GOVINDRAO ADIK HUF, MUMBAI V. ITO 18(3)(2), MUMBAI

ITA 1263/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5500 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 10-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH LD
• Assessee Lawyers: Y P TRIVEDI LD
• Keywords: Capital asset; Opportunity of being heard; Capital receipt
• Section: 143(3); 56

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.1263/MUM/2016 ( / ASSESSMENT YEAR: 2003-04) GOVINDRAO ADIK (HUF) 1201, VAINGANGA SIR POCHKHANWALA ROAD WORLI, MUMBAI-400 030. / VS. INCOME TAX OFFICER - 18(3)(2) PIRAMAL CHAMBERS, PAREL MUMBAI-400 012. ! ./ ./PAN/GIR NO. AAAHG-5043-F ( !# /APPELLANT ) : ( $!# / RESPONDENT ) & ./ I.T.A. NO.3959/MUM/2018 ( / ASSESSMENT YEAR: 2003-04) SMT. ANURADHA ADIK 1201, VAINGANGA SIR POCHKHANWALA ROAD WORLI, MUMBAI-400 030. / VS. INCOME TAX OFFICER - 21(1)(1) PIRAMAL CHAMBERS, PAREL MUMBAI-400 012. ! ./ ./PAN/GIR NO. AADPA-3573-D ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : Y.P. TRIVEDI- LD. AR REVENUE BY : CHAUDHARY ARUN KUMAR SINGH - LD.DR / DATE OF HEARING : 12/12/2018 / DATE OF PRONOUNCEMENT : 05/02/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY TWO ASSESSEE FOR ASSESSMENT YEAR [AY] 2003-04 CONTEST SEPARATE ORDERS OF LD. COMMISSIONER OF INCOME-TAX 2 (APPEALS)-33, MUMBAI, [CIT(A)] ON IDENTICAL WORDED GROUNDS OF APPEAL. SINCE COMMON ISSUES ARE INVOLVED, WE DISPOSE-OFF TH E SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND B REVITY. FIRST, WE TAKE UP ITA NO.1263/MUM/2016 WHEREIN FOLLOWING GROU NDS HAVE BEEN RAISED: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEAR NED CIT(APPEALS)-33 ERRED IN CONFIRMING THE ORDER PASSED BY THE ITO U/S 143(3 ) AND TREATING THE AMOUNT RECEIVED AND SHOWN AS COMPENSATION FOR MESNE PROFIT S RS.1,78,96,181/- AS INCOME FROM OTHER SOURCES. 2. THAT THE LEARNED CIT(APPEALS)-33 SHOULD HAVE APP RECIATED THE FACT THAT THE 'MESNE PROFIT' WAS NOTHING BUT ADDITIONAL PRICE RECEIVED F OR STANDING TREES AND CROPS ON SALE OF AGRICULTURAL LAND AND HENCE WAS EXEMPT FROM INCO ME AND CAPITAL GAINS TAX. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID CIT(APPEALS)-33 ERRED IN NOT FOLLOWING THE DIRECTIONS GIVEN BY THE HON. ITAT DIR ECTING THE ITO TO LOOK AT THE WHOLE MATTER DE NOVO, INCLUDING CONSIDERING WHAT IS DESCR IBED AS MESNE PROFIT AS ONLY ADDITIONAL PRICE FOR SALE OF LAND. 4. THAT WITHOUT PREJUDICE AND ON THE FACTS AND CIRC UMSTANCES OF THE CASE THE CLT(APPEALS)-33 ERRED IN NOT CONSIDERING THE ASSESS EE'S PLEA IN TREATING THE COMPENSATION FOR FUTURE PROFITS FROM STANDING TREES AND CROPS (DESCRIBED AS MESNE PROFITS) AS AGRICULTURAL INCOME AND CONSEQUENTLY NO T TREATING IT AS EXEMPT FROM TAX, 5. THAT WITHOUT PREJUDICE AND ON THE FACTS AND CIRC UMSTANCES OF THE CASE THE CIT(APPEALS)-33 ERRED IN NOT TREATING THE COMPENSAT ION FOR FUTURE PROFITS FROM STANDING TREES AND CROPS (MESNE PROFITS) AS CAPITAL RECEIPT INSTEAD OF REVENUE RECEIPT NOT LIABLE TO TAX. 6. THAT ALTERNATIVELY AND WITHOUT PREJUDICE AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CLT(APPEALS)-33 ERRED IN NOT TREATING THE COMPENSATION FOR FUTURE PROFITS FROM STANDING TREES AND CROPS (TERMED AS MESNE PROF ITS) AS CAPITAL RECEIPT LIABLE TO CONCESSIONAL RATE OF TAX APPLICABLE TO LONG TERM CA PITAL GAINS.. THIS IS SECOND ROUND OF APPEAL SINCE THE MATTER IN THE FIRST ROUND, VIDE ITA NO.1922/MUM/2007 ORDER DATED 16/05/2011 , WAS REMITTED BACK TO THE FILE OF LD. AO WITH FOLLOWING DIRECTIONS: - 8. WE FIND FORCE IN THE ARGUMENT OF THE LD. COUNSEL . AS PER THE EVIDENCE FILED BEFORE US, WHICH IS IN THE FORM OF REVENUE RECORD, WE FIND THAT THE NATURE OF LAND IS DESCRIBED AS AGRICULTURAL LAND. WE, FURTHER FIND THAT ON THE 7/12 EXTRACT OF THE SAID LAND, NOTINGS IN RESPECT OF THE TREE PL ANTATIONS ARE ALSO MADE. AS PER THE MOU, THE ASSESSEE HUF AND THE TRUST AND MES NE PROFIT OR COMPENSATION FOR THE LOSS OF THE AGRICULTURAL INCOM E IN FUTURE. WE FIND THAT BOTH THE AUTHORITIES HAVE NOT PROPERLY EXAMINED THE ISSUE NOR THEY HAVE CONSIDERED THE REVENUE RECORD OF THE ASSESSEE. THE LD. COUNSEL HAS NO OBJECTION FOR SENDING THE ENTIRE MATTER BACK TO THE FILE OF A.O. TO DECIDE THE SAME DE NOVO. IN OUR OPINION, BOTH THE AUTHORITIES BELOW HAVE NOT ADJUDICATED BOTH THE ISSUES BY DISCARDING THE EVIDENCE IN THE F ORM OF THE REVENUE RECORD FILED BY THE ASSESSEE. WE, THEREFORE, RESTORE ENTIR E MATTER BACK TO THE FILE OF A.O. FOR FRESH ADJUDICATION DE NOVO. SO FAR AS THE ADDITIONAL GROUNDS ARE CONCERNED, THE ASSESSEE IS AT LIBERTY TO RAISE THE SAME BEFORE THE A.O. THE 3 A.O. SHOULD CONSIDER THE REVENUE RECORD OF THE ASSE SSEE AND OTHER EVIDENCE, WHICH WOULD BE FILED BEFORE HIM AND DECIDE BOTH THE ISSUES AFRESH. NEEDLESS TO SAY THE A.O. SHOULD GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, BOTH THE GROUNDS ARE SET ASI DE. 2.1 THE BRIEF BACKGROUND OF THE MATTER IS THAT THE ASSESSEE HUF SOLD CERTAIN PLOTS OF LAND AT HATNE WHICH WAS CLAIMED TO BE AGRICULTURAL LAND, BEING EXEMPT NOT BEING A CAPITAL ASSET UNDER LAW. T HE PLOTS HAD TOTAL APPROX. AREA OF 51 ACRES AND 13 GUNTHAS WHICH WAS STATED TO BE SOLD TO A TRUST NAMELY UNIVERSAL EDUCATION ACADEMY VIDE MEMORANDUM OF UNDERSTANDING [MOU] DATED 16/10/2002 FOR SALE CONSIDERATION OF RS.250 LACS. THE SAID TRUST WAS CONSTITUTED BY TWO MEMBERS OF THE HUF NAMELY MR. GOVINDRAM ADIK & ANJALI ADIK AND FOUR OTHER PERSONS. OUT OF SALE CONSIDERATION OF RS.250 LACS, AN AMOUNT OF RS.23.75 LACS WAS TO BE CONSIDERED TOWARDS PLOT OF LAND AND THE BALANCE AMO UNT OF RS.226.25 LACS WAS STATED TO BE COMPENSATION FOR MESNE PROFITS FROM THE PLANTATION TREES ETC. THE ASSESSEE HUFS SHARE IN S ALE OF LAND WAS RS.10.12 LACS WHEREAS ITS SHARE IN PLANTATION TREES ETC. WAS RS.178.96 LACS. AS PER THE TERMS, THE TRUST WAS TO USE THE LA ND FOR CONSTRUCTION OF A RESIDENTIAL SCHOOL. IN THE RETURN OF INCOME, THE PROFIT ON SALE OF LAND WAS CLAIMED TO BE EXEMPT WHEREAS THE MESNE PROFITS FROM PLANATION OF TREES WERE REFLECTED AS AGRICULTURAL INCOME . 2.2 IN THE SET-ASIDE PROCEEDINGS PURSUANT TO THE DI RECTIONS OF THE TRIBUNAL, THE ASSESSEE SUBMITTED REVENUE RECORD 7/12 EXTRACTS TO SUPPORT THE FACT THAT THE STATED LAND WAS AGRICULTURAL LAND IN NATURE AND THEREFORE, THE RESULTANT GAINS WERE EXEMPT. THE SAI D PLEA WAS ACCEPTED BY LD. AO AND THE SAME IS NOT THE SUBJECT MATTER OF DISPUTE BEFORE US. 2.3 THE NET CONSIDERATION OF RS.178.96 LACS STATED TO BE RECEIVED AS MESNE PROFIT ON ACCOUNT OF PLANTATION TREES WAS CLAIMED TO BE 4 AGRICULTURAL INCOME IN NATURE. HOWEVER, THE ASSESSE E, VIDE SUBMISSIONS DATED 26/07/2012, CHANGING HIS STAND, SUBMITTED THA T THE SAID SUM WAS ONLY AN ADDITIONAL PRICE RECEIVED ON SALE OF LAND A ND THE ENTIRE TRANSACTION SHOULD BE VIEWED AS A WHOLE TO DETERMIN E ITS TAXABILITY. HOWEVER, NOT CONVINCED, LD. AO REJECTED THE SAME IN VIEW OF THE FACT THAT AS PER MOU / SALE AGREEMENT, THE STATED COMPENSATION WAS IN THE NATURE OF MESNE PROFITS ONLY. THE ASSESSEES NEW ST AND, IN THE OPINION OF LD. AO, WAS MERE AFTER THOUGHT TO DEFRAUD THE REVEN UE. THE LD. AO OPINED THAT THE SAID COMPENSATION COULD NOT BE TERM ED AS AGRICULTURAL INCOME SINCE THE ASSESSEE DID NOT CARRY OUT ANY SIN GLE ACTIVITY WHICH COULD PROVE THE COMPENSATION TO BE AN AGRICULTURAL INCOME. RELIANCE WAS PLACED ON THE JUDGMENT OF HONBLE APEX COURT RE NDERED IN CIT VS. VS RAJA BENOY KUMAR SAHAS ROY [32 ITT 466]. TH LD. AO ALSO NOTED THAT THE SAID COMPENSATION WAS TOWARDS SALE OF AGRI CULTURAL PRODUCE IN FUTURE IN CONTRAST TO THE FACT THAT THERE WILL BE N O LAND LEFT WITH THE ASSESSEE TO CARRY OUT ANY AGRICULTURAL ACTIVITY AND THEREFORE, THE COMPENSATION COULD NOT BE TERMED AS AGRICULTURAL IN COME. FURTHER, IN THE SECOND PART OF 7/12 EXTRACT ISSUED BY REVENUE AUTHO RITIES AS ON 20/11/2002, THE NAME OF THE CROPS WAS MENTIONED AS KHARIP-BHAT AND GAWAT WHICH LED THE LD. AO TO CONCLUDE THAT ON THE DATE OF SALE, THE ASSESSEE WAS DERIVING AGRICULTURAL INCOME BY GROWIN G ONLY RICE AND GRASS ON THE STATED LAND AND THEREFORE, IT COULD NO T FETCH SUCH A HUGE COMPENSATION FOR LOSS OF REVENUE AS CLAIMED BY THE ASSESSEE. FINALLY, THE AMOUNT OF RS.178.96 LACS WAS TAXED U/S 56 AS INCOME FROM OTHER SOURCES. 3.1 AGGRIEVED, THE ASSESSEE AGITATED THE SAME WITHO UT ANY SUCCESS BEFORE FIRST APPELLATE AUTHORITY VIDE IMPUGNED ORDE R DATED 13/11/2015 5 WHEREIN LD. CIT(A), AFTER PERUSAL OF MOU / SALE AGREEMENT CAME TO A CONCLUSION THAT LAND WAS SOLD ALONG WITH ALL TREES AND CROPS STANDING THEREIN FOR TOTAL CONSIDERATION OF RS.23.75 LACS ON LY AND THERE WAS NO GROUND FOR THE ASSESSEE TO CLAIM THAT RECEIPT OF RS 178.96 LACS WAS, IN ANY MANNER, CONNECTED WITH SALE OF TREES AND PLANTA TIONS. 3.2 THE LD. CIT(A) ALSO DOUBTED THE AUTHENTICITY OF LAST PARAGRAPH OF PAGE-3 OF THE SALE DEED SINCE IT WAS HAND WRITTEN AND NOT TYPED AS OTHER PART OF THE SALE DEED AND THEREFORE, CAME TO CONCLU SION THAT IT WAS ONLY AN AFTER-THOUGHT AND INSERTED IN THE DEED LATER ON. THE RELEVANT OBSERVATIONS OF LD. CIT(A), IN THIS REGARD, COULD B E EXTRACTED, IN THE FOLLOWING MANNER: - AS PER THE RULE, IF ANY MODIFICATION IS REQUIRED IN THE REGISTERED SALE DEED, IT IS DONE BY REGISTERING A SEPARATE SUPPLEMENTARY SALE DEED, NOT BY SUBSTITUTING THROUGH A HAND WRITTEN PARAGRAPH IN THE ORIGINAL SALE DEED. I N FACT, LAW DOES NOT PERMIT ANY MANIPULATION IN AN ALREADY REGISTERED SALE DEED. SU CH AN ACT OF MANIPULATION WILL MAKE THE SALE DEED INVALID, PARTICULARLY WHEN THERE ARE FINANCIAL IMPLICATIONS INVOLVED IN IT. IT APPEARS THAT THE APPELLANT-HAS C LEVERLY HIDDEN THE AMOUNT OF PAYMENT OF RS. 1,78,96,181/- LATER CLAIMED AS 'MESN E PROFIT' IN THE SAID HANDWRITTEN NOTE, AS REPRODUCED IN THE NEXT PARAGRAPH, TO AVOID ANY STAMP DUTY PAYMENT ON IT. THIS FURTHER AMPLIFY THAT THE HAND WRITTEN NOTING W AS NOT ORIGINALLY THE PART OF THE REGISTERED SALE DEED AND SUBSTITUTED AS AN AFTERTHO UGHT AND TO MISGUIDE THE REVENUE AUTHORITIES. WITH THE AFORESAID FACTS, IT IS VERY C LEAR THAT THE PAYMENT OF RS. 1,78,96,181/- CANNOT BE CORRELATED WITH THE PIECE O F AGRICULTURE LAND OR THE TREES & CROPS STANDING ON THE AGRICULTURE LAND WHICH WERE S OLD FOR A COMPOSIT FIGURE OF RS. 23,75,000/- ONLY. AS THE PAYMENT OF RS. 1,78,96,181 7- IS NOT RELATED WITH THE SALE CONSIDERATION FOR AGRICULTURE LAND OR THE TREES & C ROPS STANDING THEREIN, SUCH RECEIPTS CAN ONLY PARTAKE THE CHARACTER OF 'INCOME FROM OTHE R SOURCES' TO BE TAXED U/S 56 OF THE I.T, ACT. 16. THE AFORESAID PAYMENT OF RS. 1,78,96,181/- REQU IRES FURTHER PROBING TO UNDERSTAND ITS TRUE CHARACTER. THE HANDWRITTEN PORT ION ON THE SALE DEED (AS MADE AVAILABLE IN THE ENGLISH TRANSLATION) IS REPRODUCED AS UNDER- 'THERE ARE THOUSANDS OF FRUIT BEARING TREES INCLUDI NG THAT OF MANGO, CHICKU, COCONUT, SOPARI, BAMBOO, SAGWAM. THESE TREES ARE 10 TO 15 YE ARS OLD AND HAVE A LIFE SPAN OF 50 TO 60 YEARS. IN CONSIDERATION FOR THE INCOME ARI SING THEREFROM IN FUTURE, YOU HAVE AGREED TO PAY US INDEPENDENTLY AS PER THE MEMORANDU M OF UNDERSTANDING (MOU) BETWEEN US. THE TERMS OF THE MOU SHALL BE BINDING O N THE PURCHASERS AND THIS SALE DEED IS EXECUTED IN CONSONANCE OF SAID MOU.' THUS THE APPELLANT HAS CLAIMED TO RECEIVE THE HUGE AMOUNT OF RS. 1,78,96,181/- AS PER A MOU INDEPENDENT OF THE SALE DEED. THE AMOUNT SHOWN TO BE RECEIVED IS A HYPOTHETICAL INCOME ARISING IN FUTURE FROM FRUIT BE ARING TREES, WHICH WERE ALREADY 6 SOLD ALONG WITH THE TREES FOR A SUM OF RS. 23,75,00 0/-. IT IS ALSO OBSERVED THAT IN THE FIRST ROUND OF APPEAL, THE APPELLANT HAS TAKEN THE STAND THAT RS.1,78,96,181/- REPRESENTS COMPENSATION RECEIVED FOR FUTURE PROFIT FROM PLANTATION TREES. HOWEVER, IN THE SECOND ROUND, THE STAND HAS BEEN CHANGED. NOW I T IS CLAIMED TO BE THE ADDITIONAL PRICE OR PREMIUM WHICH THE AGRICULTURAL LAND COMMANDED AND RECEIVED BY THE ASSESSEE DUE TO STANDING TREES THEREON AND DUE TO OTHER FACTORS. IN VIEW OF THE PREVAILING FACTS ON RECORD, THE CHANGE IN STAND BY THE APPELLANT IS REJECTED. IF IT WAS THE ADDITIONAL PRICE OR PREMIUM PAID FOR AGRICULTUR E LAND, THE SAME SHOULD HAVE CLEARLY MENTIONED AS SALE CONSIDERATION IN THE DEED FOR SALE AND STAMP DUTY PAID ON IT. THE FACT THAT NO STAMP DUTY WAS PAID ON RS.1,78 ,96,181/-, THE THEORY OF ADDITIONAL PRICE OR PREMIUM HAS NO RELEVANCE. NOW COMING TO TH E ORIGINAL STAND OF THE APPELLANT, I FIND THAT THE COMPENSATION FOR THE HYP OTHETICAL INCOME ARISING IN FUTURE FROM FRUIT BEARING TREES, IS JUST AN AFTERTHOUGHT T O GIVE IT THE SEMBLANCE OF GENUINESS. AS DISCUSSED IN THE PRECEDING PARAGRAPHS, NO SOONER THAN THE SALE CONSIDERATION OF RS.23,75,000/- WAS RECEIVED AND WITH SIGNING OF THE REGISTERED SALE DEED, THE APPELLATE NOT ONLY LOOSES THE RIGHT AND RESPONSIBIL ITIES OVER THE AGRICULTURE LAND AND ANY CROP OR TREE STANDING ON IT BUT ANY BENEFIT ARI SING OUT OF IT IN FUTURE. IN SUCH A SITUATION, WHERE IS THE QUESTION OF RECEIVING ANY C OMPENSATION OR REIMBURSEMENT FOR FUTURE INCOME ARISING OUT OF FRUIT BEARING TREES. T HIS ASPECT BECOMES MORE GLARING LOOKING TO THE FACT THAT THIS CLAUSE OF COMPENSATIO N WAS INSERTED THROUGH HANDWRITING AFTER THE EXECUTION OF THE SALE DEED, AS SUCCESSFUL LY DISCUSSED IN THE PRECEDING PARAGRAPH. 17. THE CLAIM OF THE APPELLANT CAN ALSO BE LOOKED F ROM THE ANGLE AS TO WHETHER THE APPARENT CAN BE CONSIDERED AS REAL. AS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS DURGA PRASAD MORE 82 ITR 540, TH E APPARENT MUST BE CONSIDERED AS REAL ONLY IF IT IS SHOWN THAT THERE A RE REASONS TO BELIEVE THAT THE APPARENT IS NOT REAL AND THAT TOO TAXING AUTHORITIE S ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY A ND THE MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILIT Y. FOR THIS PROPOSITION, I DRAW SUPPORT FROM THE DECISION OF THE HON'BLE SUPREME CO URT IN THE CASE OF SUMATI DAYAL VS CIT 214 ITR 801 WHEREIN THE SUPREME COURT HAS HE LD DISMISSING THE APPEAL, THAT THE SETTLEMENT COMMISS ION AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES AND APPLYING THE TEST OF HUMAN PROBABILITIES HAD RIGHTLY CONCLUDED THAT THE APPELLANT'S CLAIM ABOUT BEING HE R WINNING FROM RACES WAS NOT GENUINE.' FINALLY RELYING UPON CERTAIN JUDICIAL PRONOUNCEMENT S, THE STAND OF LD. AO WAS CONFIRMED AGAINST WHICH THE ASSESSEE IS IN FURT HER APPEAL BEFORE US. 4. THE LD. SR. COUNSEL FOR ASSESSEE [AR], SHRI Y.P.TRIVEDI, PLACING ON RECORD A CERTIFIED COPY OF THE SALE DEED, SUBMITTED THAT THE ADDITIONAL COMPENSATION WAS NOTHING BUT ADDITIONAL COMPENSATIO N TOWARDS SALE OF LAND AND NOTHING ELSE. IT WAS PLEADED THAT WHOLE TR ANSACTIONS SHOULD BE VIEWED AS A WHOLE AND THE CONSIDERATION, WHATEVER R ECEIVED, WAS TOWARDS TRANSFER OF LAND ONLY WHICH WAS NOT A CAPIT AL ASSET FOR THE 7 PURPOSE OF CAPITAL GAINS. PER CONTRA , LD. DR SUBMITTED THAT THE CONCLUSION DRAWN BY FIRST APPELLATE AUTHORITY WERE JUSTIFIED KEEPING IN VIEW THE DOCUMENTARY EVIDENCES. 5.1 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL ON RECORD. THE BASIC FACTS ARE NO T UNDER DISPUTE. IT IS NOTED THAT THE LAND UNDER QUESTION WAS SOLD BY THE ASSESSEE TO A TRUST WHICH WAS CONSTITUTED BY THE ASSESSEE, OTHER CO-OWN ER AND FOUR OTHER PERSONS. DESPITE THIS FACT, THE ASSESSEE IS UNABLE TO CLEARLY POINT OUT AS TO HOW AND FOR WHAT PURPOSE THE SALE CONSIDERATION WAS PASSED BETWEEN THE ASSESSEE AND THE TRUST. IN THE RETURN OF INCOME , THE SAID CONSIDERATION, IN CONSONANCE WITH SALE DOCUMENTS / MOU, WAS BIFURCATED INTO CAPITAL GAINS RESULTING FROM SALE O F LAND AND AGRICULTURAL INCOME RESULTING FROM SALE OF STANDING CROPS / FUTU RE POTENTIAL OF THE CROPS. AT THE SAME TIME, THE LD. AO RECORD A FACT T HAT THE SOLD LAND WAS TO BE USED BY THE TRUST TO CONSTRUCT A RESIDENTIAL SCHOOL. THESE FACTS ARE CONTRADICTORY TO EACH OTHER. 5.2 IN THE SET-ASIDE PROCEEDINGS, THE ASSESSEE CHAN GED ITS STAND BY SUBMITTING THAT THE ADDITIONAL COMPENSATION WAS NOT HING BUT FURTHER COMPENSATION TOWARDS SALE OF LAND. THE LD. AR HAS A LSO TAKEN THE SAME PLEA BY SUBMITTING THAT THE BIFURCATION WAS DONE OS TENSIBLY ONLY TO AVOID THE STAMP DUTY ON SALE OF LAND. IF THE PLEA OF LD. AR WAS TO BE ACCEPTED, THEN WHOLE OF CAPITAL GAINS ARISING FROM THE TRANSA CTION WOULD BECOME EXEMPT SINCE THEY ARE ARISING FROM AGRICULTURAL LAN D WHICH IS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14). IT IS UN DISPUTED FACT THAT THE LAND UNDER QUESTION WAS AGRICULTURAL LAND WHICH IS DULY EVIDENCED BY REVENUE 7/12 EXTRACTS SUBMITTED BEFORE LD. AO. IT IS FURTHER FORTIFIED B Y THE FACT THAT THE SAID LAND WAS CONVERTED FROM AGRI CULTURAL TO NON- 8 AGRICULTURAL VIDE ORDER DATED 09/06/2003 ISSUED BY TEHSILDAR, VIKRAMGAD WHICH IS MUCH AFTER THE DATE OF TRANSFER BEING 21/1 1/2002. HOWEVER, ON THE CONTRARY, IF THE SAID PLEA WAS TO BE REJECTED, THEN THE ONLY QUESTION THAT SURVIVES FOR CONSIDERATION IS THAT WHETHER THO SE RECEIPTS COULD BE SAID TO BE AGRICULTURAL INCOME IN NATURE OR OTHER I NCOME ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES AS DONE BY LOWER AUTHORITIES. 5.3 IT IS ALSO NOTED THAT THE ASSESSEE REFLECTED AG RICULTURAL INCOME OF RS.6.85 LACS DURING IMPUGNED AY WHICH WAS STATED TO BE DERIVED FROM AGRICULTURAL PRODUCE FROM THE SAID LAND. THIS INCOM E IS IN LINE WITH AGRICULTURAL INCOME OF RS.9.30 LACS SHOWN IN AY 200 2-03 AND RS.6.69 LACS SHOWN IN AY 2000-01. IN VIEW OF THIS FACT, A R EASONABLE BELIEF COULD HAVE BEEN FORMED THAT WHATEVER CROP / TREES WERE ST ANDING ON THE SAID LAND WERE ALREADY ACCOUNTED / SOLD FOR BY THE ASSES SEE DURING IMPUGNED AY AND THEREFORE, NO FURTHER INCOME COULD BE ATTRIB UTED ON THIS ACCOUNT. 5.4 THE ASSESSEE HAS PLACED ON RECORD CERTIFIED COP Y OF SALE DEED DATED 21/11/2002, THE AUTHENTICITY OF WHICH WAS DOU BTED BY LD. FIRST APPELLATE AUTHORITY. THE SAID DEED IS STATED TO BE CERTIFIED BY SUB REGISTRAR, DAHANU, DISTT. PALGHAR . THE COPY OF THE SAME WAS NOT AVAILABLE WITH FIRST APPELLATE AUTHORITY. THE TRANS LATED COPY OF THE SAME HAS ALSO BEEN PLACED ON RECORD. HOWEVER, WE FIND TH AT LAST PARA OF PAGE- 3 OF THE TRANSLATED VERSION AS PRODUCED BEFORE US O N PAGE NUMBER-38 OF THE PAPER-BOOK DIFFERS FROM LAST PARA AS REPRODUCED BY LD. CIT(A) IN THE IMPUGNED ORDER. 5.5 CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTA NCES AND IN THE LIGHT OF OUR ABOVE OBSERVATIONS, KEEPING ALL THE ISSUES O PEN, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF FIRST APPELL ATE AUTHORITY TO RE- CONSIDER THE SAME INCLUDING CERTIFIED COPY OF THE S ALE DEED AS PRODUCED 9 BEFORE US AND RE-ADJUDICATE THE MATTER AFTER AFFORD ING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS E. ITA NO. 3959/MUM/2018 : ANURADHA ADIK 7. THE CAPTIONED ASSESSEE IS OTHER CO-OWNER OF THE LAND AND SIMILARLY ASSESSED U/S 143(3) READ WITH SECTION 254 ON 01/03/2013 WHEREIN AN AMOUNT OF RS.37.67 LACS, BEING ADDITIONAL COMPENSAT ION, HAS BEEN ASSESSED AS INCOME FROM OTHER SOURCES. THE SAME, UPON CONFIRMATION BY FIRST APPELLATE AUTHORITY, IN SIMILAR MANNER, IS UNDER APPEAL BEFORE US. FACTS AND CIRCUMSTANCES BEING PARI-MATERIA THE SAME, THE ISSUE STAND RESTORED BACK TO THE FILE OF LD. CIT(A) ON SIMILAR LINES. 8. RESULTANTLY, BOTH THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH FEBRUARY, 2019. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :05.02.2019 SR.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,- & . , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.