TMI Blog2017 (2) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... and learned Tribunal in holding that ₹ 1.50 crore was received in cash as on money. - Decided against assessee. admitted to consider the following question of law. "E. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal could have come to the conclusion that the entire gain on sale of said land was assessable as business income as against short term capital gain assessed by AO ?" - TAX APPEAL NO. 18 of 2017 - - - Dated:- 21-2-2017 - HONOURABLE MR.JUSTICE M.R. SHAH AND HONOURABLE MR.JUSTICE B.N. KARIA MR SN DIVATIA, ADVOCATE FOR THE APPELLANT MR NITIN K MEHTA, ADVOCATE , MRS MAUNA M BHATT, ADVOCATE FOR THE RESPONDENT ORAL ORDER (PER : HONOURABLE MR.JUST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal was perverse and based on irrelevant evidence or such as could be arrived at ? D. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal was justified in conforming the enhancement of income made by CIT(A) in respect of this land deal ? E. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal could have come to the conclusion that the entire gain on sale of said land was assessable as business income as against short term capital gain assessed by AO ? 2.0. The facts leading to the present Tax Appeal in nutshell are as under: 2.1. That the assessee filed return of income for AY 201011 declaring total income of ₹ 37,16,870 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the signature of the assessee. It was the case on behalf of the assessee that subsequently the transaction with the aforesaid prospective purchasers failed and therefore, the assessee with other four coowners executed the sale deed on 17.11.2009 for ₹ 73.58 Lakhs with one Shri Bhagwanbhai K Aajra and Dipak G Prajapati. Hence, the assessee worked out his share of short term capital gain at ₹ 42,23,000/and included same in the total income for the year under consideration. 2.3. That the AO during the course of assessment proceedings and after considering the noting on the loose papers found from the residence of Shri Vikas Patel, MOU with the said party, submission of different assessee etc. concluded that the sale consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue. 4.0. Shri Divatia, learned advocate for the assessee has vehemently submitted that the learned Tribunal has materially erred in confirming the order passed by the learned CIT(A) relating to the sale of the land in question both as quantum and substantive assessment in the hands of the assessee. 4.1. It is further submitted that even considering the incriminating material seized during the search, more particularly, Kaccha receipt, Banakhat and MOU at the most it can be said that sum of ₹ 36 Lakh was received in cash. It is further submitted that the assessee as such does not dispute the correctness of having received cash since he has already declared ₹ 36 lakhs in the return which is more than his share of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid to other coowners. It is further submitted that all the documents i.e. Kaccha receipt, Banakhat, MOU have been signed by the assessee only. It is submitted that therefore, on the facts and circumstances of the case, no error has been committed by the learned Tribunal in including the amount of ₹ 1.50 crores received by the assessee in cash in the hands of the assessee. Making above submissions, it is requested to dismiss the present appeal. 6.0. Heard the learned counsel for the respective parties at length. At the outset, it is required to be noted and it is not in dispute that as such whether the assessee received on money in cash is not in dispute and as such the assessee himself has admitted the receipt of on mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is any error committed by the learned CIT(A) and learned Tribunal in holding that ₹ 1.50 crore was received in cash as on money. Under the circumstances, present appeal qua proposed question nos. A to D deserve to be dismissed and is accordingly dismissed. 8.0. Present appeal is admitted to consider the following question of law. E. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal could have come to the conclusion that the entire gain on sale of said land was assessable as business income as against short term capital gain assessed by AO ? 9.0. Ms. Bhatt, learned counsel waives service of notice of admission on behalf of respondent-department. - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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