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TMI Blog2016 (8) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... d are being disposed of by this consolidated order for the sake of convenience. However, reference is being made to the facts in ITA No.332/PN/2016 to adjudicate the issue. 3. The assessee in ITA No.332/PN/2016 has raised the following grounds of appeal:- 1. On the facts and circumstances of the case and in law: a. The AO erred in computing capital gain and CIT(A) confirmed when the asset sold is not capital asset as per section 2(14) of IT Act, 1961 being agricultural land and same may be deleted. b. Without prejudice to above contention, AO has erred in invoking provision of Sec.50C without applying due process of law viz. referring to valuation officer and taking the market value as determined by the valuation officer. c. The CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains in respect of land and also the applicability of provisions of section 50C of the Act. The assessee along with two other persons of having equal share had sold land in Survey No.131/2 of Amode in Shirpur Taluka, admeasuring 2H 33R for sale consideration of Rs. 15,71,000/-. However, stamp duty valuation authority fixed the value at Rs. 1,21,44,000/- and stamp duty thereon at Rs. 4,85,760/- was paid. The cost of land purchased on 19.06.1999 by three persons was for Rs. 7,50,000/-. The Assessing Officer noted that there was Sauda Pavti prepared between the parties which was not signed by the parties and was also not registered with the Sub-Registrar. However, it talks of encroachment by one Mr. Mongal Singh Daulat Singh Rajput and it also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of transaction, whether a trader or investor, the CIT(A) gave a show cause notice to the assessee as to why income should not be enhanced in the hands of assessee by treating the said gain as 'Income from business'. The assessee filed reply to the said show cause notice. However, rejecting the contention of assessee, the CIT(A) held that the income from sale of land is to be assessed as 'Income from business'. The gain as worked out by the Assessing Officer by applying the provisions of section 50C of the Act was assessed as 'Income from business in the hands of assessee at Rs. 37,88,000/-. 8. The assessee is in appeal against the order of CIT(A). 9. The limited issue which arises for adjudication before the Tribunal is that where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome be assessed as 'Income from business' in view of various decisions of Pune Bench of Tribunal, since no agricultural activities were carried on by the assessee. However, once the income is assessed as business income, then the provisions of section 50C of the Act are not to be applied for adopting the sale consideration in the hands of assessee. I find merit in the plea of assessee in this regard that where the income is being assessed in the hands of assessee as 'Income from business', then for computing the said income, the sale consideration as such has to be adopted and after allowing the cost of acquisition of said property, the balance profit / gain is to be assessed in the hands of assessee as 'Income from business'. The provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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