TMI Blog2020 (10) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... report with respect to the impugned unsecured loan. Therefore, CIT(A) has deleted the addition made by the AO. At the time of hearing the Learned DR has not brought anything on record contrary to the finding of the Learned CIT(A). Accordingly, we are not inclined to interfere in the order of CIT(A). Hence, the ground of appeal of the Revenue is dismissed. - ITA No(s) 1011/Ahd/2018 - - - Dated:- 19-10-2020 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri M. K. Patel Smt. Arti N. Shah, AR's For the Revenue : Shri VirendraOjha, CIT DR. ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The appeal has been filed by the Revenuefor A.Y. 2013-14which are arising from the order of the CIT(A)-12, Ahmedabad dated 06.02.2018, in the proceedings under section 143(3)of the Income Tax Act, 1961 (in short the Act ). 2. The Revenue has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT (Appeals) erred by ignoring the fact that the assessee is disclosing the capital gain on sale of lands every year, therefore, the apparent is not real as the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 The assessee has been purchasing the lands continuously since the last several Financial Years beginning from 1993- 94 to 2010-11. 5.5 The entry in the books of accounts, showing the lands as investment and not as stock-in-trade, is not conclusive evidence to draw an inference that the assessee is not engaged in the business of dealing in lands. 6. In view of the above, the AO was of the opinion that the assessee is carrying on a systematic activity of purchasing and selling of the lands which is in the nature of business. The AO also found that the ITAT in the own case of the assessee for the Assessment Year 2006-07 in ITA No. 238/AHD/2010 vide order dated 30-04-2013 has held that the assessee is engaged in the business of trading in lands. Accordingly, the AO treated the income of capital gain as shown by the assessee under the head business and profession. Hence,the AO made the addition of ₹ 2,80,44,681/- to the total income of the assessee. 7. Aggrieved assessee preferred an appeal to the Learned CIT(A) who directed the AO to tax the impugned income under the head capital gain by observing as under: 6. As to the treatment of sales and purchases of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is reproduced as under: 11. We have carefully considered the rival submissions and assessment order as well as the order of the CIT(A) appealed against and also various documents and referred to at the time of hearing and case-laws cited. The common issue that transcends in all the present appeals is whether gains arising on sale of land and other properties by the assessee in the relevant assessment years is required to be taxed under the head capital gains as offered by the assessee or is to be treated as business income of the assessee. The issue involved is essentially factual in nature. It is the case of the assessee that the land and other properties were no correction and acquired/purchased over several years and held as capital asset in the nature of investment. From the written submissions of the assessee as extracted by the CIT(A) in his order, we note that there a considerable time lag between the purchase and the sale of land and other properties. Simultaneously, the land/properties have been declared as capital investment by the assessee all along. We also take note of the fact that some of the properties were let out and rent thereon was earned as a yi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee s own case for AY 2006-07 where adverse view has been taken. However, we take note of the fact that the Coordinate Bench of the Tribunal in the matter for AY 2006-07 has taken a different view in departure with the earlier order of the Coordinate Bench relevant to Asstt.Year 2004-05 mainly on the premise that the agricultural income has not been declared on the agricultural land held in that year. As pointed out on behalf of the assessee, agricultural income has been duly reported in all assessment years except AY 2006-07. Therefore, the facts prevailing in the captioned appeals are proximate with AY 2004-05 where the facts are found to be on same pedestal and distinguishable qua AY 2006-07. Thus, the facts prevailing in AY 2007-08 are somewhat different. Therefore, respectfully following the decision of the Coordinate Bench of the Tribunal in AY 2004-05 and having regard to the totality of the facts and circumstances noted above, we find considerable merit in the plea of the assessee. We accordingly hold that land/properties were held by the assessee as capital asset before its sale and consequential gains arising on sale thereto is chargeable under the head of capital gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the appellant. On going through the details, it is seen that the credits of ₹ 30,00,000/- from Bansari Enterprise and ₹ 7,25,000/- from Shri Pranav H. Amin are genuine and meet all the tests u/s 68/69A of the Act and there remains no case for addition u/s 68 of the Act. The AO is directed to delete the addition of ₹ 37,25,000/-. 7. Thus the appeal is partly allowed. 16. Being aggrieved by the order of the Learned CIT(A) the Revenue is in appeal before us. 17. The Learned DR before us vehemently supported the order of the AO whereas the Learned AR submitted that the loan taken from M/s Bansari Enterprises for ₹ 30 lakhs was returned through the banking channel in the Financial Year 2013-14. Furthermore, the confirmation of the party along with bank statement of the party was furnished during the remand proceedings.Similarly, there was the opening balance in the account of Shri Pranav H Amin amounting to ₹ 40 Lacs and a sum of ₹ 7,25,000/- was received in the year under consideration. But at the same time there was the repayment of the loan amounting to ₹ 7,25,000/- and ₹ 7,75,000/- respectively. Furthermore, the confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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