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2016 (11) TMI 1063 - ITAT MUMBAICapital gain - nature of land - Held that:- CIT(A) cannot take such an inconsistent stand to reject one ground and to allow another ground. This approach cannot be upheld. He has to give a specific and categorical finding as to whether the land which was purchased was an agricultural land and also continued to be an agricultural land afterwards and the nature of the land has not been changed at all. Nothing further is borne out from the record or has been brought on record as to what happened with the “development agreement” which was entered by the assessee with the developer, M/s Sai Venkata & Associates, vide development agreement dated 15.05.2007 for which the assessee has received huge amount of ₹ 2.25 crores as advance for parting away the development rights and whether the development agreement was terminated and money has been refunded to the assessee or not has not been made clear. If the assessee had incurred expenditure to develop the land which ultimately is to be developed by himself or to be handed over to the developer for the development of any real estate project, then definitely it is indicative of the intention that the assessee had some kind of an intent to enter into the business adventure. However, the impugned order is completely silent on this issue. Even if we agree that, it is an agricultural land in the light of various evidences filed, then same needs to be examined properly by the Assessing Officer or by the Ld.CIT(A) because, these evidences were not filed before the Assessing Officer and CIT(A) has refused to admit the same. Therefore, in the interest of justice, we feel this entire matter needs to be restored back to the file of the Assessing Officer to consider these evidences of land revenue records as well as Talathi Certificate to examine that at the time of sale, the land was actually an agricultural land.
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