is never a condition for claiming 54F that house should be on rent, however assessee let out the property for residential purpose in next year that is FY 2014-15(A copy of such agreement has been enclosed as Annexure-I). Further, it is during the assessment proceedings only that the assessee came to know that tenant has started certain warehouse activities on let out property without permissio....
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....al Board of Direct Taxes on the question as to whether the exemption u/s 54F would also include the cost of purchase of a plot, provided that the acquisition of plot and the construction thereon are completed within the period specified in this section. For ready reference para no. 2 of the said Circular No. 667 is reproduced herein below:- "The Board has examined the issue whether, in cases where the residential house is constructed with the specified period, the cost of such residential house can be taken to include the cost of the plot also. The Board are of the view that the cost of the land is an integral part of the cost of the residential house, whether purchased or built. Accordingly, if the amount of capital gain for the purposes of section 54, and the net consideration for the purposes of section 54F, is appropriated towards purchase of a plot and also towards construction of a residential house thereon, the aggregate cost should be considered for determining the quantum of deduction under section 54/54F, provided that the acquisition of plot and also the construction thereon, are completed within the period specified in these sections." The iss....
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....ed. However, the Id. CIT (A) considered the fact that there is no bar to purchase agricultural land on which house was to be constructed. The fact is that subject to provisions of sub-section (4) of section 54F, where, in the case of an assessee being an individual or a Hindu Undivided Family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has within a period of one year before or (two years) after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house, found that assessee has purchased a plot of land and has constructed a house on the same, then taking into consideration the case of Narendra Mohan Uniyal, 34 SOT 152 (Del.) and taking into consideration the decision of Hon'ble Rajasthan High Court in case of Vishnu Trading & Investment Co. (128 TAXMAN 777) and also the decision in case of Shyam Sunder Makhija (38 ITD 125 - Jaipur) found that assessee is eligible for exemption under section 54F................................Since all the details are placed on ....
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.... the impugned property was a residential property, and keeping in view the above said Circular no. 667 of the CBDT as well as the principles laid down in the various decisions referred above, I have no doubt in my mind that exemption u/s 54F is applicable to the Appellant on the entire amount of Rs. 1,84,23,729/- as claimed by him in the return of income and that it cannot be restricted only to the value of the constructed portion of the house which proportionately belongs to the Appellant. So far as the issue of some commercial activity / storage/ warehouse being run from the said premises by the tenant to whom the residential house was given on lease by the assessee for its use as residential premises is concerned, it is held that the said user by the tenant of the premises which is in violation to the lease agreement does not have any bearing on the fact that the exemption is granted under section 54F for purchase of residential house including the land thereto and any subsequent violation by the lessee of the said residential premise at a later date cannot be determinative of the disallowance of the claim of exemption u/s 54F by the assessee. In a result the Ground of Appeal no....
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....has not been allowed to examine the same. Ground No. 8 The assessee relies on the findings of the Id. CIT(A) in para 8.2, 8.3 and 8.4 of the appellate order. In this connection, a reference may kindly be made to pg. 24 of the assessment order wherein the Id. AO has given a finding that total area of the land was 45000 sq. ft. and the covered area was 500 sq. ft as per the registry. It is not understood as to how the Id. Senior DR is alleging that the evidences were not produced before the Id. AO. Further, there is a mention of domestic electricity connection of 1KW at pg. 21 of the assessment order. Further on at the same pg. of the assessment order, a certificate from Town and Country Planning dated 01.12.2016 has been noticed by the AO mentioning that the said land was residential. The Id. AO in para 10.8 has stated that it is not a matter of dispute that whether the constructed structure or 'Makan' was a part of the property purchased by the assessee and according to him the issue is whether it was a residential house and in that case he has agreed that the assessee is eligible for claim u/s 54 on the entire property. Out here it may be mentioned that on a residential land th....
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.... was no need to obtain any approval of construction as there is already a constructed house. * The assessee submitted certificate from town and country planning dated 01.12.2016 showing it as residential land in the master plan. * The assessee has also relied on the Khasra issued by Patwari where it has mentioned that a "Makan" is also situated. 38. The ld. CIT(A) held that a residential house has not been defined in Section 54F of the Income Tax Act, 1961 and hence, the size or the location is not material to characterize the purpose of Section 54F. The ld. CIT(A) also held that the agricultural land as mentioned in the purchase deed means "land cultivable". The ld. CIT(A) held that "arajai jarai" is bland statement in the specific contest and there was no proof that agricultural operations are taking place in the appurtenant land. The decision of the ld. CIT(A) treating the "agricultural land" as "land cultivable" and trying to bring the newly purchased asset out of the purview of the "agricultural land" is without any basis when the stamp duty authorities and the revenue authorities have duly considered it as agricultural land. 39. The Departmental Repres....
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.... on the date of transfer of the original asset, is chargeable under the head "Income from house property" .] Explanation.-For the purposes of this section,- [***] [***] "net consideration", in relation to the transfer of a capital asset, means the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer. (2) Where the assessee purchases, within the period of [two years] after the date of the transfer of the original asset, or constructs, within the period of three years after such date, any residential house, the income from which is chargeable under the head "Income from house property", other than the new asset, the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of such new asset as provided in clause (a), or, as the case may be, clause (b), of sub-section (1), shall be deemed to be income chargeable under the head "Capital gains" relating to long-term capital assets of the previous year in which such residential house is purchase....
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....new asset, shall be charged under section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires ; and (ii) the assessee shall be entitled to withdraw the unutilised amount in accordance with the scheme aforesaid." 42. Having gone through the entire facts, we find that the domestic electric connection cannot give any credence or criteria to prove that the assessee has purchased a residential house as per the provisions of Section 54F. The Dakshin Haryana Bijli Vitran Nigam Ltd. has different types of tariff categories namely domestic supply, non-domestic supply, industrial & steel furnace power supply, public water work supply, bulk supply etc. The domestic supply is applicable to consumers for lights, fans, domestic pumping sets, lifts, fire hydrants and house hold appliances in the premises such as single private house/flat, group housing, hostel, working women hostels, anganwadi training centre, places of worships and village chopal. It also notifies that private dwelling in which space is occasionally used for the conduct of business by a person residing therein shall also be served u....
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....624/Del/2009 and DCIT Vs. Kalyan Raman Natraja (88 Taxman 93). In this case, the issue was whether the house should be on the entire plot of land or not. The Coordinate Bench of ITAT held that the exemption need not be denied on the grounds that the entire plot has not been utilized for the construction of house. Hence, the facts of the case differ from the facts of the case before us. The ld. CIT(A) further relied on the case of ACIT Vs. O.P. Goyal. In that case, the Coordinate Bench of Jiapur held that since the residential house was constructed as the fact has been mentioned, the valuer in his valuation report, the Tribunal allowed the exemption u/s 54F which is not the case before us. We have also referred to Circular No. 667 of CBDT which clarifies that Sections 54 and 54F provide for a deduction in cases where an assessee has, within a period of one year before or two years after the date on which the transfer of a capital asset takes place, purchased, or has within a period of three years after that date constructed, a residential house. The quantum of deduction is itself dependent upon the cost of such new asset. It has been represented to the Board that the cost of constru....
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....d he has given reference of Khasra Girdhawari further proves it to be an agricultural land. The sub-Registrar has also clarified that the stamp duty of Rs. 33,99,500/- was charged for registration for agricultural land and Rs. 20,500 was charged for against the covered area. There was no mention of a residential house in the documents. Further, the enquiries conducted by the revenue authorities have clearly proved with photographic evidences that the area has been used for concrete brick manufacturing unit run by one Sh. Bharat Bhushan under the name of M/s Surabh Ferrocon. We have also gone through the lease deed submitted along with the paper book which shows that the land has been given on rent of "some of the building and open parking area" when there was no such building existing as per records. Further, at point no. 7, it mentions that the premises should be used only for residential purpose of its staff whereas there was no dwelling unit available at the said premises. Further, the enquiries and the photographs clearly proves that the said land was used for manufacturing of concrete, bricks (page 20 of AO). Hence, no credence can be given to the rent agreement or the subsequ....
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.... tribunal made an estimation and directed that the value of the plot on which the farm house is located and the land appurtenant be fixed as Rs. 2 lakhs. We are unable to accept the contention of the appellant that the value of the entire land must be considered in arriving at the value of the residential building." 48. Section 54F demands reinvestment of the capital gains in new residential property to qualify for exemption. The provision was brought in to encourage individuals to reinvest their gains into new housing thereby fostering home ownership, stable investment growth and to augment the growth of other industries like Iron & Steel, Cement providing employment, engaging labour and ultimately industrial & economic growth of the country. Before parting, we want to clarify that we are of firm opinion that the size of the residential house is not a criteria for claiming of exemption u/s 54F. The very fact that whether there existed any residential house and whether the assessee constructed any house subsequent to purchase of the land has not been proved in this case. At the same time, it has also been proved by the Revenue that there is no such residential dwelling or the re....
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....¤²à¥à¤•à¤¾ से बिनà¥à¤¦à¥ à¤à¤• बिनà¥à¤¦à¥‚ 2 बारे रिपोरà¥à¤Ÿ गई पारी हा ने रिपोरà¥à¤Ÿ की है कि 1 तलब कृषि योगà¥à¤¯ à¤à¥‚मि वरà¥à¤· 2013 खसरा गिरदावरी के रिकारà¥à¤¡ के अनà¥à¤¸à¤¾à¤° खसरा नं० 257 में बंजर कदीम 3 6 fa o fawat बिरवा गैर मà¥à¤®à¤•à¤¿à¤¨ मकान o fazat a बजर कदम दरà¥à¤œ है। उस समय के सरà¥à¤•à¤² रेट अनà¥à¤¸à¤¾à¤° à¤....