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TMI Blog2022 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ural Justice.. 2. Without prejudice to the forgoing ground and on the facts and in the circumstances of the case the learned CIT (A)-4, was not justified in confirming the order of the learned A.O., who did not apply his mind and simply coppied the order of the learned A.O. at Mumbai in case of the other co-owner of the appellant, ad verbatim and this honourable court be pleased to delete the said addition of Rs.57,88,2407-, as the same has been blindly confirmed by the learned CIT(A)-4 by passing a Non-Speaking Order. 3. Without prejudice to the forgoing grounds and on the facts and the circumstances of the case, the learned CIT(A) was not justified in law in confirming the addition of Rs.57,88,2407-, without considering the actual marketability or profitability of lands in an area called as MIHAN, which is still a doubtful location for any Industry to commence its business and this honourable court be pleased to annual the assessment framed u/s148. 4. Without prejudice to the forgoing grounds and on the facts of the circumstances of the case, the learned CIT(A)-4 was not justified in law in not Distinguishing the appellate order passed by honourable ITAT Mumbai 'D' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) confirmed the order of the Assessing Officer by observing as under:- "3.0 I have gone through the order of the assessing officer, the grounds of peal and the submissions given by the appellant. From the details, it is see that property was jointly owned by the appellant alongwith his father, Shri Ratansi Mulji Patel. Both of them were having 50% share in the property. It is seen that the assessments were also completed in case of appellants father and similar additions were made. The appellants father filed an appeal before the CIT(A)-33 Mumbai vide Appeal No.CIT(A)-33/IT/248/10-11 order dtd. 27/05/2011. The CIT(A)-33 Mumbai, deleted the addition made by the AO on the ground that the land was recorded in revenue records as agricultural land and it remained so even in the immediate next year. The CIT(A) held that the said land was covered u/s 2(14)(iii) and accordingly the profit from the said land were not taxable. 3.1 Against this order of the CIT(A), the Department had filed an appeal before the ITAT Mumbai 'D' Bench Mumbai. The ITAT Mumbai D Bench Mumbai vide its order in ITA No.5499/Mum./ 2011 for Asst. Year 2008-09 has sustain the addition made by the AO and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of Trade" 8. We have carefully considered the rival contentions, perused the orders of the authorities below and the material placed on record. We find that the assessee herein was a co-owner of an agricultural land situated at approx. eight kilometers on Wardha Road, Nagpur and as per the revenue records the said land is still agricultural land. The said land was sold by the assessee at Rs. 57,88,246. The return of income was filed by the assessee, however, no enquiry was made by the authorities below. The other co-owner was assessee's father Shri Ratanshi Malji Patel who was residing at Ghatkopar, Mumbai. We observe that if the Revenue have doubt over the sale of the said piece of land by the assessee, the Assessing Officer was at Nagpur and the property of the assessee was situated at Nagpur and the Assessing Officer ought to have visited the site and found the fact. In this regard, both the authorities below have failed to make any enquiry on the sale of land. Since the said plot is still vacant, it is obvious that the assessee had not derived any benefit out of the said plot. We have also gone through the order passed by the Co-ordinate Bench of the Tribunal, Mumbai Bench, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation but to resale the same at the earliest possible occasion. Undoubtedly, the land is situated at the main road near the city of Nagpur and In the vicinity of SEZ which means, the entire surrounding area Is commercially developed. Further, the land was sold within a short period of 11 month to the builder for non-agricultural use and purpose. All these facts clearly reflects the commercial and profit element in the purchase and sole transactions of land in question. 5.4 The honourable Supreme Court in case of Gemini Pictures Circuit Private ltd. (supra} has observed and held in paragraph 5 and 6 as under: "5 A recent decision of this court in Sarifabibi Mohmed Sbrahim v. CIT, [1993] 204 ITR 63], rendered by a Bench comprising one of us (P. P. Jeevan Reddy J) is relied upon by learned counsel for the Revenue. The Bench observed : "Whether the land is an agricultural land or not is essentially a question of fact. Several tests have been evolved in the decisions of this court and the High Courts, but all of them are more in the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer assessed the capital gain arising from sale of agricultural land; therefore, the said decision would not apply in the case in hand where the Assessing Officer has assessed the gain from sate of the land as business income. 6 in view of the above discussion and in the facts and circumstances of the case, we hold that the nature of transaction of purchase and sale was rightly held by the Assessing Officer as trading. Accordingly, we set aside the impugned order passed by the CIT(A) and restore that of Assessing Officer." 9. As we have been intimated at the Bar that the aforesaid decision of the Tribunal has been challenged before the Hon'ble Jurisdictional High Court by the assessee and the matter is pending final disposal, therefore, we have no other choice except to follow the aforesaid decision of the Tribunal rendered in assessee's Father's case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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