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2018 (2) TMI 745 - AT - Income TaxTaxability of gains on sale of lands claimed to be agricultural lands by assessee - nature of land - Held that:- Here the lands in question are away from Municipal limits and cannot be treated as urban lands under W.T. Act or under IT Act. Be that as it may, what is noticed from the ‘agreement of sale-cum-GPA’ and ‘sale deed’ entered by assessee is that assessee never brought the said lands in his name. The agreement of sale-cum-GPA is from the original owners and assessee sold the same as GPA holder only. Thus, the ownership of land has to be examined. The mutation of land in assessee name was not placed on record. It is admitted that assessee has not earned any income from the land. Whether any agricultural/ development activity was undertaken on the land was also not explained or examined. As seen from the record, there is a rectification deed dt. 30-04-2008, the contents of which are not available. The lands were not mutated in assessee name, what assessee has sold as GPA holder was only assessee’s right to property. Then, it can also become an ‘adventure in nature of trade’, if the intention is only for subsequent sale on profit. As these aspects are not examined, it is of the opinion that the AO and CIT(A) have erred in treating the same as sale of urban land - set aside the orders of AO and CIT(A) and restore the issue to the file of AO to examine afresh and to determine the nature of transaction - Appeal of assessee allowed for statistical purposes.
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