TMI Blog2012 (9) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... n sale of property held for more than three years as Long term Capital Gains. 3. The Learned Commissioner of Income Tax (Appeals) erred in not allowing the fair market value of the Apartments as on the date of entering into the Joint Venture Agreement to be deducted from the sale consideration. 4. The action of the Learned Commissioner of Income Tax (Appeals) in upholding the unsubstantiated contention of the Assessing officer that the Appellant was in receipt of on money is erroneous inasmuch as he has himself recorded a finding of fact to the contrary. The Appellant prays for leave to add, modify, delete or introduce additional Grounds of Appeal at any time before the Appeal is disposed off. 3. The grounds of appeal raised by the revenue read as follows:- 1. The order of the Learned CIT(A) is opposed to law and facts of the case and is based merely on conjuncture and surmises. 2. The CIT (A) erred in law and on the facts of the case in holding the entire additional turnover of ₹ 83,60,865 can not be considered as profit and allowing further expenditure of ₹ 41,80,432/- under the head Income from Business, on estimation basis without any proof reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of transactions that the assessee indulged in during the previous year. 6. During the previous year, the assessee had entered into following transactions(categorized as A, B and C) :- A. Property bought and sold within the Previous Year under assessment. B. sale of Properties acquired in the preceding years and sold during the year under assessment. C. Sale of Apartments obtained as a consideration for giving land for joint Development. 7. On the basis of the above details, the AO proceeded to recast the trading profit loss account of the assessee. As can be seen from the aforesaid three charts which depict the sales done by the assessee during the previous year, the total sales were Q 1,06,83,750. The trading account filed by the assessee along with the return of income however showed sales to the tune of Q 1,90,44,615, the difference viz., a sum of Q 83,60,865 was presumed by the AO to be on-money received by the assesse in the transaction of sale shown in the books of accounts. It was the stand of the assessee before the AO that the financial statements were prepared by a C.A., and that the assessee does not know the basis on which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es purchased and sold by the assessee during the previous year, which we have given in the earlier part of this order. 13. After excluding the aforesaid sales figure, the AO arrived at a closing stock of Q 64,66,365. The AO recast the trading profit loss account and determined the income as follows:- Thus the gross profit of the assessee was arrived at ₹ 1,49,66,546/-. The assessee had debited certain expenditure in the profit and loss account. The following expenditure debited to the P L account by the assessee was considered and allowed as deduction to arrive at the net profit. Gross Profit ₹ 1,49,66,546 Direct Expenses (other then trading items) ₹ 19,36,040 Administrative Expenses ₹ 18,88,294 Financial charges ₹ 74691 Depreciation Rs, 1,75,375 Net Profit ₹ 1,08,92,146 Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 flats should be allowed as a deduction in computing the business income of the assessee. This plea of the assessee was also rejected by the assessee. 17. Aggrieved by the aforesaid action of the AO, the assessee filed appeal before the CIT(Appeals). Before the CIT(A), the assessee explained as to how the CA refused to handle the case of the assessee and also how the assessee was not in a position to explain the basis on which the CA had filed the trading profit loss account filed along with the return of income. The assessee again reiterated the plea that she had taken before the AO. The assessee however admitted that the business of dealing in timber and granite was discontinued long back and that the only business was the business of purchase and sale of property carried on by the assessee during the previous year. The submissions of the assessee before the CIT(A) were as follows:- 1. As far as transactions set out in Part-A of the Chart set out in the earlier part of this order, the Assessee conceded that the AO has taken the correct stand. 2. In respect of transactions in Part-B of the Chart set out in the earlier part of this order, the Assessee contended that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have brought to tax, the transactions that came to his notice, under the proper heads of income. 5. The Assessee also objected to the addition of ₹ 83,60,865 to the turnover considered by the AO as unreasonable. It was argued that once the accounts submitted by the Assessee are rejected as fabricated and unreliable, it is not open to the AO to rely upon the same statements again according to his convenience. Towards this, the Assessee relied upon the decision of the Andhra Pradesh High Court in the case of Indwell Constructions vs. CIT reported in (1998) 232 ITR 776, which has been referred to in 316 ITR 127 by the Punjab Haryana High Court. 5.4. In the alternative, it was pleaded that even if it is assumed that the Assessee received on money during the course of real estate transactions, then it follows that the Assessee would have also paid similar amounts at the time of purchase. Accordingly, it was submitted that the amount to be brought to be tax, if any should only be a reasonable gross margin and not the entire amount as held by the AO. It was also submitted that it was incumbent upon the Income tax authorities to levy and collect only that tax that can be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to depend on the level of urbanization and growth of the city in that direction and hence not consistent with the period of holding. At the same time, she has carried out some developmental work like land fillings, conversion, betterment, construction of walls etc, which would have their own costs. Considering that these activities were carried out in the semi urban areas, through unorganized labour, it is possible that proper bills and vouchers may not be readily available for the same. The decisions relied upon by the AR also seem to support the view that, where the assessee runs the risk of being over assessed due to mistake or misconception, then it would be open to the authorities to use their powers and bring to tax the correct amount. 5.8. In view of the foregoing discussions and based on the decisions cited and considered, I would therefore hold that the ends of justice can be said to have been met if a Gross Profit margin of 50% of the additional turnover of ₹ 83,60,865 is treated as income in the hands of the Appellant. The appellant herself has shown a Gross Profit margin of 7% to 75% as shown in Para Tables described in Para 2 of this order. The results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chart were acquired without any intention of holding them as stock-in-trade, but with an intention to hold them as investments. It has further been stated that the CA for the reasons best known to him has declared the transactions in respect of the aforesaid properties as business transactions. 23. We have considered the affidavit filed by the assessee and are of the view that the same cannot be sufficient to hold that the properties in Part B of the chart were held by the assessee only as investments. In this regard, we find that in the submissions dated 05.10.10 filed by the assessee before the CIT(A), the assessee has clearly mentioned that the lands were purchased with an intention of holding them till such time there was a prospect of making profits. It has also been mentioned that when there was ready purchaser for the property, they would be purchased and sold within a short span of time. Even in respect of the property that was given for joint development, the assessee has mentioned that they were held with a view to make profits at a time when there were good prospects. In our opinion, the intention at the time of purchase as to, whether the property is investment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the conclusion that when possession is handed over in part performance of an agreement for sale and if the assessee has right to receive the consideration, there would be an effective transfer. 27. Further reference was also made by the ld. counsel for the assessee to the decision of the Hon ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia v. CIT 260 ITR 491 (Bom) for the proposition that when the possession of the property is handed over to the developer, transfer would take place in a joint development agreement. In this regard, the ld. counsel for the assessee also drew our attention to the joint development agreement whereby the developer was given a licence to enter upon the property for the purpose of development. Reference was also made to clause 19.1 and 20 of the joint development agreement whereby the developer had right to sell 70% of the undivided share of land. It was submitted by him that transfer if at all, had taken place on 20.10.03 i.e., the date of joint development agreement falling within the assessment year 2004-05. 28. It was further submitted by the ld. counsel for the assessee that while computing income on sale of 5 flats w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the joint development agreement. This conclusion is on the basis that a sale by the assessee to the developer had happened during the previous year relevant to A.Y. 2004-05. It appears that the revenue has not taken any steps to tax the income for the A.Y. 2004-05. We are not, however, concerned at this stage on the above aspect. We are now concerned with the question as to whether the assessee should get the benefit of cost of construction of the 5 flats sold during the previous year. In our view, the assessee should be allowed the aforesaid benefit. Admittedly, the assessee had to pay a cost for acquiring these 5 flats. The Assessing Officer in the order of assessment has not given any cost to these flats. In our view, therefore the cost of 5 flats has to be worked out and for this purpose of working out the cost of acquisition of 5 flats, the matter is remanded to the Assessing Officer. The AO will verify the cost from the developer, who developed the properties and arrive at the cost of 8664 sq.ft. This cost should be debited to the trading account. The assessee has retained 3 flats out of 8 flats and we direct the cost of these 3 flats lying in the stock with the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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