TMI Blog2014 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... against assessee. - I.T.A. No. 265/Coch/2012 - - - Dated:- 27-12-2013 - Shri N. R. S. Ganesan, JM And B. R. Baskaran, AM,JJ. For the Petitioner : Shri Anil D. Nair, Adv. For the Respondent : Shri K. K. John, Sr. DR ORDER Per B. R. Baskaran, Accountant Member: The appeal filed by the assessee is directed against the order dated 30- 07-2012 passed by Ld CIT(A)-I, Kochi, and it relates to the assessment year 2008-09. 2. The assessment of income arising on sale of an agricultural property as the business income in the hands of the assessee, having been confirmed by Ld CIT(A), the assessee has filed this appeal before us. 3. The facts relating to the above said issue are stated in brief. The assessee and another person named Shri N.V.George together purchased 944.43 cents of rubber plantation in Amballur village, Thrissur District on 09.5.2007 and 07.07.2007. The said land was later sold to Shri E.P. Antony, Shri A.A. Davis and others. A person named Shri P.T. Pavunny was a middleman or broker in the deal. During the search proceedings at the residence of Shri P.T. Pavunny, a sale agreement relating to the above said transaction of sale was seized. From the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24.05.2013, held as under in the appeal filed by Shri N.V. George:- "2. Shri Anil D Nair, the ld. counsel for the assessee submitted that the assessee is a non resident Indian. The assessee purchased 944.43 cents of rubber plantation at Amballoor Village, Trichur District. The property was registered as rubber plantation by the Rubber Board. According to the ld.counsel the assessee continued to do the agricultural activities by tapping and selling latex till December, 2007. Thereafter the assessee decided to sell the property and entered into as sale agreement on 14-12- 2007. On the date of the agreement the assessee has also handed over the physical possession of the property to the proposed purchaser. 3. The ld.counsel for the assessee further submitted that the assessee claimed exemption u/s. 2(14)(iii) of the Act on the ground that the rubber estate is agricultural land, therefore, it cannot be treated as a capital asset. Apart from that the assessee claimed before the assessing officer that the land was situated beyond 8 kms radius of the municipal limit and it was also not notified. However, the assessing officer found that the transaction was adventure in the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival submissions on either side and also perused the material available on record. The contention of the ld.counsel for the assessee is that the land was sold as per agreement dated 14-12- 2007. According to the ld.counsel for the assessee, the physical possession of the land was handed over to the purchaser on 14-12-2007, therefore, the date of agreement would be the date of sale. Therefore, the profit, if any has to be assessed in the assessment year 2008-09. However, no document is available on record to suggest that the physical possession of the property was handed over to the purchaser on 14-12- 2007 at the time of agreement. In the absence of any material evidence, this Tribunal is of the considered opinion that the contention of the ld.counsel for the assessee cannot be accepted. 6. Now coming to the way in which the transaction was carried out it is clear form the records that no agricultural activity was carried on in the land in question. Shri N.A. Baby clarified that there is no such activity carried on. The property was sold by seven different sale deeds as narrated by the CIT(A) at page 7 of his order. Therefore, the intention of the assessee at the time of purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing officer is not giving any relief on the cost of acquisition, which he has deposed at Rs. 10,250 per cent. The Assessing officer has arrived the cost of acquisition at Rs.18,35,000/- plus cost of stamp duty, registration charges etc. amounting to Rs. 2,20,206/- only based on the sale deed executed on 07.07.2007. Thus, the appellant made a plea that the assessing authority should have adopted uniform basis. I have considered the appellant's plea and found them untenable for the following reasons. The Assessing officer has not assessed the sale considerations based on Shri N.A. Baby's deposition alone. During the search, the sale agreement was discovered. Shri N.A. Baby and the purchasers have also deposed that it indicated the actual consideration. Even otherwise, the contents of these documents are presumed to be true within the scope of section 132(4) rw section 292C of the Act unless otherwise rebutted with cogent materials. However, the search party have neither found nor seized any material evidencing the cost of acquisition canvassed by the appellant. The appellant has not proved before Assessing officer that he has paid such consideration. In view of the above facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As submitted by Ld D.R, we notice that the selling rate was adopted by the AO on the basis of the sale agreement, which was also confirmed by Shri N.A. Baby, the co-owner of the land and also by Shri A.A. Davis, one of the purchasers of the land. Hence, the basis for adoption of sales rate at Rs.25,000/- per cent is the sale agreement only and not the sworn statement, as contended by the Ld A.R. Though the purchase rate was stated as Rs.10,250/- per cent by Shri N.A. Baby in his sworn statement, yet no corroborative material was brought on record by the assessee to substantiate the said statement. There should not be any dispute that the responsibility to prove the purchase consideration lies upon the assessee in the facts and circumstances of the instant case, since the assessee is claiming that the apparent is not real. The assessee has purchased the land in June/July, 2007 and hence the said investment falls in the financial year relevant to the assessment year 2008-09, i.e., the immediately preceding year to the year under consideration. It is not the case of the assessee that the revenue has initiated any proceeding for assessing the difference in purchase consideration, in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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