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2021 (8) TMI 816 - AT - Income TaxGain on sale of land - Addition u/s 28(iv) - excess area of land received in partition - co-ownership in land - land was retained for 34 months and later, both the co-owners have entered into partition deed in Financial Year 2013-14 - assessee got 8105sq.yds and M/s Sai Infra got 2877 sq.yards towards their share - as in partition, the assessee got excess land of 2613 sq.yds than the other coowner AO viewed the excess land of 2613 sq.yds as the benefit received and chargeable to tax u/s 28(iv) - HELD THAT:- Land in question was purchased as capital asset and remained as capital asset till the partition. No business activity was carried on by the co-owners and the assessee has received the land on partition. The share of land received on partition cannot be treated as income arising from the business. As discussed earlier the asset was shown in the balance sheet as capital asset but not stock in trade. Thus the contention of the assessee that the excess land received in partition was not taxable u/s 28(iv) is also supported by the decisions referred supra.6.4. Subsequent to taking the land on partition, the assessee has sold the property after the development and declared the average sale value of ₹ 24488/- per sq.yard which is more than the value adopted by the AO in the assessment. The reason for postponement of taxation was explained by the assessee as disadvantageous location for marketing. The Ld.CIT(A) followed the decision of Hon’ble Supreme Court in the case of CIT Vs. Excel Industries . [2013 (10) TMI 324 - SUPREME COURT] and viewed that there was no loss of revenue. Therefore, we agree with the finding of the Ld.CIT(A) that the excess area of land received was not taxable u/s 28(iv) of the Act and there is no loss of revenue. Hence, we do not find any reason to interfere with the order of the Ld.CIT(A) and the same is upheld. Appeal of the revenue is dismissed.
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