TMI Blog2023 (11) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the Shri Safdar Hussain Khan[brother] is continuously sick till date. There is no action or efforts by the assessee and his brother before illness of his co-owner brother to show that the assessee and his brother formed any partnership firm or LLP entity or Company for said business venture and showing any action to apply for any approvals or permissions from the Government Authorities regarding development of land as a Multistory Commercial/Residential Project. Therefore, we are inclined to hold that the benefit of order of Ashok Agarwal HUF [ 2020 (8) TMI 94 - ITAT JAIPUR] is not available for the assessee in the present case. We reach to a logical conclusion that the AO was right in making addition by invoking provision under section 56(2)(vii) of the Act as a land in question was a capital asset and the same was not kept as stock-in-trade by the assessee and his co-owner brother. Appeal of assessee is dismissed. - Sh. G. S. Pannu, President And Shri Chandra Mohan Garg, Judicial Member For the Assessee : Dr. Rakesh Gupta, Adv. And Shri Somil Aggarwal, Adv. For the Revenue : Shri Kanv Bali, Sr. D.R. ORDER PER CHANDRA MOHAN GARG, JM : Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in making additions in the hands of the assessee by invoking inapplicable provision of section 56(2)(vii) of the Act and Learned CIT(A) was also not justified in upholding the same. The Learned Counsel thus submitted that the addition made by AO and upheld by CIT(A) may kindly be deleted. 4. Replying to the above, Learned Sr. D.R. supported the action of the AO and submitted that the Learned CIT(A) in para 7.2 has recorded a categorical finding that no independent evidence has been brought on record by the assessee either during the assessment proceedings or during the remand proceedings to substantiate that the purchased land was not a capital asset and it was stock-in-trade in the hands of the assessee and his brother. The Learned Sr. D.R. also submitted that if the appellant has held this land as stock-intrade then he would have made efforts to find prospective buyers and there was no evidence which could show that the appellant has made some efforts in this regard. The Learned Sr. D.R. also submitted that despite lapse of so many years, the appellant has not shown any inclination of trading in the said land and there was no earlier or subsequent explanation to show that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich exceeds Rs. 50,000/- the stamp duty value of such property would be charged to tax in the hands of the individual of HUF as income from other sources. The existing provision does not cover a situation where the immovable property has been received by an individual or HUF for inadequate consideration. As per amended provisions of clause (vii) of sub-section 56 where any immovable property is received for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration, shall be chargeable to tax in the hands of the individual or HUF as income from others sources. 5. Here is worthwhile to mention that for capital gain purpose provision of Sec-50C are applicable for the purpose of charging long term capital gain as well as short term capital gain taking the value for stamp purpose and the sale value whichever is higher i.e. in case capital assets is sold at lower value than the value for stamp purpose, it is the value for stamp purpose, which it to be taken for charging capital gain tax. The section 56(2)(vii)(b) speaks of capital assets and the same is app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, the AO has argued that the documents produced by the appellant are self drafted and self arranged and have been created just to avoid mischief of section 56(2)(viia)(b). It has been submitted that no independent evidence has been brought out by the assessee either during the assessment proceedings or during the remand proceedings to substantiate that the purchased land is not a capital asset. The AO had deputed and Inspector to visit the site and he has reported that the assessee has simply got constructed a boundary wall around the plot with some land filling and there is no evidence that the said land is held as stock in trade. It has also been indicated that the appellant's project has not been approved by the Khurja Development Authority. Considering the totality of the facts and evidence, I find merit in the AO's argument that there is no such evidence which would establish that the land in question is held as stock in trade. The land is in possession of the appellant for the past so many years and yet no portion of the land has been sold to any If the appellant has held this land as stock in trade, he would have made efforts to find prospective buyers. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o adjudicate the contention of the assessee then we know that the land was purchased by assessee and his brother on 10.12.2013 during F.Y. 2013-14 and even after laps of 3 years up to A.Y. 2015-16 except signing MOU no other action had been taken by the assessee and his brother showing their intention to develop the land as a business venture. 9. It is also pertinent to note that the judgment relied by the Learned Counsel of assessee rendered by Co-ordinate Bench of ITAT, Jaipure in the case of CIT vs. Shri Ashok Agarwal HUF (supra), the assessee successfully demonstrated its intentions of assessee to develop the land and undisputedly in that case the land in question was shown in the books of accounts as stock-in-trade and part of other closing stock. Therefore, the Tribunal held that the land in question was not under the ambit of trigger of section 56(2)(vii) of the Act. But the facts and circumstances of the present case are clearly distinguishable and dissimilar from the said case as in the present case, expect signing an MOU, there is no action or evidence on record by the assessee and his co-owner brother after laps of three years till his co-owner brother fall ill. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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