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2021 (11) TMI 1149 - HC - Income TaxAddition u/s 56(2) (vii) (b) (ii) - DLC rate applied by the AO - plea that the lands were held as business asset was never taken before AO and that the assessee has also shown land/plots as investments and there are no developmental expenses as such debited/claimed in the year - ITAT confirming deletion of the addition by CIT(A) - HELD THAT:- As is well known Section 56 of the Act pertains to income from other sources. As provided under sub-section (1) of Section 56 income of every kind which is not excluded from the total income under the Act would be chargeable to income tax under the head ‘income from other sources’ if it is not chargeable under any of the heads specified in Section 14, items A to E. Sub-section (2) of Section 56 provides that in particular and without prejudice to the generality of the provisions of sub-section (1), the income specified in several sub-clauses contained in this section shall be chargeable to income tax as income from other sources. Revenue did not argue that the said provisions would be applicable to a stock in trade of an assesse- if it was found that assessee was actually in the business of real estate development and the land in question formed part of the stock in trade of the assessee, Section 56(2) (vii) would have no applicability. CIT (Appeals) as well as the Tribunal have concurrently come to a finding that the assessee had shown the said property as stock in trade in its business of real estate development and that even otherwise there was sufficient independent evidence for such purpose. Merely because the assessee did not raise such a contention before the AO, as per settled law would not preclude the assessee from raising such contention before the Appellate Authority. As noted the assessee followed the proper procedure by filing application for taking additional evidence on record which was allowed by the Commissioner of Appeals and taken into consideration after calling the remand report from the Assessing Officer.No question of law arises. The appeal is dismissed.
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