M B Janardhan, Hyderabad V. DCIT, Hyderabad

CO 79/HYD/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7459 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAGESWARA RAO
• Assessee Lawyers: D RANGA RAO
• Keywords: Capital asset; Search and seizure; Cost of acquisition
• Section: 54B; 54F; 2(14); 131; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIA MEMEBR ITANO. ASSTT. YEAR APPELLANT RESPONDENT 1099/H/2010 2007- 08 DCIT, C.C-2, HYDERABAD. SMT. M. POCHAMMA, RR DISTRICT. PAN:BCGPM2668 K 1100/H/2010 -DO- -DO- SMT. KAUSALYA, RR DISTRICT. PAN:APSPM3327 D 1101/H/2010 -DO- -DO- M. SURENDHAR, RR DISTRICT PAN:APSPM 3344 N 1102/H/2010 -DO- -DO M.B. JANARDHAN, RR DIST. PAN:BCGPM 2666H 1103/H/2010 -DO- -DO- SMT. M. SARASWATHI, RR DISTRICT PAN:BCGPM 2409 A 1104/H/2010 -DO- -DO- M.B. SUDARSHAN, RR DISTRICT PAN:ADFPM 7337 D 1105/H/2010 -DO- -DO- SMT. M. NARASAMMA, RR DISTRICT PAN:BCGPM3080 H 1106/H/2010 -DO- -DO- B.N. CHANDRAMOHAN,RR DISTRICT PAN:AKOPB 1415 A 1107/H/2010 -DO- -DO SMT. M. NAVANEETHA, RR DISTRICT. PAN:BCGPM 2665E ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 2 1108/H/2010 -DO- -DO- SMT.M. SWAROOPA,RR DISTRICT PAN:BCGPM 2410 M 1109/H/2010 -DO- -DO- SMT. M. PUSHPAMMA, RR DISTRICT. PAN:APSPM 5223 L C O NO. A.YR. APPELLANT RESPONDENT 76/HYD /10 (IN ITA 1099/H/10) 2007- 08 SMT. M. POCHAMMA, RR DISTRICT. DCIT, C.C-2, HYDERABAD. 77/HYD/10 (IN ITA 1100/H/10) -DO- SMT. KAUSALYA, RR DISTRICT. -DO- 78/HYD/10 (IN ITA 1101/H/10) -DO- M. SURENDHAR, RR DISTRICT -DO- 79/HYD/10 (IN ITA1102/H/10) -DO- M.B. JANARDHAN, RR DIST. -DO- 80/HYD/10 (IN ITA 1103/H/10) -DO- SMT. M. SARASWATHI, RR DISTRICT -DO- 81/HYD/10 (IN ITA 1104/H/10) -DO- M.B. SUDARSHAN, RR DISTRICT -DO- 82/HYD/10 (IN ITA 1105/H/10) -DO- SMT. M. NARASAMMA, RR DISTRICT -DO- 83/HYD/10 (IN ITA 1106/H/10) -DO- B.N. CHANDRAMOHAN,RR DISTRICT -DO- 84/HYD/10 (IN ITA 1107/H/10) -DO- SMT. M. NAVANEETHA, RR DISTRICT. -DO- 85/HYD/10 (IN ITA1108/H/10) -DO- SMT.M. SWAROOPA,RR DISTRICT -DO- 86/HYD/10 (IN ITA1109/H/10) -DO- SMT. M. PUSHPAMMA, RR DISTRICT. -DO- ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 3 DEPARTMENT BY: SRI NAGESWARA RAO ASSESSEES BY: SRI D. RANGA RAO DATE OF HEARING: 23-5-2012 DATE OF PRONOUNCEMENT:20-7-2012. O R D E R PER BENCH:- THE FIRST 11 APPEALS FILED BY THE REVENUE AND OTHER 11 CROSS OBJECTIONS FILED BY DIFFERENT ASSESSEES ARE D IRECTED AGAINST SEPARATE ORDERS OF CIT (A)-I, HYDERABAD AND THEY ALL PERTAIN TO THE ASSESSMENT YEAR 2007-08. SINCE COM MON ISSUES FOR CONSIDERATION ARE INVOLVED IN ALL THESE APPEALS AS WELL AS CROSS OBJECTIONS, THESE ARE CLUBBED TOGETHE R AND DISPOSED OF BY THIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. SINCE GROUNDS RAISED BY THE REVENUE ARE IDENTICA L AND SIMILAR, FOR THE SAKE OF BREVITY, WE REPRODUCE HERE UNDER THE GROUNDS RAISED BY THE REVENUE IN ITA NO. 1104/HYD/2 010:- 1. THE CIT (A) ERRED BOTH ON FACTS AND IN LAW IN DIRECTING TO ADOPT THE COST OF 85% OF LAND SO TRANSFERRED VIDE FIRST DEVELOPMENT AGREEMENT ENTERED INTO BY THE ASSESSEE AS COST OF ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 4 ACQUISITION OF THE 15% LAND SOLD AWAY BY THE ASSESSEE VIDE SECOND SALE DEED. 2. THE CIT (A) FAILED TO DISTINGUISH BOTH THE TRANSACTIONS MADE VIDE DEVELOPMENT AGREEMENT DATED 31-1-2001, WHICH WAS NOT CONSIDERED AS CAPITAL ASSET, AND THE SALE DEED DATED 20-4-2006 THROUGH WHICH RIGHTS ON 15% OF THE DEVELOPED LAND WERE RELINQUISHED, AS SEPARATE AND NOT RELATED TO EACH OTHER FOR THE PURPOSE OF CAPITAL GAINS. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 3. BRIEFLY, THE FACTS ARE A SEARCH AND SEIZURE OPER ATION WAS CONDUCTED IN THE CASE OF M/S AMBIENCE PROPERTI ES LIMITED AND ITS SISTER CONCERNS ON 9-10-2007. IN CO URSE OF SEARCH AND SEIZURE OPERATION, THE IT AUTHORITIES FO UND AND SEIZED A DEVELOPMENT AGREEMENT ENTERED BY THE ASS ESSEE FAMILY WITH M/S FORTUNE CONSTRUCTIONS PVT. LTD., WIT H RESPECT TO AGRICULTURAL LAND OF AC.50.39 GUNTAS SITUATED I N GUNDLAPOCHAMPALLY VILLAGE, MEDCHAL MANDAL, RR DISTR ICT. IN PURSUANCE TO THE DEVELOPMENT AGREEMENT CUM GPA DATE D 31-1-2001, THE ASSESSEE ALONG WITH HIS FAMILY MEMBE RS GAVE POSSESSION OF THE LAND TO THE DEVELOPER M/S F ORTUNE ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 5 CONSTRUCTIONS PVT. LTD., ON THE CONSIDERATION TO REC EIVE 15% OF THE TOTAL DEVELOPED AREAS. THE ASSESSEE ALONG WITH HIS FAMILY MEMBERS ENTERED INTO ANOTHER AGREEMENT WITH M/S KONCEPT NIRMAN PVT. LIMITED ON 20-4-2006 SELLING TH EIR RIGHTS IN 15% OF THE DEVELOPED LAND FOR A TOTAL CON SIDERATION OF RS.8.50 CRORES. ON THE BASIS OF THE ABOVE FACTS , THE ASSESSING OFFICER HELD A VIEW THAT IT WAS DEEMED TR ANSFER AS PER SECTION 2(47) OF INCOME-TAX ACT. THE ASSESSING OFFICER THEREFORE ISSUED A NOTICE U/S 153C TO THE ASSESSEE AND ALL HIS FAMILY MEMBERS. NEITHER THE ASSESSEE NOR HIS F AMILY MEMBERS APPEARED IN RESPONSE TO THE NOTICE ISSUED. FROM THE RECORDS, THE ASSESSING OFFICER FOUND THAT IN CO URSE OF POST SEARCH ENQUIRY, THE ASSESSEE WAS SUMMONED U/S 131 OF THE I T ACT AND STATEMENT WAS RECORDED FROM HIM ON 28- 1-2008. IN COURSE OF RECORDING OF STATEMENT, THE S AID ASSESSEE SRI M. B. SUDARSHAN HAD GIVEN A BIFURCATIO N OF THE CONSIDERATION RECEIVED BY EACH OF THE FAMILY MEMBER S TOWARDS SALE OF THEIR 15% RIGHT IN THE DEVELOPED LA ND WHICH IS GIVEN HEREUNDER:- NAME OF THE FAMILY MEMBER CONSIDERATION 1. M.B. SUDHARSHAN 36,90,000 2. M.B. JANARDHAN 36,11,000 3. M.SARASWATHI 93,76,000 ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 6 4. M. PUSHPAMMA(INCLUDES THE SHARE OF LATE M.B. RATNAM) 1,87,72,000 5. M. NARASAMMA 83,97,000 6. M. POCHAMMA 1,09,45,000 7. M.SWAROOPA 79,24,000 8 B.N. CHANDRA MOHAN 60,03,000 9. M.KOUSHLYA 60,03,000 10. M.SURENDER 49,81,000 11. M. NAVANEETHA 58,98,000 TOTAL 8,50,00,000 4. NEITHER THE ASSESSEE NOR HIS FAMILY MEMBERS APPE ARED BEFORE THE ASSESSING OFFICER IN PURSUANCE OF NOTICE ISSUED U/S 153C OF THE ACT. THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 ON 28-8-2009 TO THE ASSESSEE AND HIS FAMILY MEMBERS. IN PURSUANCE TO THE SUMMONS, THE ASSESSEE APPEARED AND A STATEMENT WAS RECORDED. IN THE STAT EMENT RECORDED U/S 131, THE ASSESSEE ADMITTED OF HAVING S OLD THEIR 15% RIGHT IN THE DEVELOPED LAND TO M/S. KONCEPT NIR MAN PVT. LIMITED ON 20-4-2006 FOR A CONSIDERATION OF RS .8.50 CRORES. THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT SINCE THE LAND TRANSFERRED WAS AGRICULTURAL L AND, NO CAPITAL GAINS TAX ARISE. THE ASSESSING OFFICER HE LD THAT THE AGRICULTURAL LAND HANDED OVER TO THE DEVELOPER FORT UNE ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 7 CONSTRUCTIONS (P) LIMITED ON 31-1-2001 IS NOT SUBJEC T TO CAPITAL GAIN BEING AGRICULTURAL LAND. HOWEVER, SO FAR AS THE SALE OF 15% RIGHT IN DEVELOPED LAND IS CONCERNED, T HE ASSESSING OFFICER HELD THAT THE SAID TRANSFER AMOUN TS TO CAPITAL GAINS SINCE THE NATURE OF ASSETS TRANSFERRE D IS NOT AGRICULTURAL LAND. THE ASSESSING OFFICER ON THE BA SIS OF ABOVE FINDING COMPUTED LONG TERM CAPITAL GAINS BASE D ON SHARE OF LAND HOLDING FALLING IN RESPECT OF THE ASS ESSEE AND OTHER FAMILY MEMBERS. SO FAR AS THE ASSESSEE IS CON CERNED, THE CAPITAL GAINS WAS COMPUTED AT RS.36,30,315/-. THE ASSESSEE BEING AGGRIEVED OF THE ASSESSMENT FILED AN APPEAL BEFORE THE CIT (A). 5. IN COURSE OF HEARING BEFORE THE CIT (A), THE ASS ESSEE AGAIN REITERATING ITS STAND TAKEN BEFORE THE ASSESS ING OFFICER CONTENDED THAT THE LAND BEING AGRICULTURAL ONE, SIT UATED BEYOND 8KM OF MUNICIPAL LIMITS, THE SALE CONSIDERAT ION IS NOT SUBJECT TO CAPITAL GAINS. THE CIT (A) AFTER CONSID ERING THE FACTS, ACCEPTED THE CONTENTION OF THE ASSESSEE SO F AR AS TRANSFER OF LAND TO THE DEVELOPER M/S. FORTUNE CONS TRUCTIONS PVT. LTD., UNDER THE DEVELOPMENT AGREEMENT UNDER GPA TO BE OUTSIDE PURVIEW OF CAPITAL GAINS AS IT INVOLVED TRANSFER OF AGRICULTURAL LAND. HOWEVER, SO FAR AS SALE OF 15% RIGHT IN DEVELOPED LAND TO M/S. KONCEPT NIRMAN PVT. LIMITED I S CONCERNED, THE CIT (A) CAME TO HOLD THAT SECOND TRA NSACTION ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 8 IS DISTINCT AND SEPARATE FROM THE FIRST ONE AND, TH E ASSET TRANSFERRED IS NOT AGRICULTURAL LAND AND THEREFORE CAPITAL GAINS TAX IS LEVIABLE. THE CIT (A) HOWEVER FOUND TH AT THE AO HAS TAKEN THE COST OF ACQUISITION OF THE LAND AS ON THE DATE OF PURCHASE WHICH WAS IN SOME CASES IN THE YEAR 198 0 AND IN SOME CASES IN THE YEAR 1989. THE CIT (A) HELD THAT SUCH CALCULATION OF COST OF ACQUISITION ADOPTED BY THE A SSESSING OFFICER IS NOT CORRECT SINCE THE ASSESSING OFFICER HAS CONSIDERED THE VALUE OF AGRICULTURAL LAND WHICH HA S ALREADY BEEN TRANSFERRED TO M/S. FORTUNE CONSTRUCTIONS PVT. LTD., IN 2001. WHAT HAS BEEN TRANSFERRED BY THE ASSESSEE AN D FAMILY TO M/S. KONCEPT NIRMAN PVT. LIMITED IS NOT TH AT LAND BUT 15% INTEREST IN THE DEVELOPED LAND. THE CIT (A ) THEREFORE DIRECTED THE AO TO FIND OUT THE VALUE OF THE PROPERTY, REGISTERED FROM THE OFFICE OF THE SUB-REG ISTRAR ON THE BASIS OF WHICH STAMP DUTY OF RS.5,41,675/- WAS PAID WHICH SHOULD BE ADOPTED AS THE COST OF ACQUISITION OF 15% RIGHT IN THE DEVELOPED LAND WHICH WAS SUBSEQUENTLY TRANSFERRED TO M/S. KONCEPT NIRMAN PVT. LIMITED. CIT (A) DIRECTED THE ASSESSING OFFICER TO GIVE BENEFIT OF INDEXATION AS IN THE CASE OF TRANSFER OF LONG TERM CAPITAL ASS ET. 6. IN COURSE OF HEARING BEFORE US, THE COUNSEL ON E ITHER SIDE APART FROM MAKING THEIR SUBMISSIONS ORALLY HAV E ALSO ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 9 FILED DETAIL WRITTEN SUBMISSIONS. THE ASSESSEE MADE THE FOLLOWING SUBMISSIONS:- WITH REFERENCE TO THESE GROUNDS FILED BY THE DEPART MENT, WE STATE AS FOLLOWS: 1) THE APPELLANT DID NOT RECEIVE ANY DEVELOPED ARE A AND THE COST OF ACQUISITION OF ASSUMED DEVELOPED AREA FOR ACADEM IC INTEREST, BE TAKEN AT RS. 3,000 PER SQ. YARD. 2) AS PER THE FIRST DEVELOPMENT AGREEMENT, THERE WA S NO CAPITAL GAIN AND THE SECOND SALE DEED STEPS INTO THE SHOES OF FIRST DEVELOPMENT AGREEMENT. 3) THE LAND WAS IN THE SAME SHAPE SINCE NO PERMISSI ON HAS BEEN GRANTED FOR DEVELOPMENT TILL 2005-06. 4) THE C.I.T. APPEALS VIDE THEIR ORDER DATED 14-06- 2010, IN THE PARA 5, POINT 2 STATED AS FOLLOWS: IN OTHER WORDS, THE COST OF ACQUISITION ADOPTED BY THE AO SHOULD BE SUBSTITUTED IN THE MANNER LAID DOWN ABOVE AND TH E CAPITAL GAINS SHOULD BE WORKED OUT IN ACCORDANCE WITH THE P ROVISION OF THE ACT. THE AO MAY ALSO GIVE AN OPPORTUNITY TO THE APPELLANT WHILE WORKING OUT THE CAPITAL GAINS IN ACCORDANCE W ITH THE DIRECTION GIVEN ABOVE. IN OUR VIEW, THE DIRECTION HAS NOT BEEN FULFILLED F OR THE FOLLOWING REASONS: A) THE EXPENDITURE OF RS. 98,00,000 IN CONNECTION W ITH TRANSFER AS A GROUP HAS BEEN DEDUCTED. PAGE NO. 30 & 31 OF PAPER BOOK MAY BE REFERRED TO I N THIS CONTEXT. B) THE APPELLANTS HAVE ACQUIRED PROPERTIES AS PER L IST GIVEN WHICH ARE ENTITLED FOR EXEMPTION U/S 54B & 54F. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 10 C) THE SPIRIT OF THE C.I.T. APPEALS ORDER HAS NOT B EEN REFLECTED IN THE CONSEQUENTIAL ORDERS. 5) WE OBSERVED THAT A MISTAKE IN THE C.I.T. APPEALS ORDER WHEREIN THEY HAVE NARRATED THAT THE STAMP DUTY PAID WAS RS. 5,41,675 WHICH IS NOT CORRECT BUT THE EXACT AMOUNT IS RS. 6,37,250(5,41,675+95575). B) CROSS OBJECTIONS: THE AGRICULTURAL LAND MEASURING TO ACRES 50-39 GTS. HAS BEEN TRANSFERRED IN THE ASSESSMENT YEAR 2001-02 AND THER E IS NO INCOME TAX LIABILITY. THE TRANSFER IS COMPLETED SINCE THE POSSESSION HAS BEEN HANDED OVER. AS PER SEC. 247(V), THE TRANSACTION IS COMPLETED AN D CAPITAL GAIN ARISES IN THE YEAR IN. WHICH THE TRANSFER TOOK PLAC E LE.; IN THE ASSESSMENT YEAR 2001-02 AND THERE IS NO TAX LIABILI TY AS EVIDENT FROM THE ASSESSMENT ORDER SINCE THIS IS NOT A CAPIT AL ASSET FOR 2 REASONS: 1) THE LAND IS SITUATED AWAY ANY MUNICIPAL LIMITS A ND THE POPULATION IN THE VILLAGE IS LESS THAN 10,000. 2) THE TAXATION WAS UNDER THE ASSUMPTION THAT THE A PPELLANTS HAVE RECEIVED THE DEVELOPED PROPERTY WHICH EXPRESSI ON IS NOT CORRECT. THERE WAS NO DEVELOPMENT AT ALL FROM THE L ANDS. THE PERMISSION HAS BEEN OBTAINED IN THE YEAR 2005-0 6 AND THE POSSESSION HAS BEEN HANDED OVER AS AGRICULTURAL LAN D AND THERE WERE NO ALTERATIONS OR AMENDMENTS IN THE PATTA PASS BOOKS. THE G.O. IS ONLY TO FACILITATE TRANSFER OF LAND AND THE COMPLEXION OF LAND HAS NOT BEEN CHANGED. THIS WAS EVIDENT FROM TH E AFFIDAVIT SUBMITTED, LAST PARA OF PAGE 127 OF SUPPLEMENTARY P APER BOOK. THE EXEMPTION U/S 2(14) IS NOT A SUBJECT MATTER WIT H REFERENCE TO TRANSFER OF PROPERTY. IN OUR CASE, THE TRANSFER TOO K PLACE IN THE ASSESSMENT YEAR 2001-02 AND INCOME TAX RETURNS TO T HIS AFFECT HAVE BEEN FILED. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 11 FORTUNE CONSTRUCTION PVT. LTD. ALSO IS A PARTY TO T HIS TRANSACTION. EVEN IN THE SALE DEED, DEDUCTION HAS BEEN GIVEN FOR STAMP DUTY PAID FOR DEVELOPMENT CUM GPA. THE PROPERTY STIPULAT ED IN DEVELOPMENT CUM GPA IS THE SAME, AS THAT MENTIONED IN SALE DEED. SUMMARY: WE SUMMARISE AS FOLLOWS: A} EVEN ON WORKING ON CAPITAL GAIN AS PER CIT APPEA LS ORDER, THERE WILL NOT BE ANY CAPITAL GAIN BY TAKING ALL FA CTORS INTO CONSIDERATIONS. B} AS PER LAW, THE PROPERTY DOES NOT CONSTITUTE CAP ITAL ASSETS AS PER SEC. 2(14}(III) AND THE POSSESSION HAS BEEN GIV EN IN ASSESSMENT YEAR 2001-02, AND SEC. 247(V} COMES INTO PICTURE [I TR 260, PAGE 491]. THE CAPITAL GAIN ARISES FOR THE ASSESSMENT YE AR 2001-02 WHICH IS NIL. C} THE CONSIDERATION WAS RECEIVED AFTER 2 YEARS FRO M THE DATE OF TRANSFER AND ON THAT BASIS, THE SALE IS COMPLETED I N THE ASSESSMENT YEAR 2009-10. D) THE NATURE OF THE LAND REMAINS THE SAME AND THE LAND HAS BEEN HANDED OVER. WE COULD NOT TAKE UP AGRICULTURAL ACTI VITY FOR THE YEARS 200I-02, 2002-03, 2003-04, 2004-05, 2005-06. PRAYER: THE APPELLANTS PRAY THAT THE TAX PAYABLE BE DECLARE D NIL BY UPHOLDING OUR CROSS OBJECTION. WE PRAY THAT A FINAL OPPORTUNITY BE GRANTED BY POST ING THE APPEALS TO ANY CONVENIENT DATE PRIOR TO DISPOSAL ON HUMANITARIAN GROUNDS. 7. IN REPLY, TO THE SUBMISSIONS MADE BY THE ASSESSE E, THE REVENUE MADE THE FOLLOWING WRITTEN SUBMISSIONS BEFO RE US ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 12 (A) (I) THIS HAS NO RELEVANCE. ADMITTEDLY, THE ASS ESSEE WAS ENTITLED TO RIGHT OF 15% IN THE DEVELOPED RESID ENTIAL PROPERTY. IN OTHER WORDS, THE SALE CONSIDERATION O N 30-1- 2001 WAS THE RIGHT OF 15% OF TOTAL BUILT UP AREA IN THE RESIDENTIAL PROJECT TO BE DEVELOPED. (A)(2) YES. AS PER THE FIRST DEVELOPMENT AGREEMENT, THERE WAS NO CAPITAL GAIN, BECAUSE THE ASSET TRANSFERRED WAS AGRICULTURAL LAND. THE SALE OF RIGHT (EXTINGUISHM ENT OF RIGHT) OF 15% OF THE CONSTRUCTED RESIDENTIAL PROPER TY ON 20-4-2006 ATTRACTS CAPITAL GAINS WHICH IS CHARGEABL E TO TAX U/S 45(1) R.W.S. 2(14), 2(47) & 48 OF THE I T A CT. (A)(3)- NOT RELEVANT. WHEN THE ASSET ACQUIRED ON 30 .01.2001 WAS THE RIGHT IN THE ASSET TO BE DEVELOPED IN FUTUR E AND NOT THE LAND, THE SHAPE OF THE LAND HAS NO RELEVANCE. (A)(4)- THE DEPARTMENT IS AGITATING AGAINST THIS OB SERVATION OF THE CIT (A). (A)(4)(A)-THE EXPENDITURE OF RS.98 LAKHS SAID TO HA VE BEEN INCURRED BY THE ASSESSEES IN QUESTION HAS NO RELEVA NCE WHEN RIGHT OF 15% IN DEVELOPED RESIDENTIAL CONSTRUCTION WAS ACQUIRED ON 30.01.2001. AS PER THE DEVELOPMENT AGRE EMENT, THERE WAS NO SUCH LIABILITY AS ON 30.01.2001 NOR WA S THERE ANY FUTURE LIABILITY MENTIONED IN THE AGREEMENT. ANY LI ABILITY OR EXPENDITURE SPENT BY THE ASSESSEE SUBSEQUENT TO THE DATE OF DEVELOPMENT AGREEMENT I.E. 30.01.2001 IS OUTSIDE TH E PURVIEW OF THE ENTIRE TRANSACTION. WHEN THE RIGHT WAS ACQUI RED TOWARDS SALE CONSIDERATION, THE ASSET TRANSFERRED W AS ONLY AGRICULTURAL LAND THE TOTAL COST OF WHICH WAS RS 4, 94,875/ -, ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 13 THE COST OF DEVELOPMENT BEING RS.NIL IN THE HANDS O F ALL THE ASSESSEES. (A)(4)(B)-THERE IS NO DISPUTE WITH REGARD TO THE NA TURE OF LAND. THE ENTITLEMENT OF LAND FOR EXEMPTION U/S 548 OR 54F HAS NO RELEVANCE. WITH REGARD TO THESE EXEMPTIONS, THERE ARE NO GROUNDS RAISED IN THE APPEALS EITHER BY THE ASSE SSEES OR BY THE REVENUE AT ANY STAGE. (A)(4)(C)-IF THE ASSESSEE ARE AGGRIEVED BY THE CONS EQUENTIAL ORDERS PASSED, THEY ARE AT LIBERTY TO MOVE RECTIFIC ATION PETITIONS U/S 154 BEFORE THE ASSESSING OFFICER. 5. THE DEPARTMENT'S ARGUMENT IS THAT STAMP DUTY OF RS.5,41 ,6751 - OR RS.6,37,2501 - HAS NO RELEVANCE WHEN THE PROVISIONS OF SEE. 48 ARE PROPERLY ADHERED TO BY TH E A.O WHILE COMPUTING CAPITAL GAINS. THE INDEXATION HAS R IGHTLY BEEN DONE BY THE A.O WHILE COMPUTING THE CAPITAL GA INS ON SALE OF 15% OF RIGHTS IN THE DEVELOPED RESIDENTIAL CONSTRUCTION IN THE FINANCIAL YEAR 2006-07 RELEVANT TO THE ASST. YEAR 2007-08. B. CROSS OBJECTIONS: THERE IS NO DISPUTE ON THIS. BUT AT THIS POINT OF T IME WHAT MATTERS IS THE CONSIDERATION RECEIVED OR RECEIVABLE ? ADMITTEDLY, THE CONSIDERATION RECEIVABLE WAS THE RI GHT OF 15% IN THE DEVELOPED RESIDENTIAL CONSTRUCTION WHICH IS A CAPITAL ASSET AS DEFINED ULS 2(14) OF THE ACT. THER E IS NO CHANGE IN THE COST OF ACQUISITION OF THIS ASSET. IT IS NOTHING BUT THE COST OF AGRICULTURAL LAND I.E. RS.4, 94,8751 -. AT THIS POINT OF TIME, THERE IS NO COST OF IMPROVEMENT ALSO. THE A.O HAS NOT CHARGED ANY CAPITAL GAINS ON THE TRANSFER OF AGRICU LTURAL LAND ON 30.01.2001 WHEN THE SALE CONSIDERATION WAS EQUAL TO RIGHT OF 15% IN THE DEVELOPED RESIDENTIAL CONSTRUCTION. I T IS ONLY WHEN THIS RIGHT WAS TRANSFERRED (SOLD) TO M/S. KONC EPT NIRMAN PVT. LTD., ON 20.04.2006 I.E. DURING FIN. YE AR 2006-07 ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 14 RELEVANT TO THE ASST. YEAR UNDER CONSIDERATION FOR A SALE CONSIDERATION OF RS.8.5 CRORES, THE A.O BROUGHT TO TAX CAPITAL GAINS AFTER DUE INDEXATION VIDE PAGE 9 OF ASSESSMEN T ORDERS. 8. IN ITS REJOINDER TO THE REPLY OF REVENUE, THE A SSESSEE MADE THE FOLLOWING SUBMISSIONS: (A) (1). IT IS AN EVIDENT FROM THE SALE DEED THAT NO BUILT UP AREA HAS BEEN HANDED OVER TO THE APPELLANTS. THE RIGHT H AS BEEN EXTINGUISHED AND A CONSIDERATION OF RS. 8.50 CRORES WAS PAID ON ACCOUNT OF TRANSFER OF AGRICULTURAL LAND. (A)(2). IT WAS MENTIONED THAT SALE OF EXTINGUISHME NT OF RIGHT OF 15% ATTRACTS CAPITAL GAIN TAX WHICH IS NOT CORRECT. HERE THE RECORDS CLEARLY STATE THAT AGRICULTURAL LAND WAS TR ANSFERRED AND PASS BOOKS HAVE BEEN HANDED OVER. (A)(3) CAPITAL GAINS OCCURS ON A SPECIFIC VALUE OF CONSIDERATION AND IT SHOULD NOT BE IMAGINARY. (A)(4)(A) -THE RIGHT OF 15% AS NOT BEEN ACQUIRED A S EVIDENT FROM THE SALE DEED. THE LAND WAS IN THE SAME SHAPE START ING FROM 2000- 01 TO 2007-2008. THE EXPENDITURE RELATES TO LITIGAT ION AND OTHER MATTERS. (A)(4)(B). WE HAVE ASKED A DETAILED HEARING AND TH E CONSEQUENTIAL ORDER WAS PASSED WITHOUT GIVING AN OP PORTUNITY. (A)(4)(C). WE ARE QUESTIONING THE VERY CONCEPT OF ASSESSMENT. ASSUME FOR A WHILE THAT THE ASSESSING OFFICER HAS D ONE INDEXATION CORRECTLY, HE SHOULD GIVE WEIGHTAGE FOR SEC.247(5) WHICH STATES THE CAPITAL GAIN TAKES PLACE IN THE YEAR OF TRANSFER. T HE APPELLANTS ARE STRICTLY GOING BY STATUTE BOOK. CAPITAL GAIN IS CHA RGEABLE AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER T OOK PLACE. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 15 THE TRANSFER TOOK PLACE IN THE ASSESSMENT YEAR 2001 -02 AND THE RETURN HAS BEEN FILED TO THIS EFFECT. THE RIGHT OF 15% OF DEVELOPED PROPERTY IN FUTURE HAS TO BE EVALUATED AND THAT BEC OMES THE CONSIDERATION. SINCE THIS EVENT DID NOT TAKE PLACE, THE CONSIDERATION HAS BEEN ADOPTED AT RS.8.50 CRORES WH ICH IS THE SALE CONSIDERATION FOR TRANSFER OF LAND. THE PERMISSION FOR TOUCHING THE LAND WAS RECEIVED IN THE F.Y 2005-06. THE CAPIT AL GAIN WAS WORKED OUT ON THE BASIS OF IMAGINARY ASSET. B. CROSS OBJECTIONS : THE D.R MENTIONED THAT THE ASSET TRANSFERRED WAS 15 % OF DEVELOPED RESIDENTIAL CONSTRUCTION. IN SUMMARY, WE STATE THAT THE RIGHT OF 15% WAS NOT EXERCISED BY THE APPELLANT. THE AFFIDAVIT, LAND RECORDS AND OTHE R EVIDENCE JUSTIFY THE FACT THAT AGRICULTURAL LAND WAS TRANSFE RRED AND CONSIDERATION RECEIVED. ANY ASSET TO ATTRACT CAPITA L GAIN SHOULD BE SPECIFIC. FOR THE ABOVE REASONS AND AS PER PETITION DATED 01. 06.2012, WE PRAY THAT A FINAL OPPORTUNITY BE GRANTED BY POSTING THE APPEALS TO ANY CONVENIENT DATE PRIOR TO DISPOSAL TO MEET THE E NDS OF JUSTICE ON HUMANITARIAN GROUNDS. 9. WE HAVE HEARD RIVAL SUBMISSIONS OF THE PARTIES A ND PERUSED THE MATERIAL ON RECORD AND ALSO GONE THROUG H THE RESPECTIVE WRITTEN SUBMISSIONS FILED BEFORE US. AT THE OUTSET, WE MAKE IT CLEAR THAT THE ASSESSEES PRAYER FOR RE- HEARING OF THE MATTER CANNOT BE ACCEDED TO SINCE WE HAVE HEARD COUNSELS ON EITHER SIDE AT LENGTH AND ALSO EX HAUSTIVE WRITTEN SUBMISSIONS HAVE BEEN FILED BEFORE US. THE REFORE, IT IS FELT THAT THERE IS NO NECESSITY FOR REHEARING TH E MATTER. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 16 10. AS FOUND FROM RECORD, THE ASSESSEES ALONG WITH HIS FAMILY MEMBERS WERE OWNERS OF AC.50.39 GUNTAS OF AGRICULTURAL LAND. BY VIRTUE OF DEVELOPMENT AGREEM ENT ENTERED INTO BETWEEN M/S. FORTUNE CONSTRUCTIONS PVT . LTD., ON 31-1-2001 THE ASSESSEE AND HIS FAMILY MEMBERS GA VE POSSESSION OF THE LAND TO THE DEVELOPER. THIS TRAN SACTION COMES WITHIN THE MEANING OF TRANSFER AS ENVISAGED U /S 2(47)(V) OF THE ACT. AS PER THE TERMS OF THE DEVEL OPMENT AGREEMENT IN EXCHANGE OF TRANSFER OF LAND, THE ASSE SSEE AND HIS FAMILY MEMBERS WERE TO RECEIVE RIGHT, TITLE AND INTEREST OVER 15% OF THE DEVELOPED LAND. ON 20-4-2006, THE ASSESSEE AND HIS FAMILY MEMBERS ENTERED INTO ANOTHE R AGREEMENT WITH M/S. KONCEPT NIRMAN PVT. LIMITED., U NDER WHICH THE ASSESSEE AND HIS FAMILY MEMBERS TRANSFERR ED THEIR 15% INTEREST IN THE DEVELOPED LAND FOR A CONSIDERAT ION OF RS.8.50 CRORES. AS CAN BE SEEN FROM THE FACTS STAT ED ABOVE, THERE ARE TWO SEPARATE AND DISTINCT TRANSACTIONS BY THE ASSESSEE AND HIS FAMILY MEMBERS. THE FIRST ONE INV OLVING TRANSFER OF AC.50.39 GUNTAS OF AGRICULTURAL LAND THROUGH A DEVELOPMENT AGREEMENT/GPA BY WHICH THE ASSESSEE ACQUIRED A CAPITAL ASSET OF 15% RIGHT OVER THE D EVELOPED LAND. UNDER THE SECOND AGREEMENT ENTERED WITH M/S KONCEPT NIRMAN PVT. LIMITED. IN APRIL 2006, THE ASS ESSEE AND HIS FAMILY MEMBERS TRANSFERRED 15% INTEREST IN THE ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 17 DEVELOPED LAND FOR A CONSIDERATION OF RS.8.50 CRORE S. UNDER THE DEVELOPMENT AGREEMENT/GPA, THE ASSESSEE AND HIS FAMILY MEMBERS HAVE ACQUIRED RIGHT AND INTEREST ON 15% OF THE DEVELOPED LAND TOWARDS TRANSFER OF AC.50.39 GUN TAS OF LAND. THEREFORE, THE 15% INTEREST IN DEVELOPED LAN D IS A NEW ASSET ACQUIRED ON TRANSFERRING AC.50.39 GUNTAS OF LAND. WHAT THE ASSESSEE AND HIS FAMILY MEMBERS HAVE TRANS FERRED OR SOLD IN APRIL, 2006 IS THIS 15% INTEREST IN DEVE LOPED LAND FOR A CONSIDERATION OF RS.8.50 CRORES. 11. WHEN THE ASSESSING OFFICER HIMSELF HAS TREATED TWO AGREEMENTS ENTERED INTO BY THE ASSESSEE AS TWO DIST INCT AND SEPARATE TRANSACTIONS, HE WAS NOT CORRECT IN TAKING THE INDEXED COST OF ACQUISITION, THE PURCHASE VALUE OF THE LAND IN 1980 AND 1989. WHILE COMPUTING CAPITAL GAINS ARISI NG OUT OF TRANSFER OF 15% INTEREST IN DEVELOPED LAND TO M/S K ONCEPT NIRMAN PVT. LIMITED IN APRIL, 2006. IN OUR VIEW, T HE CIT (A) WAS RIGHT IN HOLDING THAT THE COST OF 15% OF THE RI GHT IN DEVELOPED LAND SHOULD BE TAKEN TO BE THE VALUE ON WHICH THE SRO HAS CALCULATED STAMP DUTY OF RS.5,41,675/- . WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDER PA SSED BY THE CIT (A) IN DIRECTING THE ASSESSING OFFICER TO R E-COMPUTE THE CAPITAL GAINS. THE ASSESSEE IN HIS WRITTEN SUB MISSIONS HAS SUBMITTED THAT ACTUAL STAMP DUTY PAID IS RS.6,3 7,250/-. THIS ASPECT CAN BE RE-EXAMINED AT THE TIME OF COMPU TATION ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 18 OF CAPITAL GAINS BY THE ASSESSING OFFICER. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS CONTENDED THAT THE AS SESSING OFFICER HAS NOT COMPLIED WITH THE DIRECTIONS OF THE CIT (A) WHILE WORKING OUT THE CAPITAL GAINS BY NOT CONSIDER ING THE EXPENDITURE INCURRED ON TRANSFER, ALONG WITH DEDUCT ION U/S 54B AND 54F OF THE ACT. IF THE DIRECTION OF THE CI T (A) HAS NOT BEEN COMPLIED WITH BY THE ASSESSING OFFICER IN THE CONSEQUENTIAL ORDER, THE SAME CAN BE RAISED BEFORE APPROPRIATE FORUM AND CANNOT BE A MATTER FOR CONSID ERATION BEFORE US. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 12. SINCE GROUNDS RAISED IN ALL THE APPEALS ARE IDENTICAL AND SIMILAR, IN VIEW OF OUR DECISION IN I TA NO.1099/HYD/2010, ALL OTHER APPEALS FILED BY THE R EVENUE ARE DISMISSED 13. SO FAR AS CROSS OBJECTIONS FILED BY THE ASSESS EE- RESPONDENTS ARE CONCERNED, SINCE GROUNDS RAISED BY THE ASSESSEE ARE IDENTICAL AND SIMILAR, FOR THE SAKE OF BREVITY, WE REPRODUCE HEREUNDER GROUNDS RAISED BY THE ASSESS EE IN C.O. NO.79/HYD/2010:- 1 . THE INTERPRETATION BY DCIT IS NOT IN ORDER. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 19 2. THE APPELLANTS WERE AGITATING RIGHT FROM BEGINNING THAT THE ASSET TRANSFERRED WAS NOT A CAPITAL ASSET AND ACCORDINGLY DOES NOT ATTRACT TAX. 3. THE CIT (A) HAS NOT DENIED THAT THE LAND TRANSFERRED FITS IN THE CATEGORY OF AGRICULTURAL LAND AS PER PROVISIONS OF SECTION 2(14) OF IT ACT. 4. ORIGINALLY, THERE WAS AN AGREEMENT AND LATER ON CANCELLED AND NEW AGREEMENT HAS BEEN MADE LAND REMAINING THE SAME, ULTIMATELY THE ASSET TRANSFERRED AS AGRICULTURAL LAND FOR WHICH CONSIDERATION HAS BEEN PAID. 5. EVEN WHILE COMPUTING THE CAPITAL GAINS EXPENDITURE OF TRANSFER HAS NOT BEEN CONSIDERED THE APPELLANT PRAY THAT THE ABOVE RELIEFS BE GRANTED AND THE ABOVE CROSS-OBJECTIONS BE CONSIDERED AND OBLIGE 14. WE HAVE HELD IN REVENUES APPEALS THAT THE ASSE SSEE AND HIS FAMILY MEMBERS HAVE ENTERED INTO TWO SEPARA TE TRANSACTIONS. THE LEARNED AR FOR THE ASSESSEE CONT ENDED THAT THE NATURE AND CHARACTER OF THE LAND TRANSFERR ED AT THE TIME OF ENTERING INTO THE DEVELOPMENT AGREEMENT RE MAIN THE SAME WHEN 15% RIGHT AND INTEREST IN THE DEVELOP ED LAND WAS TRANSFERRED TO M/S. KONCEPT NIRMAN PVT. LIM ITED IN THE SECOND AGREEMENT ENTERED IN APRIL, 2006. THE LEARNED ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 20 AR CONTENDED THAT THE LAND TRANSFERRED UNDER THE DEVELOPMENT AGREEMENT UNDER THE SALE DEED REMAINED THE SAME AS NO DEVELOPMENT ACTIVITY HAS BEEN CARRIED OU T. THE CONTENTION OF THE LEARNED AR FOR THE ASSESSEE IS NO T ACCEPTABLE DUE TO THE FOLLOWING REASONS. SO FAR AS TRANSFER OF LAND TO THE DEVELOPER UNDER DEVELOPMENT AGREEMENT/GPA IN 2001 IS CONCERNED, IT IS A TRANSFER FOR THE PURPOSE OF CAPITAL GAINS WITHIN T HE MEANING OF SECTION 2(47) OF THE ACT. HOWEVER, THE REVENUE HAS ACCEPTED THE FACT THAT THE LAND TRANSFERRED WAS AN AGRICULTURAL LAND AND THEREFORE IS NOT A CAPITAL AS SET. AS PER THE DEVELOPMENT AGREEMENT CUM GPA, IT HAS BEEN MENTIONED IN THE PREAMBLE THAT THE ASSESSEE AND HIS FAMILY MEMBERS BEING OWNERS OF THE LAND HAVE APPROACHED TH E DEVELOPER WITH AN INTENTION OF DEVELOPING A COLONY AND AS PER THE TERMS OF THE DEVELOPMENT AGREEMENT, THE DEV ELOPER PROPOSED TO EXECUTE PROJECT OF DEVELOPMENT BY GETTI NG THE AREAS LEVELLED AND OTHERWISE MADE SUITABLE BY LAY O UT SANCTIONED BY HUDA AND MAKING A RESIDENTIAL COLONY/APARTMENT/COMMERCIAL DEVELOPMENT. IT IS ALSO PROPOSED THAT PROJECT AREAS SHALL BE SUB- DIVIDED INTO SEVERAL HOUSING PLOTS OF VARIOUS SIZES AND THEREBY THE OWNERS OF THE LAND WILL COLLECTIVELY BE ENTITLED TO ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 21 15% OF THE SAID SALEABLE PLOTS TO BE SANCTIONED HUD A AND SUCH PLOTS SHALL BE CALLED AS OWNERS PLOTS. THUS, FROM DEFINITE CLAUSES OF AFORESAID DEVELOPMENT AGREEMENT , IT IS CLEAR THAT THE INTENTION OF THE OWNERS OF THE LAN D I.E., THE ASSESSEE AND HIS FAMILY MEMBERS WAS TO DEVELOP THE LAND INTO PLOTS OF DIFFERENT SIZES FOR THE PURPOSE OF DE VELOPING A RESIDENTIAL COLONY. UNDER THE SALE DEED EXECUTED WI TH M/S KONCEPT NIRMAN PVT. LIMITED ON 20-4-2006, THE ASSES SEE ALONG WITH HIS FAMILY MEMBERS HAS SOLD 15% INTEREST WHICH IS IN NATURE OF SALEABLE PLOTS AREAS FROM THE DEVEL OPED LAND FOR A CONSIDERATION OF RS.8.50 CRORES. THUS, IT IS CLEAR THAT UNDER THE DEVELOPMENT AGREEMENT, THE ASSESSEE HAS TRANSFERRED AGRICULTURAL LAND TO M/S FORTUNE CONSTR UCTIONS PVT. LIMITED AND ACQUIRED CAPITAL ASSET WHICH IS 15 % RIGHT AND INTEREST IN THE DEVELOPED LAND. THIS 15% RIGHT AND INTEREST IN THE DEVELOPED LAND WAS SOLD TO M/S. KON CEPT NIRMAN PVT. LIMITED AS PER THE SALE DEED DATED 24-2 -2006. THEREFORE, THE ASSET SOLD BY THE ASSESSEE TO M/S KONCEPT NIRMAN PVT. LIMITED IS NOT THE SAME WHICH W AS GIVEN TO THE DEVELOPER UNDER THE DEVELOPMENT AGREEM ENT. ONCE THE AGRICULTURAL LAND WAS TRANSFERRED TO THE D EVELOPER UNDER THE DEVELOPMENT AGREEMENT, IT LOST ITS CHARAC TER AS AGRICULTURAL LAND. ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 22 15. IT IS ALSO EVIDENT FROM THE MATERIALS ON RECORD THAT THE INTENTION OF THE PARTIES WAS NEVER TO CARRY ON ANY AGRICULTURAL ACTIVITY BUT TO DEVELOP THE LAND TO RESIDENTIAL/SALEABLE PLOTS. THE NATURE AND CHARACTE R OF THE LAND HAS ALSO BEEN CHANGED FROM AGRICULTURAL TO RES IDENTIAL BY THE ORDER PASSED BY THE HUDA IN ITS G.O. MS. NO. 810 DATED 21-9-2005 PRIOR TO THE SALE OF 15% RIGHT AND INTEREST TO M/S KONCEPT NIRMAN PVT. LIMITED IN APRIL, 2006. THAT APART THE ASSESSEE HIMSELF IN THE WRITTEN SUBMISSI ONS HAS SUBMITTED THAT NO AGRICULTURAL ACTIVITY HAS TAKEN PLACE FROM THE ASSESSMENT YEAR 2000-01 TO 2005-06. ON CONSIDE RATION OF THESE FACTS, IT CANNOT BE SAID THAT THE CAPITAL ASSET SOLD TO M/S. KONCEPT NIRMAN PVT. LIMITED IN APRIL, 2006 UNDER THE SALE DEED IS THE SAME AS THE LAND WHICH WAS GIV EN FOR DEVELOPMENT UNDER THE DEVELOPMENT AGREEMENT AND THEREFORE NOT CHARGEABLE TO CAPITAL GAINS TAX. APP LYING THE TESTS LAID DOWN BY THE HONBLE SUPREME COURT IN CAS E OF SMT. SAARIFABIBI MOHD. IBRAHIM & OTHERS VS. CIT REP ORTED IN 204 ITR 631, THE ASSESSEES CONTENTION THAT CHARACT ER OF THE LAND STILL REMAINS AGRICULTURAL CANNOT BE ACCEPTED. . 16. SO FAR AS GROUND NO. 5 RAISED IN CROSS OBJEC TION IS CONCERNED, IT IS SEEN FROM RECORDS THAT THE ASSESSE E HAS NOT RAISED THIS ISSUE AT THE TIME OF ASSESSMENT OR BEFO RE THE FIRST APPELLATE AUTHORITY. THEREFORE, THIS GROUND RAISED IN THE ITA NO. 1099 TO 1109 AND CO NOS. M. POCHAMMA, JEEDIMETLA AND OTHERS 23 CROSS OBJECTION CANNOT BE ENTERTAINED AT THIS STAGE AS IT REQUIRES INVESTIGATION INTO THE BASIC FACTS. 17. IN THE RESULT, ALL THE APPEALS BY THE REVENUE A S WELL AS CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSE D. ORDER WAS PRONOUNCED IN THE COURT ON 20-7-2012. SD/- SD/- ( CHANDRA POOJARI ) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/- 20 TH JULY,2012 COPY FORWARDED TO: 1. DCIT, CENTRAL CIRCLE - 2, 7 TH FLOOR, AAYAKAR BHAVAN, LB STADIUM ROAD, BASHEERBAGH, HYDERABAD. 2. ALL ASSESSEE - RESPONDENTS AS MENTIONED IN THE CAUSE - TITLE. 3. COMMISS IONER OF INCOME - TAX(APPEALS ) - I, HYDERABAD. 4. COMMISSIONER OF INCOME - TAX CONCERNED, HYDERABAD. 5 THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. JMR*