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2018 (3) TMI 141 - AT - Income TaxProfit earned on the sale of impugned property - capital gain or busniss property - Held that:- In assessment year 2008-09 the land devolved on the assessee from his father has already been accepted as a ‘capital asset’. The entire conspectus of facts on record also bring out that there is nothing to suggest that assessee has undertaken any business activity vis-à-vis the impugned plot of land, so as to construe the profit on its sale as ‘business income’. Therefore, in our considered view, having regard to the facts and circumstances of the case there is no justification to treat the plot of land in question as ‘stock-in-trade’ and that the assessee was justified in treating the gain on sale of the plot to be assessable under the head ‘capital gain’. Thus, on this aspect assessee succeeds. Denying the deduction being expenses claimed to have been incurred as cost of improvement of the property sold - Held that:- In this case, cost of improvement is claimed by the assessee on account of expenditure incurred on leveling of land and construction of boundary wall. Undoubtedly, for a claim to be admissible, the same is required to be verified and for that matter the onus is on the assessee to produce necessary evidence to justify the incurrence of the impugned expenditure, especially considering the fact that in the instant year complete payment for the expenditure has not been made. The Remand Report of the Assessing Officer, which has been reproduced by the CIT(A) also brings out that the attempt to issue summons to the party did not fructify as Mr. Nelson A. D’cruz was not available at the given address. Considering the entirety of facts and circumstances of the case, in our view, it would be in the fitness of thing that this aspect is required to be examined by the Assessing Officer afresh and for that matter the onus shall be on the assessee to justify the incurrence of the impugned expenditure on levelling and construction of boundary wall on the land in question.
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