TMI Blog2018 (10) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... HIGH COURT] to the facts of the instant case and reached to the conclusion that assessee alongwith 8 other persons entered into transaction for sale and purchase of land. Intention was not to carry out any agricultural activity as because sale was carried out barely within few months of the acquisition. CIT(A) also observed that area of land located is being developed for the purpose of Holiday Homes, Farm houses located near to Karjat. The detailed findings so recorded by lower authorities by applying various judicial pronouncements have not been controverted by bringing any positive material on record. Accordingly, we do not find any reason to interfere in the order of lower authorities for treating profit on sale of plot of land as business income. - decided against assessee. - ITA No.321/Mum/2018 - - - Dated:- 11-10-2018 - Shri R.C. Sharma, AM And Shri Ram Lal Negi, JM For the Assessee : Shri N.M. Porwal For the Revenue : Shri Manoj Kumar ORDER PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A)- 2, Pune dated 14/09/2017 for A.Y.2012-13 in the matter of order passed u/s. 143(3) of the IT Act. 2. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 Mamdapur 80/1A 29/11/2010 74,949 04/07/2011 100,000 25,051 TOTAL Rs. 2,020.0 3,127,500 1.107,499 6.1 On a perusal of the aforesaid chart, it is seen that plots of land were sold within few months of tie acquisition which certainly shows that the intention of the appellant was not to make a capita investment but to earn profit. The appellant was also not at all interested in carrying out any agricultural activity. It is also noticed that the appellant had carried out the transaction of purchase and sale of the land alongwith eight other persons. 6.2. To determine the nature of transaction, the dominant intention of the assessee has to be seen. If the intention is to embark on a venture in the nature of trade as distinguished from a capital investment, it would make no difference even if the transaction is single or isolated one. This proposition has been laid down by Hon'ble Delhi High Court in the case of R. Dalmia vs. CIT 137 ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose for which the land was held by the present owner. A firm which holds it may well be presumed to have held it as stock-in-trade and not for carrying out agricultural operations. (7) As regards use of the land for agricultural purposes prior to sale, mere use ' in remote past though land revenue is paid, would not make it agricultural. (8) Mere capability of being used as agricultural land is not enough. [Para 8.3] 6.8 Applying the above tests in the appellant's case, it is seen that the land in question meets the criteria as laid down by the Hon'ble Rajasthan High Court. The appellant along with eight other persons entered into the transaction for sale and purchase of the land. The intention was certainly not to carry out any agricultural activity as because sale was carried out barely within few months of the acquisition. It is further where land is located is being of Holiday Homes, Farm houses and is located near to . However, in the present case, the transaction has not been considered as capital gains but as adventure in the nature of trade and therefore, the provision of Section 2(14) of the IT Act are not applicable. 6.9. To reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature or character of the land and, therefore, whenever a question arises whether a particular land is agricultural or not, primarily' regard must be had to the purpose for which the land is being actually used at or about the relevant time which would ordinarily provide a satisfactory answer to the problem [see Rasiklal Chimanlal Nagri vs CWT (1965) 56 ITR 608 (Guj); CIT vs Manilal Somnath (1977) 106 ITR 917 (Guj]. Reliance was placed on the decision of Hon ble Supreme Court in the case of All India Tea Trading Co. Ltd -219 ITR 0544, wherein it was held that the compensation received on compulsory acquisition of agricultural land admittedly used for agricultural purposes clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from land and thus the amount received has to be regarded as agricultural income. Reliance was also placed on the decision of Bombay High Court in case of Manu Bhai A Sheth 128 ITR 087 and Gujarat High Court in the case of Manilal Somnath 106 ITR 0917. Reliance was also placed on the decision of Hyderabad Tribunal Bench in the case of Tulla Veerender 160 TTJ 0435. 9. On the other hand learned DR relied ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
