TMI Blog2020 (11) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... rties as capital asset has been accepted by the Revenue in the hands of other co-owners in the assessment proceedings u/s.143(3) of the Act. This fact has remained uncontroverted. 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 gains . Unexplained unsecured loan under Section 68 - HELD THAT:- Assessee has justified the conditions applicable with respect to cash credit under Section 68 i.e. identity, creditworthiness of the parties and the genuineness of the transactions of the loan taken from the parties as discussed above during the appellate proceedings. The necessary details furnished by the assessee in support of his claim were also forwarded to the AO for his comment. But we note that the Learned CIT(A) has given a clear finding that there was no adverse remark of the AO in the remand report with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng total income at ₹ 7,88,19,970/- and agriculture income of ₹ 1,32,315/- only. Out of the said total income, an income of ₹ 6,73,00,895/- was declared under the head capital gain consisting of ₹ 6,29,69,084/- towards the long-term capital gain and ₹ 43,31,811/- towards the short-term capital gain. 5. However, the AO during the assessment proceedings observed certain facts as detailed under: 5.1 The assessee during the year has sold 19 properties/lands which were in the nature of agricultural lands. Some of the lands were sold through the development agreements after converting into non-agricultural lands in such a manner that the assessee was executing the sales deed/handing over the possession to the party whereas the developer was acting as the confirming party. 5.2 The assessee has incurred cost for the conversion of agriculture lands into non-agricultural lands such as title clearance, approval of layout plans/maps from local authority, construction of compound wall and bridge which were claimed as cost of improvement. 5.3 The lands were sold to the developers in which the assessee was either the partner or has substantial interest in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of treatment of capital gain as business income. 8. Being aggrieved by the order of the Learned CIT(A) the Revenue is in appeal before us. 9. The Learned DR before us vehemently supported the order of the AO whereas the Learned AR before us submitted that the Tribunal in the own case of the assessee for the Assessment Years 2007-08 to 2012-13 bearing ITA Nos. 70 to 73/AHD/2016, 371/AHD/2016 and 29/AHD/2012 vide order dated 27.10.2016 has held that the assessee is not engaged in the business of dealing in lands and, therefore, the income on the sale and purchase of the lands is chargeable to tax under the head capital gain. Accordingly, the Learned AR vehemently relied on the order of the Learned CIT(A). 10. We have heard the rival contentions and perused the materials available on record. At the outset, we note that this Tribunal in the own case of the assessee (supra) has decided the issue in favor of the assessee involving identical facts and circumstances and after considering the order of the Tribunal bearing ITA No. ITA No. 238/AHD/2010 pertaining to the Assessment Year 2006-07 where the activity of purchase and sale of lands was held as business income. The relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decades in many cases. We find considerable weight in the plea of the assessee that intention at the time of purchase to hold impugned land/properties as a capital asset is manifest on records. The balance-sheet filed by the assessee over years, wealthtax returns filed by the assessee, adequacy of its own capital clearly underscore the intention of the assessee to hold land/properties as capital asset as claimed. Inextricably, we also take note of the plea of the assessee that he is a co-owner of impugned land/properties holding certain percentage of ownership-rights therein and the claim of the land/properties as capital asset has been accepted by the Revenue in the hands of other co-owners in the assessment proceedings u/s.143(3) of the Act. This fact has remained uncontroverted. We also note that having regard to the facts noted above, the Coordinate Bench of the Tribunal in assessee s own case relevant to AY 2004-05 has decided the issue in favour of the assessee. Thus, we find that the action of the AO was simply guided by the considerations of revenue alone outside the bounds of rationality. At this juncture, we have also carefully perused the order of the Coordinate Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment proceedings failed to furnish the necessary details to establish the identity, genuineness of the transactions and creditworthiness of the parties from whom he has taken the loan amounting to ₹ 37,25,000/- only under the provisions of Section 68 of the Act. The details of the parties from the assessee has taken the loan stand as under: Shri Parnav H. Amin ₹ 7,25,000/- Bansari Enterprise ₹ 30,00,000/- 14. Thus, the AO in the absence of necessary details treated the aforesaid loan as unexplained cash credit under Section 68 of the Act and added the same to the total income of the assessee. 15. Aggrieved assessee preferred an appeal to the Learned CIT(A) who deleted the addition made by the AO by observing as under: 6.1 In connection with the additions u/s 68, the paper book containing the identity of the creditors, genuineness of transactions and credit-worthiness of the creditors were forwarded to the AO for his examination and comments. The comment of the AO received vide letter dated 1/7/2017 was made available to the appellant who made the response on 19/12/2017. There is nothing relevant material in the report of the AO which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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