TMI Blog2022 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow the aforesaid decision of the Tribunal rendered in assessee s Father s case [ 2012 (10) TMI 710 - ITAT MUMBAI] wherein the Tribunal has set aside set aside the order passed by the learned CIT(A) and restored the order of the Assessing Officer. Consequently, in view of the decision of the Tribunal rendered in assessee s Father s case, we uphold the impugned order passed by the learned CIT(A) by dismissing the grounds raised by the assessee. - ITA No.13/Nag./2016 - - - Dated:- 28-4-2022 - Shri Sandeep Gosain, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Shri V.V. Saranjame For the Revenue : Smt. Agnes P. Thomas ORDER PER ARUN KHODPIA, A.M. The aforesaid appeal has been preferred by the assessee challenging the impugned order dated 10th December 2015, passed by the Commissioner of Income Tax (Appeals) 4, Nagpur, [in short the learned CIT(A) ] under section 250 of the Income Tax Act, 1961 (in short the Act ) for the assessment year 2008 09-09. 2. The assessee has filed this appeal on the following grounds:- 1. On the facts and in the circumstances of the case the learned CIT(A)-4 was not justified in conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sale consideration within eleven months from the date of purchase of property. It was further observed by the Assessing Officer that the assessee had not filed any details of agricultural products, seeds manure or any other details regarding agricultural operation. Based on these facts, the Assessing Officer observed that the land which was sold at Bothali in Nagpur District was not an agricultural land but a commercial / trading asset. The assessee had sold the land to Shri Kondavar Group of Builders. It was also noticed by the Assessing Officer that the assessee had purchased one more property during F.Y. 2008-09 at Wathoda and had sold the same on 30th August 2007 for consideration of ₹ 4,00,000/-. The gains of ₹ 32.250/- were not shown in the return of income filed by the assessee. The Assessing Officer further made observations that agricultural operations were not carried out on the said land and the land was situated on Wardha Road, which is a fast developing commercial area. Based on these facts, the Assessing Officer concluded that since no agricultural operations were taking place and the intention of the assessee was to ale the land and earned profit, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able span of time prior to the date of sale and further whether on the date of purchase the land was intended to be put to use for agricultural purposes for a reasonable span of time in future. 3.2 Considering that the Hon'ble ITAT Mumbai 'D' Bench Mumbai has sustained the additions made by the AO regarding 50% of the profits of the same property, it is held that the AO was justified in adding income of Rs. 57,88,2407- as income from business. Accordingly, the additions made by the AO is sustained and grounds of appeal are dismissed. 6. The learned Counsel for the assessee submitted that in assessee s father s case before the Tribunal, Mumbai Bench, the learned Departmental Representative appearing for the Revenue has given a false picture of the area where the land is situated as huge profit making sale. He submitted that this is nothing but a misleading facts brought before the Tribunal. He further submitted that it is wrong to call it as income in the nature of adventure in trade which is without any financial advantage. The learned Counsel thus prayed that a proper and true assessment be made with regard to the sale of land in question. 7. The learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.05.2007 ₹ 6,17,333 11.05.2007 ₹ 6,17,333 11.05.2007 ₹ 30,00,000 11.05.2007 ₹ 30,00,000 Total: ₹ 60,00,000 Total ₹ 60,00,000 5,1 The details of consideration show that the assessee received the consideration in 3 instalments and about 40% of the consideration was received on 01/10/2006, which means that the sale deaf was finalised prior to the receipt of part consideration on O!/10/2006 and the fine! payment was received on 11/05/2007. in other words, the assesses decided to self the sold land prior to 01/10/2006, which is within 11 months from the date of purchase, The Assessing Officer held that the transaction of purchase and sale ore in the nature of adventure and therefore, it is in the nature of trade and not acquisition of capital asset for agricultural purposes. 5,2 In order to determine the real nature of transaction of purchase and sale various factors ore to be token Info consideration viz the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and against, the Bombay High Court observed in V.A, Trrivedi s case [1988J 172 ITR 95 that for ascertaining the true character and the nature of the land, it must be seen whether it has been put to use for agricultural purposes for a reasonable span of time prior to the date of sale and further whether on the date of sale of the land was intended to be put to use for agricultural purposes for a reasonable span of time in future. Examining the case from the said point of view, the High Court held that the fact that the agreement of safe was entered into by the assesses with a housing society is of crucial relevance since it showed that the assessee had agreed to sell the land for admittedly non agricultural purposes. The ratio of the said decision was approved In Sarifabibi s case [1993] 204 ITR 631 (SC). 6. We do not think it necessary to multiply the cases, since, in our respectful opinion, no other conclusion is reasonably possible in the facts of the case before us than the one arrived at by us. All the three authorities under the Act too arrived at the same conclusion. With great respect to the learned Judges of the High Court, we find their conclusion fully unsustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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