RAVINDRA N. CHIMURKAR, Nagpur V. ACIT-CIRCLE-6, Nagpur

ITA 253/NAG/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3237 (ITAT-NAGPUR)
• Duration Of Justice: 4 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 23-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2014
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Capital asset; Business income; Opportunity of being heard; Bonafide belief; Additional evidence; Cost of acquisition; Competent authority; Set aside
• Section: 143(3); 54F; 12

Judgement Text

1 ITA NO.253/NAG/2014. IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER.. I.T.A.NO. 253/NAG/2014 ASSESSMENT YEAR : 2009 - 10. RAVINDRA N. CHIMURKAR, ASSTT. COMMISSIONER OF INCOME - TAX , NAGPUR. VS. CIRCLE - 6, NAGPUR. APPELLANT. RESPONDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 29 - 03 - 2017. DATE OF PRONOUNCEMENT : 3 R D A P R I L MARCH , 2017. O R D E R. PER SHAMIM YAHYA, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - II, NAGPUR DATED 04 - 02 - 2014 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. THE GROUNDS OF A PPEAL READ AS UNDER : 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE GOT CERTAIN SHARE IN LAND BEARING KH. NO. 103 BY VIRTUE OF LEGAL AND DULY IMPLEMENTED FAMILY SETTLEMENT AMONGST THE JOINT OWNERS OF FAMILY VIDE FAMILY SETTLEMENTS DATED 21 - 02 - 2007 & 15 - 03 - 2007 AND THAT THERE WAS NO TRANSFER INVOLVED ON RECEIPT OF A SHARE IN JOINT LAND BY ASSESSEE ON FAMILY SETTLEMENT. 2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN HOL DING THAT THE FAMILY SETTLEMENT EFFECTED BETWEEN THE FAMILY MEMBERS, WHO JOINTLY OWNED THE ONLY PIECE OF LAND, WAS A TAX AVOIDANCE MEASURE BECAUSE OF UNEQUAL DISTRIBUTION OF SHARES IN LAND AMONGST THE JOINT OWNERS. 3 . ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) ERRED IN ARRIVING AT THE CONCLUSION THAT THE ASSESSEE HAD RECEIVED A TOTAL CONSIDERATION OF RS.362.00 LACS DURING A.Y. 2009 - 10 FROM TRANSFER OF HIS SHARE IN JOINTLY OWNED LAND OUT OF KH. NO. 103, MOUZA : NARSALA, TAHSIL & DIST. NAGPU R, AS AGAINST THE ACTUAL NET CONSIDERATION OF RS.102.00 LACS. 4 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE INCOME FROM THE SALE OF LAND, WHICH WAS HELD JOINTLY AS CAPITAL ASSET, WAS A BUSINESS PROFIT FOR THE A.Y. 2009 - 10 AND NOT THE LONG TERM CAPIT A L GAINS, ONLY BECAUSE THE ASSESSEE WAS ENGAGED IN RE A L ESTATE BUSINESS. 2 ITA NO.253/NAG/2014. 2. THE LEARNED COUNSEL OF THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS AS UNDER THE ASSESSEE RESPECTFULLY BEGS TO SUBMIT AS UNDER : 1. IN THE CASE OF ASSESSEE REGULAR ASSESSMENT HAS BEEN FRAMED UNDER SECTION 143(3) OF I.T. ACT, 1961. THE ASSESSEE HAS PREFERRED APPEAL IN RESPECT TO ORDER PASSED BY A.O. BEFORE HONBLE CIT(APPEALS) AND IN GROUND NOS. 3 AND 4 ASSESSEE HAS CONTESTED THE DISALLOWANCE S OF DEDUCTION UNDER SECTION 54F OF I.T. ACT, 1961 AT R.52C,88,320/ - AND RS.50,00,000/ - UNDER SEC TION 54EC OF I.T. ACT, 1961. THE HONBLE CIT(A) HAS DISCUSSED THE SUBMISSION MADE IN DETAIL AND HAS DISMISSED GROUNDS AS REGARD TO DISALLOWANCES MADE BY A .O. UNDER SECTION 54F AND 54EC OF I.T. ACT, 1961 AS CONSEQUENCE OF HIS DECISION ON GROUND NOS. 1 AND 2 THAT SURPLUS ON SALE OF LAND IS LIABLE TO BE ASSESSED AS BUSINESS INCOME. THE ASSESSEE PREFERRED APPEAL BEFORE HONBLE ITAT, NAGPUR BENCH, NAGPUR AND IN MEM ORANDUM OF APPEAL THOUGH ASSESSEE HAS RAISED FOUR GROUNDS OF APPEAL, DUE TO INADVERTENT MISTAKE OF COUNSEL OF ASSESSEE, SPECIFIC GROUND IN RESPECT OF NON ALLOWANCES OF CLAIM U/S 54F AND 54EC OF I.T. ACT, 1961 HA REMAINED TO BE TAKEN. 2. IN TH E ABOVE CIRCUM STANCES, ASSESSEE REQUESTS THAT THE FOLLOWING ADDITIONAL GROUNDS WHICH ARISES FROM THE ORDER OF HONBLE CIT(A) BE CONSIDERED FOR ADJUDICATION OF APPEAL OF ASSESSEE. 1) THE LD. A.O. ERRED IN NOT GRANTING DEDUCTION AT RS.52,88,320/ - UNDER SECTION 54F OF I.T . ACT, 1961 AND HONBLE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. 2) THE LD. A.O. ERRED IN NOT GRANTING DEDUCTION AT RS.50,00,000/ - UNDER SECTION 54EC OF I.T. ACT, 1961 AND HONBLE CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. 3. IT IS RESPECTFULLY SUBMITTED THAT DISPOSAL OF ABOVE GROUND DOES NOT REQUIRE EXAMINATION OF ANY NEW FACTS AND CAN BE DISPOSED OFF ON THE BASIS OF MATERIAL AND EVIDENCE ON RECORD. 3. FURTHER LEARNED COUNSEL OF THE ASSESSEE HAS FILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF ITAT RULES AS UNDER : THE ASSESSEE RESPECTFULLY BEGS TO SUBMIT AS UNDER : 1. THE ASSESSEE HAS FILED APPEAL BEING ITA NO . 253/NAG/2014 IN WHICH ASSESSEE HAS TAKEN ADDITIONAL GROUND NO. 2 IN RESPECT TO CLAIM OF ASSESSEE U/S 54EC OF I . T . ACT 1961. 3 ITA NO.253/NAG/2014. 2 . THE ASSESSEE HAS MADE INVESTMENT OF RS . 50 LAKHS BY CHEQUE DRAWN IN FAVOUR OF N.H . AUTHORITY OF INDIA IN ORDER TO CLAIM DEDUCTION UNDER SECTI ON 54EC OF I . T . ACT 1961 . THE SALE DEED OF ASSESSEE HAS BEEN EXECUTED ON 07/07/2008 AND INVESTMENT IN BOND WAS TO BE MADE WITHIN SIX MONTHS FROM THE DATE OF TRANSFER TO AVAIL THE EXEMPTION U/S 54EC OF I . T . ACT 1961. THE ASSESSEE HAD GIVEN CHEQUE OF RS. 50 LAKHS DATED 03/01/2009 DRAWN IN FAVOUR OF N . H . AUTHORITY OF INDIA TO HIS EMPLOYEE SHRI YASHWANT ANNAJI ZADE WITH CLEAR INSTRUCTION TO HIM TO DEPOSIT THE SAME WITH CANARA BANK , SADAR BRANCH, NAGPUR ON THE SAME DATE. THE SAID EMPLOYEE WENT TO HIS FATHER HOUSE AT VILLAGE KHUMARI IN TAH . KALMESHWAR AND FORGOT TO DEPOSIT THE SAID CHEQUE ON 03/01/2009 . AFTER COMING BACK TO NAGPUR ON 02/02/2009, THE EMPLOYEE OF ASSESSEE SHRI YASHWANT ZADE REALIZED HIS MISTAKE AND DEPOSITED THE SAID CHEQUE ON 03/02/2009. SHRI YASHWANT ZADE HAS CONFIRMED THE AFORESAID FACTS BY HIS AFFIDAVIT SWORN ON 26 TH OCTOBER, 2015 BEFORE EXECUTIVE MAGISTRATE, NAGPUR. 3 . THE AFORESA I D AFFIDAVIT OF SHRI YASHWANT ZADE WAS NOT PLACED BEFORE A.O. AND CIT(A) AS THE SAME WAS EXE CUTED ON 26 TH DAY OCTOBER, 2015. THIS AFFIDAVIT IS THE LEGAL EVIDENCE AND REQUIRES NO FRESH FACTS TO BE INVESTIGATED. 4 THE EVIDENCE WHICH NOW ASSESSEE WANTS TO SUBMIT WOULD EXPLAIN THE CIRCUMSTANCES UNDER WHICH THE ASSESSEE WAS UNDER BONAFIDE BELIEF T HAT THE AMOUNT OF RS . 50 LAKHS HAS BEEN DEPOSITED I N BA NK ON 03/01/2009 FOR PURCHASE OF BOND BY HIS EMPLOYEE IN ORD E R TO CLAIM EXEMPTION U/S 54EC OF I . T . ACT 1961 . SINCE THE SAID E VI DENCE IS NECESSARY TO ADJUDICATE THE ADDITIONAL GROUND NO . 2 RAISED I N THE APPEAL , ASSESSEE HUMBLY PRAYS THAT THE SAME BE ADMITTED UNDER RULE 29 OF ITAT RULES FOR DECIDING THE GROUND ON MERITS. THE ASSESSEE PLACES RELIANCE ON THE DECISION OF RSS SHANMUGAM PILLAI & SONS . VS. CIT, 95 ITR 109 AND IN THE CASE OF ANAIKAR TRADE RS & ESTATE (P) LTD. (NO.2) CIT , 186 ITR 313(MAD) . 4. BRIEF FACTS OF THE CASE ARE AS UNDER : RETURN OF INCOME DECLARING INCOME OF RS. 4473085/ - WAS FILED ON 25 - 09 - 2009 . THE APPELLANT IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LAND. THE APPELLANT HAS ALSO DERIVES REMUNERATION FROM THE THREE PARTNERSHIP FIRMS BY NAME M/S CHIMURKAR DEVELOPERS, M/S CHIMURKAR DEVELOPERS & PROMOTERS AND M/S C.C. CONSTRUCTIONS, NAGPUR. DURING THE COURSE OF ASSESSME NT PROCEEDINGS IT WAS NOTED BY THE AO THAT THE APPELLANT HAD DECLARED LONG TERM CAPITAL GAIN ON SALE OF PLOT OF LAND AMOUNTING TO RS. 7,19,603/ - WHICH COMPRISED OF PROPORTIONATE SHARE OF THE APPELLANT IN SALE CONSIDERATION OF JOINTLY OWNED LAND AT KHASARA NO. 103 MOUZA NARSALA (SALE DEED DATED 07 - 07 - 2008) - AND 1/3 RA SHARE IN SALE CONSIDERATION OF JOINTLY OWNED LAND ON SURVEY NO. 118 AT NARSAIA AS PER SALE DEED DATED 07 - 07 - 2008. 4 ITA NO.253/NAG/2014. IN RESPECT OF LAND AT KHASR NO. 103 IT WAS EXPLAINED BY THE APPELLANT THAT THE SAID PIECE OF LAND HAD BEEN PURCHASED ON 16 - 11 - 1998 AND THE PURCHASERS OF THE SAID PARTIES WERE AS UNDER : A) SHRI NEELKAND G. CHIMURKAR (FATHER) B) SHRI VIJAY NEELKANT CHIMURKAR (BROTHERS) C) SHRI RAVINDR NEELKANT CHIMURKAR (ASSESSEE) D) SHRI SANJAY NEELKANT CHIMURKAR (BROTHER) E) SHRI SAMEER VIJAY CHIMURKAR (S/O VIJAY). F) MS. CHAAYA RAVINDRA CHIMURKAR (WIFE OF THE ASSESSEE) G) MS. VIBHA SANJAY CHIMURKAR (WIFE OF SANJAY). THE TOTAL AREA OF THE LAND WAS 8 ACRES AND 6 . 68 ACRES, AGGREGATING AREA OF 14.68 ACRES. IT WAS FURTHER INFORMED BY THE APPELLANT TO THE . AO THAT THE ADDITIONAL COLLECTOR AND COMPETENT AUTHOR I TY' URBAN LAND CEILING DEPARTMENT, NAGPUR DECLARED THE SAID LAND AS BEING COVERED UNDER THE . PROVISIONS OF , URBAN LAND CEILING ACT, 1976 AND CONSEQUENTLY THE C O - OWNERS OF THE LAND MADE AN APPLICATION FOR EXEMPTION OF THE I R LAND U/S 20 OF THE URBAN LAND CEILING & REGULATION ACT, 1976 FOR PROVIDING PLOTS AND / OR CONSTRUCTION OF TENEMENTS. THE LD. AO FURTHER NOTED THAT THE COMPETENT AUTHORITY, ACCORDINGLY PASSED AN ORDER DATED 29 - 05 - 2003 ALLOWING THE AP PELLANT TO DEVELOP THE SAID LAND BY PLOTTING AND / OR CONSTRUCTION OF TENEMENTS, FORMULATING A SCHEME FOR THE SALE OF SUCH PLOTS/TENEMENTS ETC . THE SAID ORDER WAS IN RESPECT OF 47400 SQ. MTS. OF LAND WHICH WAS DECLARED TO BE SURPLUS LAND, FOR WHICH EXEMPTION WAS GRANTED BY THE . CO M PETENT AUTHORITY FOR DEVELOPMENTS VIDE ITS ORDER DATED 29 - 05 - 2003. THE APPELLANT, ALONG WITH HIS C O - OWNERS, SUBSEQUEN TLY PLANNED TO TRANSFER THE LAND TO M/S CHIMURKAR DEVELOPERS. HOWEVER THE AGREEMENT ENTERED INTO WITH ' THE SAID M/S CHIMURKAR DEVELOPERS WAS LATER RESCINDED AND A SUPPLEMENTARY AGREEMENT WA , S ENTERED INTO BY THE OWNERS OF THE SAID LAND WITH M/S NIRMITI GAU RAV INFRASTRUCTURE PVT . LTD. (NGIPL). THE APPELLANT ENTERED INTO THE SAID AGREEMENT OF DEVELOPMENT / PROMOTION AND SALE WITH MI5 NGIPL FOR AGGREGATING CONSIDERATION OF RS . 5,60,00,000/ - . IT WAS FURTHER NOTED BY THE LD. AO THAT THE APPELLANT ALSO ENTERED INTO AN ARRANGEMENT WITH ALL THE , OWNERS OF THE SAID PROPERTY 5 ITA NO.253/NAG/2014. REGARDING THE AMOUNTS THAT WOULD BECAME DUE TO THEM IN PURSUANCE TO THE AGREEMENT FOR THE DEVELOPMENT AND SALE OF 50800 SQ. MTS. OF LAND TO M/S NGIPL FOR CONS I DERAT I ON OF RS. 5,60,00,000/ - . THE : SILENT FEATURES OF THIS ARRANGEMENT WERE AS UNDER: - A . PARTNERS SHRI V/JAY CHLMURKAR & SON SAMEER V. CHIMURKAR WILL GET RS.30 LAKHS EACH I . E. AN AGGREGATE OF RS.60 LAKHS; B . SANJAY CHLMURKAR AND HIS WIFE MS. VIBHA S. CHIMURKAR WILL GET RS . 40 LAKHS EACH I.E . AN AGGREGATE OF RS.80 LAKHS ; C . M.S CHAAYA, WIFE OF THE ASSESSEE WILL GET RS.50 LAKHS: D . APART FROM THE LEGAL HEIR SHRL NEE/KANT G. CHIMURKAR WIFE AND - 3 DAUGHTERS WILL GET RS.2 LAKHS EACH I . E . AN AGGREGATE OF RS.8 LAKHS. E . THE BALANCE AMOUNT I . E. RS . 3,62,OO,OOO/ - W I LL BE RETAINED BY THE ASSESSEE . HOWEVER SUBSEQUENTLY THE SALE DEED WAS EXECUTED BETWEEN THE OWNERS OF THE PROPERTY AND M/S NGIPL FOR TRANSFER OF 12337.75 SQ. MTS. ONLY ALONG WITH ONE RETAINABLE PLOT (NO. 8) ADMEASURING 1500 SQ. MT . I . E . . TOTAL AREA BEING 13837.75 SQ. MTS. FOR A CONSIDERATION OF RS . 3 CRORES. ON THE BASIS OF THE ABOVE TRANSACTION THE APPELLANT DECLARED CAPITAL GAIN IN HIS RETURN OF INCOME BY SHOWING GROSS C ONSIDERATION RECEIVED AMOUNTING TO R S . 1,10,00 , 000; : ' ' IT WAS THE C ONTENTION OF THE APPELLANT THAT AN AMOUNT OF RS. 1,90,00 , 000/ - OUT OF THE TOTAL RECEIVED OF RS. 3 CRORES HAD BEEN PAID BY THE APPELLANT TO PARTIES AT A, BAND C OF THE LIST MENTIONED ABOVE AND THE REMAINING AMOU NT OF RS. 1,10,00,000/ - WHICH WAS RECEIVED BY THE APPELLANT HAD BEEN DULY OFFERED FOR TAX UNDER THE HEAD CAPITAL GAIN. THE AO HOWEVER DID NOT AGREE WITH THE ABOVE METHOD OF COMPUTATION OF CAPITAL GAIN OF THE APPELLANT. AS PER THE LD. AO THE TOTAL CONSIDERATION FOR 50800 SQ. MTS. OF LAND WAS FIXED AT 5.60 CRORES ON WHICH THE APPELLANT WAS TO RECEIVE AN AMOUNT OF RS . 3.62 C RORES AND SINCE THE EVENTUAL TRANSFER WAS OF 13837.75 SQ MTS. ONLY, THE PROPORTIONATE CONSIDERATION THAT WOULD BE DUE TO THE APPELLANT WOULD BE RS. 1,93,92,860/ - AS AGAINST THE CONSIDERATION SHOWN BY THE APPELLANT OF RS.1,10,00,000/ - . THE AO ACCORDINGLY M ADE AN ADDITION OF DIFFERENTIAL AMOUNT OF RS. 6 ITA NO.253/NAG/2014. 83 . ,92,860/ - . THE LD. AO FURTHER NOTED THAT THE APPELLANT HAD SOLD ANOTHER PIECE OF LAND AT SURVEY NO. 118 MOUZA NARSA/A TO THE SAME M/5 NGIPL . HE FURTHER NOTED THAT THE APPELLANT IS IN ANY CASE IS IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION AND SALE OF PLOTS OF LAND AND SUBSTANTIAL BUSINESS OF SUCH NATURE IS CARRIED OUT IN THREE PARTNERSHIP FIRMS IN WHICH THE APPELLANT IS A PARTNER. CON S IDERING THE SAID FACT HE ALSO HELD THAT THE PROFIT ARISING ON THE SALE OF SAID PLOT OF LAND WAS LIABLE TO BE TAXED AS BUSINESS INCOME OF THE APPELLANT. THE AO, THEREFORE, BROUGHT TO TAX SURPLUS ARISING TO THE APPELLANT ON SALE OF PLOTS NO. 103 AND 118 AS BUSINESS INCOME OF THE APPELLANT AND SUBSEQUENTLY COMPUTED THE INCO ME OF THE APPELLANT AT RS.2,34,65,900/ - . 5. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) HELD AS UNDER : 1 . 5 . I H A VE C AR E FULL Y CONSIDERED THE FACTS OF THE CASE A ND THE W R I TTEN SUBM I SS I ONS O F TH E APPE LL AN T . IT I S EV I DENT T HA T THE APPE LL AN T I NITIALLY AGR EED TO SELL 50800 SQ . M T . O F L AND FOR A CONS I DERAT I ON O F RS . 5.60 C R OR E S . IT W AS ALSO STATED BY THE APPELLANT THAT IN CONSEQUENCE TO THE SA I D TRA N SA CTI ON THE APPELLANT WOU L D B E E NT I TLED TO RECE I VE CONS I DERAT I ON OF RS. 3. 62 CR ORES. HOWE V ER EVENT U A LLY TH E APPELLANT SOLD ONLY 13837.75 SQ . MTS. OF L AND F O R A CONS I DERATION OF RS. 3 CRORES . OUT OF THIS RS . 3 CRORES, AFTER RETAINING RS . 1 . 1 0 C RO RE S , T HE APP EL LAN T GAVE AN AMOUNT OF RS. 1 . 90 CRORES T O O TH E R EO - O WN ER S A S A R ES ULT OF INTER NA L ARRANGEMENT ENTERED I NTO B Y T H E AP PELLANT WI T H . THE OT HER EO - O W NE RS. A L SO AS A RESU L T OF T H E SA I D FAM IL Y ARRANGE MENT THE APPELLANT BECAME THE ABSOLUTE OWNER OF THE UNSO L D PART OF THE PRO PE R TY AND ALS O RECEIVED A CONSIDERATION OF RS . 1 . 10 CRORES. THUS , T HE T OTAL CONS I DE R ATION R ECE I VED B Y THE APPELLANT WAS RS . 1.02 CRORES + THE U NSOLD PLOTS. SINCE EARLIER THE APPELLANT WAS TO RECEIVE A TOTA L CONS I DERAT I O N O F P.S. 3.62 CRORES AND S I N C E THE APPELLANT EVENTUALLY RECE I VED RS. 1 . 02 CROR ES + U NSO L D P L OTS , I T I S E VI DENT THAT THE VALUE OF UNSOLD PLOT W AS RS. 2.6 0 C R O R ES. IN ANY C AS E THE T O T A L C ONS I DE R AT I ON RECE I VED B Y TH E APPE L L A NT WOU L D HAVE TO BE T A K EN AT RS . 362 LA CS OUT OF WH I CH THE APPEL L ANT FO R T A X H AS O FFERED ONLY AN AMOU NT OF RS. 10 2 L ACS . 5 .1 I T I S TO B E F URTHER NOTED THAT THIS UNSO L D PLOT OF L A N D H A VE N O W MOVED FROM J O I NT OWNERSHIP T O THE EXCLUSIVELY OWNERSHIP OF THE APPELLAN T AND THE APPELLANT IS NOW AT COMPLETE FREEDOM TO USE THE PROPERTY IN W HICH _ E VER WAY HE WANTS . THE APPELLANT CAN RETAIN THE SAID PLOT OF LAND FOR H I S OWN P ERSONAL USE OR DEC I DE TO SELL IT AT A LATER DATE TO ANY I NDEPENDEN T PARTY OTHER TH A N ML S N GIP L . T H US T HE TOTA L CONSIDERAT I ON R ECEI V ED BY TH E AP PELL AN T I S RS . 362 L A C S WHI C H I S R E Q U I RED TO BE BROUG H T T O T A X I N THE C A S E OF TH E APPE LL ANT FO R TH E Y EAR UNDER CONS I DERAT I ON. THE ON LY E X P L A N A TI O N G IV EN B Y THE APPEL L AN T D URI N G T HE COURSE O F APPE LL ATE P R OCEED IN GS I S TH AT S I NC E THE P L OTS OF L AND H A V E CAME T O THE OWNERSH I P OF THE APPE LL AN T I N P UR S U A N CE TO TH E F AM ILY AG RE EME NT, THERE I S NO TRANSFER O F THE ASSET WI TH IN THE M E AN I N G O F SECTION 2( 4 7) OF TH E ACT AND THAT THEREFORE THERE I S NO QU E ST ION OF BRINGING THE CORRESPOND I NG AMOUNT TO TAX . 5 . 2 I DO NOT AG R EE W I TH THE ABOVE SUBMISS I ON OF THE A PP E LL A NT. AT THE OUTSET IT I S I MPORTANT TO NOTE THAT DURING THE COURSE O F ASSESS M ENT P R OCEEDINGS, THE APPELLANT WAS REQUIRED BY THE LD. AO TO SPEC I F Y T H E SOURCES OF FUND FROM WH I CH THE PURCHASE OF THE SAID PROPERT Y WAS MADE A T THE T I ME OF PURCHASE OF THE SAID PROPERTY AND WHAT PERCENTAG E WAS CO NTRI BU TE D B Y 7 ITA NO.253/NAG/2014. EACH FAM I LY MEMBERS . IT WOULD THEN BE VERY EAS Y FOR T H E L D . A O TO DET E RM I NE T H E R ESP E CT I VE SHARE OF SALE CONSIDERAT I ON OF EACH O F THE OWN ERS FROM THE TOTAL CO N S I D ER ATION I F I ND I VIDUAL PURCHASE PERCE N TAGE CO N T RI B UTI O N O F EACH OF THE O WNE RS W AS MADE AVAILABLE. THE APPEL L ANT DUR I NG TH E COURSE OF ASSESSMENT PROCEED I NGS AS WEL L AS APPELLATE PROCEED I NGS E X P R ESSED HI S INABILIT Y TO FU R NISH T H E REQUIRED DETAILS OF THE RESPECTI V E I NVES TMEN T O F T H E I ND I V I DUAL CO - O W N ERS . T H E RESPECTIVE SHARE OF E ACH O F TH E CO - OWN E R S W OU L D . H AVE BEE N A IOGI C AL A ND RAT I ONAL WAY TO DETERMINE THE R ESPEC TIV E SHARES OF EAC H O F THE EO - O WNER S AT THE T I ME OF SALE OF THE SAID PROPERTY. T H E APPE L LANT , WHILE NOT SUBMITTING THE SAID DETAILS HAS NOW PUT FORTH THE EXPLANAT I O N OF THE FAMILY ARR A NGEM . ENT. I HOWEVER DO NO T AGREE WI TH THE SA I D E X PLANATION OF THE APPE L LANT. IN AN Y FAMIL Y ARRANGEME N T THER E H AS T O BE A FAIR AND EQU I T A B L E DISTRIBUTION . IT IS BASED ON A CERTA I N L O GI CA L AND RAT I ONAL BASIS . FURT H ER, ALL THE PROPERTIES, ASSETS AND LI AB IL I T I ES A R E A MI CABL Y D I STRIBUTED IN A FAM I LY ARRANGEMENT . THIS IS NOT THE CASE HERE. IN T H E F AM IL Y ARRANGEMEN T EN TE R E D I N T O HERE BY THE APPELLANT W ITH T HE OTHE R CO - O W NERS , T HER E I S A H UG E VA R IATI ON OF SHARES O F ALL THE EO - O W NERS . AS A M A TT E R O F F ACT TH E APPEL L AN T IS GET TI N G MORE THAN 60% SHARE OF THE SA L E CO N S I DE RATI O N O F TH E SA I D P R OPERT Y . T H E R E I S N O L OGIC OR REASON I NG BEH I ND SUC H A DEC I S I O N . IN THE CASE OF THE A PPELL A NT , THE CO - OWNERS WHO JO I NTLY ACQU I RED THE PROPERTY , EACH B Y CONTRIBUTING C E RTAIN PERCENTAGE AT THE TIME OF . ACQU I SITION , A RE NO W S EE KI NG TO DISTRIBUTE THE SALE CONS I DERAT I ON I N A M A N NE R WHI C H I S I NEQU I TAB L E AND H AS NO L OG I CAL BAS I S. A FA MILY A RR A N QER N E N T D O E S N OT RE S UL T I N IN EQU IT AB L E DI ST RI BUT I ON OF WEA L TH . TH I S TYPE O F FAM I LY A RR A NGEMENT, AS ENTERED INTO B Y THE APPE LL ANT , IS A COLLUS I VE ARRANGE M E NT E F F EC TED W I TH TH E SO LE I NTENTION OF TA X AVO I DANCE . THE APPEL L ANT F I RST R EFUSES TO GIVE THE DETA IL S OF THE R ESPECT IV E SHARE O F EAC H O F THE E O - OWNERS AND THEN COMES UP WITH T H E THEOR Y O F F AM ILY , ARRANGEMENT , W H I C H IS FUNDAMENTALLY I LLOGICA L. I N OTHE R W ORDS THE A PPE LL ANT WANTS TO BENEFIT FROM AND WANTS TO TAKE ADVANTAGE OF IS OWN DEFAULT. IT IS AN ELEMENTAR Y P RIN C I PLE OF L AW THAT NO PERSON CA N PUT F OR W ARD HI S O W N DEFAU L T IN DEFENSE TO A R I GHT ASSERTED BY THE OTHER PARTY . A PERSON CANNOT SAY T H AT THE PARTY CLA I M I NG THE R I GHT I S DEPRIVED OF THAT R I GHT BECAUSE \ \ 1 HAVE COMMITTED A DEFAULT AND YOUR RIGHT IS LOST BECAUSE OF THAT DEFAULT'. A L SO , AS STATED AB O V E , AN Y FAMI LY ARRA N GEME NT E N TA I L S D I S TR I BUT I ON O F A L L T H E P R OP ER T I ES , AS SET S AND L I AB I LI T I ES W H IL E IN T HE CASE O F THE APP E LL ANT I T I S ON LY THE RESPECT IV E SHARES IN ONE ISOLATED PROPERTY T H A T A R E SOUG HT T O BE D I ST UR BED T O SUIT TH E CONVEN I ENCE OF THE APPE L L ANT . S U C H A F A M I LY AR R ANGE M EN T CA NN O T BE A CCEPTED. L 5 . 3 I THE REF O RE H O L D THAT SINCE THE OWNERSHIP OF THE UNSO L D P L O T HAS BEEN TR ANS F E RRED T O T H E APPEL L ANT , THE SAME A L ONG W I TH RS . 102 L ACS R EC E I V ED B Y THE APPE LL A NT CON S T I TUTE THE T OTA L CONS I DERAT I ON R ECE IV ED FOR T H E SA I D T RA N S A C T I O N . I THEREFORE HOLD THAT THE TOTAL CONSIDERATION RECEIVED BY THE APPELLANT TO BE RS. 362 LACS AND THE SAME IS TO BE TAXED IN THE . HANDS OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION. 6 . WITH REG A R D T O T H E CONTENT I ON O F THE I D . AO THA T THE SA ID TRANSACTION TRANSACT I ON AMOUNT S T O BUSINESS TRANSACTION , IT WAS STATED BY T HE AP P ELL AN T VI D E SUB MIS S IO N D ATED 2 9 - 01 - 20 13 AS UNDE R : - 8 ITA NO.253/NAG/2014. ' T HE LE ARNE D ASSESSING OFF I CER CONS I DE R ED T H E IN COME FR OM SALE O F LAN D A S I NCOME FROM BUSINESS TRANSACT I ON INSTEAD O F LONG T ERM CAPITAL G AI NS. IN THIS CONNECT I ON , WE BEG TO SUBM I T AS UNDER : - THE A SS ES SE E I S CARR YI NG ON THE BUS I NESS AS B U I L DE R & DE V E L OP E R I N L AND . BUT CARR YI NG ON BUS I NESS AS B UIL DE R S & DE VE L O P E R S I N L AND IS NOT T HE ON L Y DECIDING FACTOR FO R DETERM I N I NG THE NA TUR E O F A P A R T I C ULA R T RANSACTION . THE DOM I NANT I NTENT I ON OF T HE ASS ESSEE IS RELEVANT T O D ET ERM I NE THE NAT UR E OF ACT I V I T Y. THE AG R I CU LT UR A L L AND A T KH . N O . 1 0 3 W AS PURCHASED CO LL E CTI V E LY B Y ASSESSEE AND OT HE R 6 M EMBE R S OF H I S FAMILY , AS AN I N V ES TM E NT IN T H E Y E A R 199 8 TO C A R RY OUT AGRICULTURAL OPERATIONS. THE ASSESSEE ' S F AM I! Y IS BAS ICA LL Y AGR I CULTURALIST AND THEY ARE STILL CA R R Y I NG ON A GR I CULTURA L OPE R AT I ONS . AS THE L AND W AS C L OS E TO N A GP U R C ITY I T W A S CO V ER E D UND E R TH E PRO V I S I O N S OF URBAN L AN D ( CE I L I N G & R EGU L A T I ON ) A C T, 1 976 I N T HE YEA R 2 00 0 B Y V I RTUE O F RE VI SE D DRAFT DEVELOPMENT PLAN OF NAGPUR CITY . THE LAND ACQU I SIT I O N OFF I C E R ISSUED NOTICE TO THE OWNERS. IN RESPONSE TO NOTICE, THE O W NERS FILED RETURN U/S. 6(2) OF THE URBAN LAND (CE I L I NG & REG UL AT I ORI ) ACT , 197 6 . OUT OF THE TOTA L AREA OF 59 ,4 00 SQ. MTR S . , TH E RETA I NAB LE PORT I ON W AS ALLOWED AT 12 , 000 S Q . MTR S . ( 1 5 00XB) . TH E BAL A NCE 47 ,4 00 SQ. MTRS. OF L AND W AS DEC L ARED AS S URPLU S 9 ITA NO.253/NAG/2014. LAND . THE OWNERS WERE DIRECTED TO SUBMIT A SCHEME U/S . 20 ( 1)(A) OF THE URBAN LAND (CEILING & REGULATION) ACT, 1976 ON TALEGAON DABHADE PATTERN WITHIN 60 DAYS OF THE ORDER DT: 31 . 03.2003 . FAILURE TO SUBMIT THE APPLICATION WITHIN STIPULATED PER I OD OF 60 DAYS FROM 31.03.2003 WOULD HAVE RESULTED I N FORFE I T UR E OF SURPLUS LAND OF 47 / 400 SQ . MTRS . BY THE GOVERNMENT . IN RESPONSE TO APPLICATION BY ASSESSEE , THE COMPETENT AUTHORITY PASSED ORDER DT. 29 . 05.2003 DIRECTING THE OWNERS TO APPLY FOR CONVERSION OF LAND TO NON - AGR I CULTURA L USE AND GET THE PLAN SANCTIONED FROM ASSTT . DIRECTOR TOWN PLANNING DEPARTMENT, NAGPUR . THE OWNERS GET THE LAND CON V ERTED I N TO NON - AGR I CULTURE U~E AND THEREAFTER GOT APPROVAL OF RES I DENTIA L L A Y OUT W AS W I TH A VIEW TO SAFEGUARD FROM THE FORFEITURE OF 47/4 00 SQ . MTRS. OF SURPLUS LAND DECLARED . /I 6 . 1 THE APPEL L ANT HAS ALSO REL I ED ON VARIOUS CASE LAWS IN SUPPORT OF ITS CONTENT I ON . 6 . 2 I HAV E CAREFULLY CONS I DERED THE FACTS OF THE CASE AND THE SUBMISS I ON OF THE APPELLANT. IT IS SEEN THAT THE FACTS OF THE VARIOUS CASE LAWS ' RELIED UPO N BY T H E A PPELLANT ARE ON DIFFERENT FOOTINGS FROM THE FACTS OF THE CASE UNDER CONSIDERAT I ON. IT I S I MPORTANT TO NOTE THAT IT I S THE APPEL L ANT W HO APPROACHED THE COMPETENT AUTHORITY I N THE FY 2002 - 03 WITH A REQUEST TO ~. CONVERT THE AGRICULTURAL LAND EO - OWNED BY HIM AT KHASARA NO. 103, N ARSALA TO A COMMERCIAL PIECE OF LAND, WHICH CAN BE PLOTTED AND PROPERLY EXPLOITED FOR T HE PURPOSE OF BUSINESS. THE I NTENTION OF THE APPELLANT W AS CLEAR , TO DEVELOP THE SAID PLOT OF LAND BY CONSTRUCTION OF TENEMENTS, FORMULATING A SCHEME FOR SMALL PLOTS WI THIN THE SPECIFIED PERIOD. THE APPELLANT ACCORDINGL Y APPROACHED THE COMPETENT AUTHORITY AND VIDE ORDER DATED 29 - 05 - 2003 THE SA I D AUTHOR I TY ISSUED AN ORDER AL LOW I NG THE APPELLANT TO PROMOTE TO DEVELOPMEN T OF TH E SA I D PLOT BY P L OTTING AND BY CONSTRUCTION OF TENEMENTS, ISSUE OF DE V ELOPMENT GIVING FULL DETAILS OF THE SCHEME AND SALE THE SAID PLOT OF LANDS / TENEMENTS TO THE INTENDING PURCHASERS AND EVENTUALLY TRANSFERRING THE OWNERSHIP OF LAND TO THE PROPOSED COOPERATIVE HOUSING SOCIETIES OR DEVELOPERS O R BUILD ERS . THUS I T I S THE APPELLANT W HO APPROACHED THE COMPETENT AUTHOR I T Y WI TH AN I NTENT I ON T O CARRY OUT TH E BUS I NESS O F DEVELOPMENT AND SALE OF PROPERT Y . IT I S ON T HE B ASI S O F ABO VE F ACTS THE LD. AO HAS CORRECT LY BROUGHT TO TA X THE SAID P ROPE RTY A S A B U S I NESS PROF I T . 6.3 INCIDENTALLY IT IS IMPORTANT TO MENTION THAT THE APPELLANT IS OTHERWISE ALSO E NGAGED IN THE BUSINESS OF PURCHASE AND SALE OF P L OT OF LAND AND I N CONSTRUCT I ON . A S A MATTER OF FACT THE SUBSTANT I AL BUS I NESS OF S UCH NATURE IS BEING CARRIED OUT IN THE THREE PARTNERSHIP FIRMS WHEREIN THE APPELLANT IS PARTNER. 6.4 HOWEVER THE MOST IMPORTANT PIECE OF EVIDENCE IS THE FACT THAT THE R EMAINING PORTION OF THE PLOT OF LAND IN QUESTION, WHICH HAS BEEN SOLD BY THE APPELLANT IN THE SUBSEQUENT ASSESSMENT YEARS, HAS BEEN OFFERED TO TAX BY THE APPELLANT UNDER THE HEAD BUSINESS. IN SUCH CIRCUMSTANCES, IT IS DIFFICULT TO UNDERSTAND AS TO HOW THE CERTAIN PORTION OF THE SAME PLOT OF LAND CAN BE OFFERED TO TAX BY THE APPELLANT UNDER THE HEAD CAPITAL GAIN WHILE THE REMA INING PORTION IS BEING OFFERED IN THE SUBSEQUENT YEAR UNDER THE HEAD BUSINESS. IN VIEW OF THE ABOVE FACTS, I SEE NO INFIRMITY IN THE ACTION OF THE LD. AO TO TAX THE SURPLUS 10 ITA NO.253/NAG/2014. ARISING ON THE SALE OF LAND AT KHASARA NO. 103 AND 108 UNDER THE HEAD BUSINESS. THE SE GROUNDS ARE THEREFORE DISMISSED. 6. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE IS SUMMARIZED AS UNDER : GR. NO . 1 TO 4 : ASSESSMENT OF RS.1 ,97,12 , 4171 - AS INCOME FROM BUSINESS INCOME AS AGAINST CAPITAL GAIN SHOWN IN RETURN. A ) THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS HAD ACQUIRED AGRICULTURAL LAND AT KHASRA NO. 103, MOUZA NARSALA FOR TOTAL CONSIDERATION OF RS.14 , 85 , 8201 - VIDE TWO DIFFERENT SALE DEEDS DATED 16/1/1998 & 16/11/1998. THE AFORESAID AGRICULTURAL LAND WAS BEING USED FOR THE PURPOSE OF AGRICULTURAL ACTIVITIES BY ASSESSEE AND OTHER MEMBERS OF THE FAMILY FROM THE DATE - OF PURCHASE TILL THE SUBSEQUENT YEARS. THE EXTRACT IN FORM NO . 7112 CLEARLY EVIDENCES THAT THE PROPERTY BEING AGRICULTURAL LAND WAS PURCHASED AND HELD AS CAPITAL ASSET WHEREIN AGRICULTURAL ACTI VITIES ARE BEING PERFORMED. THE AGRICULTURAL PRODUCE CULTIVATED ON THE SAID LAND IS ALSO EVIDENCED FROM THE EXTRACT IN FORM NO . 7/12. 11 ITA NO. 253/NAG/2014. B) IN THE YEAR 2000 ON ACCOUNT OF CHANGE IN THE DEVELOPMENT PLAN OF THE CITY OF NA , 9PUR BY STATE GOVERNMENT OF MAHARASHTRA AGRICULTURAL LAND OWNED AND HELD BY ASSESSEE WAS FALLEN FOR CONSIDERATION UNDER THE PROVISIONS OF URBAN LAND CEILING ACT, 1976. IN VIEW OF THIS DEVELOPMENT ASSESSEE WAS OBLIGED TO , FILE RETURN BEFORE ULC AUTHORIT Y AND THE COMPETENT AUTHORITY VIDE ORDER DATED 13/05/2003 HAD DECLARED THE LAND TO BE SURPLUS AT THE HANDS OF EO - OWNERS OF THE CAPITAL ASSET AT 47400 SQ. MTRS. C ) THE ASSESSEE IN ORDER TO SELL CAPITAL ASSET HAD MADE AN APPLICATION UNDER SECTION 20 OF ULC ACT FOR RELEASING OF THE SAME TO THE C O - OWNERS TO BE SOLD TO THE INTERESTED DEVELOPERS. IN ORDER TO COMPLY WITH THE DIRECTION OF THE COMPETENT AUTHORITY AGRICULTURAL LAND HAD TO BE CONVERTED INTO NON AGRICULTURAL LAND AND LAY - OUT PLAN FOR SUCH LAND HAD TO BE OBTAINED FROM THE STATUTORY AUTHORITY. THE AFORESAID TWO STEPS HAD TO BE NECESSARILY COMPLIED WITH IN ORDER TO REALIZE THE VALUE OF CAPITAL ASSET HELD AND OWNED BY ASSESSEE. D) FACTS AT SUBMISSION B & C ABOVE WERE SIMILAR FOR LAND AT KH . NO.118 AND RELEVANT DOCUMENTS ARE PLACED IN PAPER BOOK [VOL . - I] AT SR . NO.8 . TO 13. E) THE AFORESAID FACTUAL POSITION WOULD CLEARLY DEMONSTRATE THAT THE PROPERTY SOLD BY ASSESSEE WAS HELD AS CAPITAL ASSET AND WAS NEVER ACQUIRED WITH AN INTENTION TO C ARRY OUT ANY ACTIVITY OF BUSINESS. THE CONCLUSION OF A.O. AS WELL AS 12 ITA NO. 253/NAG/2014. CIT(A) THAT SURPLUS REALIZED IN RESPECT TO SALE OF SUCH CAPITAL ASSET IS EXIGIBLE TO TAX AS BUSINESS INCOME IS UNJUSTIFIED AND UNSUSTAINABLE. 1 F . THE ASSESSEE HAS ACQUIRED CAPITAL ASSET ALONG WITH OTHER CO - OWNERS OF PROPERTY. THE ASSESSEE OTHERWISE ENGAGED IN THE ACTIVITY OF BUSINESS OF REAL ESTATE IS NO BAR TO HOLD CERTAIN ASSET IN YEAR 1998 AS CAPITAL ASSET . THE ORIGINAL CAPITAL ASSET ACQUIRED IS AGRICULTURAL LAND WHEREIN AGRICULTURAL ACTIVITIES WERE CARRIED OUT BY ASSESSEE ALONG WITH OTHER FAMILY MEMBERS AND THESE FACTS CLEARLY DEMONSTRATE THAT THE AFORESAID ASSET WAS NOT TRADING ASSET AT THE HANDS OF ASSESSEE. G . THE JOINT OWNERSHIP OF CAPI TAL ASSET IS AN UNDISPUTED FACT ON RECORD. THE OWNERSHIP OF THE SHARE OF ASSESSEE IN SUCH CAPITAL ASSET CAN NEVER BE CONSIDERED TO ACTIVITY OF BUSINESS. IN VIEW OF ABOVE ASSESSMENT OF SURPLUS AS INCOME FROM BUSINESS IS UNJUSTIFIED AND UNSUSTAINABLE. H . T HE ASSESSEE IN COMPLIANCE OF ORDER OF COMPETENT AUTHORITY OF ULC VIDE ORDER DATED 29/05/2003 HAD TO APPLY FOR APPROVAL OF LAYOUT FOR WHICH AGRICULTURE LAND WAS REQUIRED TO BE CONVERTED FOR NON - AGRICULTURAL USE FROM COMPETENT AUTHORITY. SAME WAS OBTAINE D ON 18/10/2005. SUBSEQUENTLY LAYOUT PLAN WAS SANCTIONED IN THE CASE OF ASSESSEE ON 18/01/2007 BY TOWN PLANNING AUTHORITIES. I . THE ASSESSEE SUBSEQUENTLY ENTERED IN AGREEMENT FOR SALE ENTIRE PLOTS TO ONE PARTY ON 12/03/2007. ASSESSEE HAS NOT 13 ITA NO. 253/NAG/2014. 1 INCURRED ANY EXPENDITURE ON DEVELOPMENT OF LAND. J . ALL THE STEPS HAD TO BE TAKEN IN ORDER TO OBTAIN BEST PRICE FOR THE CAPITAL ASSET AND NONE IS DRIVEN WITH AN INTENT I O N T O CARRY ON ANY TRADE OR BUSINESS ACTIVITY. K . SALE OF LAND AFTER PLOTTING TO SECURE BETTER PRICE . IT CANNOT BE ASSESSED AS BUSINESS INCOME . RELIANCE ON: I ) (2008) 298 ITR 0277 CIT VS. SURESH CHAND GOYAL II) (1989) 176 ITR 0393 CIT VS. A. MOHAMMED MOHIDEEN III) ITAT ORDER IN ITA NO.1745/AHD/2010 IN THE CASE OF SHRI DHIRUBHA I KANJIBHAI PATEL (HUF) VIDE ORDER DATED 30108/2013 L . THE ASSESSEE INVITES ATTENTION TO THE ASSESSMENT ORDER OF SMT . CHAYA CHIMURKAR , ONE OF THE EO - OWNERS OF CAPITAL ASSET WHEREIN SURPLUS ARISING ON SALE OF ASSET HAS BEEN ACCEPTED BY A.D. TO BE IN THE NATURE OF CAPITAL GAIN. THE REVENUE HAVING ACCEPTED THE ASSESSMENT OF CAPITAL GAIN AT THE HANDS OF ONE OF THE EO - OWNERS OF THE LAND CANNOT TAKE CONTRARY STAND IN THE CASE OF OTHER EO - OWNERS OF THE SAME , LAND TO ASSESS THE SAME AS BUSINESS INCOME. M . THE ASSESSEE HAD ENTERED INTO TRANSACTION OF DEVELOPMENT OF CAPITAL ASSET WITH M/S . NIRMITI INFRASTRUCTURES & DEVELOPERS PVT . LTD . ON 12/3/2007 . THE ASSESSEE ALONG WITH OTHER C O - OWNERS WAS IN RECEIPT OF CONSIDERATION TO THE 14 ITA NO. 253/NAG/2014. EXTENT OF RS.130 LACS AS P,ER AGREEMENT TO SELL AND HAD NOT RECEIVED ANY SUBSEQUENT PAYMENT FROM THE SAID PARTY WHICH RESULTED INTO DISPUTE AND CANCELLATION OF TRANSACTION BY ASSESSEE WITH THE AFORESAID C OMPANY. IN VIEW OF VARIOUS OBSERVATIONS OF A.O. WITH ' REGARD TO CONSIDERATION REFERRED TO IN AGREEMENT WHICH HAS BEEN REVISED LATER BY PARTIES IS UNJUSTIFIED AND UNSUSTAINABLE . N ) THE ASSESSEE ALONG WITH OTHER CO - OWNERS HAS EXECUTED SALE DEED FOR THE SUM OF RS . 3 CRORES WHICH IS REGISTERED DOCUMENT . THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE TRANSACTION OF RECEIPT OF CONSIDERATION BY ASSESSEE AND . OTHER CO - OWNERS ON SALE IS MORE THAN RS.300 LACS AS OBSERVED IN THE REGISTERED SALE DEED . REVENUE HAS ACCEPTED SALE CONSIDERATION OF ALL OTHER CO - OWNERS AT RS.190 LACS. A.O. COULD NOT HAVE TAKE SALE CONSIDERATION IN EXCESS OF RS.11 0 LACS AT THE HANDS OF ASSESSEE . ON THE FACE OF A BOVE FACTUAL POSITION RECOMPUTING THE SALE PRICE BY A.O. BY REFERRING TO CANCELLED DOCUMENTS IS UNSUSTAINABLE. O ) THE ASSESSEE ALONG WITH OTHER CO - OWNERS HAS ENTERED INTO MEMORANDUM OF UNDERSTANDING WHEREBY THE CONSIDERATION RECEIVABLE IN RESPECT TO P ROPERTY HAD TO BE DISTRIBUTED AMONGST VARIOUS CO - OWNERS IN A PRE - DECIDED MANNER . THE SALE CONSIDERATION AS RECEIVED BY ASSESSEE IN RESPECT TO SALE DEED EXECUTED HAS BEEN TAKEN INTO ACCOUNT FOR COMPUTING CAPITAL GAIN AT THE HANDS OF ASSESSEE. THE COST OF ACQUISITION HAS ALSO BEEN DISTRIBUTED IN RATIO OF SALE CONSIDERATION RECEIVED BY ASSESSEE AND THUS THERE IS NO ERROR IN DECLARING CAPITAL GAIN IN THE RETURN OF INCOME . THE 15 ITA NO. 253/NAG/2014. BALANCE PROPERTY HAS BEEN SOLD IN SUBSEQUENT YEARS AND SURPLUS ARISING ON THE SAME HAS BEEN DECLARED . IN THE RETURN OF INCOME FOR SUBSEQUENT ASSESSMENT YEAR AT THE HANDS OF ASSESSEE. IN VIEW OF ABOVE THERE REMAINS NOTHING WHY THE CAPITAL GAIN SHOWN IN THE RETURN BE NOT ACCEPTED AT THE HANDS OF ASSESSEE. MOU DATED 15/03/2007 AMONGST FAMILY MEMBERS . ADDITIONAL GROUND NO. 1: A ) THE SALE DEED OF ASSESSEE HAS BEEN EXECUTED ON 07/07/2008 AND ASSESSEE MADE INVESTMENT OF CONSIDERATION AT RS.52,88,3201 - IN ORDER TO CLAIM DEDUCTION ULS 54F FOR INVESTMENT MADE BY ASSESSEE IN NEW RE SIDENTIAL HOUSE. THE ELIGIBILITY OF EXEMPTION UNDER SECTION 54F OF LT . ACT 1961 HAS BEEN CORRECTLY EXPLAINED BEFORE A.O. AND THERE IS NO DISPUTE AS REGARD TO SAME IN ASSESSMENT FRAMED. IN VIEW OF ABOVE EXEMPTION UNDER SECTION 54F OF LT . ACT 1 ~61 AS CL AIMED IN THE RETURN BE DIRECTED TO BE ALLOWED. ADDITIONAL GROUND NO. 2: A ) THE SALE DEED OF ASSESSEE HAS BEEN EXECUTED ON 07/07/2008 AND ASSESSEE MADE INVESTMENT OF CONSIDERATION AT RS. 50 LACS IN CERTAIN BONDS IN ORDER TO CLAIM DEDUCTION ULS 54EC FOR INVESTMENT MADE BY 16 ITA NO. 253/NAG/2014. ASSESSEE IN CERTAIN BONDS. THE ELIGIBILITY OF EXEMPTION UNDER SECTION 54EC OF LT . ACT 1961 HAS BEEN CORRECTLY EXPLAINED BEFORE A.O. AND THERE IS NO DISPUTE AS REGARD TO SAME IN ASSESSMENT FRAMED. IN VIEW OF ABOVE EXEMPTION UNDER SECTION 54EC OF LT . ACT 1961 AS CLAIMED IN THE RETURN BE DIRECTED TO BE ALLOWED. B) THE ASSESSEE HAD INVESTED AMOUNT OF CAPITAL GAIN IN BONDS TO AVAIL THE EXEMPTION U/S 54EC OF I . T . ACT . THE ASSESSEE HAS ISSUED CHEQUE FOR PURCHASE OF BONDS ON 03/01/2009 WITHIN SIX MONTH FROM DATE OF TRANSFER . THE ASSESSEE HAD GIVEN CHEQUE TO ONE OF HIS EMPLOYEE SHRI YASHWANT ZADE FOR DEPOSITING THE SAME IN BANK . SHRI YASHWANT ZADE FORGOTTEN TO DEPOSIT THE SAID CHEQUE IN BANK AND WENT ON LEAVE FOR A MONTH AN D CHEQUE WAS WITH HIM. AFTER COMING BACK HE DEPOSITED THE CHEQUE ON 03/02/2009. THE ASSESSEE ENCLOSES HEREWITH AFFIDAVIT OF SHRI YASHWANT ZADE TO SUBSTANTIATE HIS CLAIM THAT DELAY I N DEPOSITING A CHEQUE WAS ON ACCOUNT OF HIS INADVERTENT MISTAKE. THE A SSESSEE ENCLOSES HEREWITH COPY OF BANK STATEMENT TO SHOW THAT SUFFICIENT BALANCE WAS AVAILABLE IN BANK ACCOUNT ON DATE OF ISSUE OF CHEQUE I . E. 03/01/2009 FOR PURCHASE OF BONDS. IN VIEW OF ABOVE FACTUAL POSITION SUBMITTED BY ASSESSEE EXEMPTION ULS 54EC AS CLAIMED IN THE RETURN BE DIRECTED TO BE ALLOWED. SECTION 54EC IS , BENEFICIAL PROVISION AND SHOULD BE INTERPRETED LIBERALLY . RELIANCE ON : I ) ITAT ORDER IN ITA NO , .1973/AHD/2012 IN THE CASE OF ALKABEN B. PATEL VIDE ORDER DATED 25/03/2014. 17 ITA NO. 253/NAG/2014. GR.NO.3: 1 ) ACTUAL CONSIDERATION RECEIVED IS RS . 1 02 LACS AND SAME IS CORRECTLY SHOWN. 2 ) A.O. HAS COMPUTED SALE CONSIDERATION AT NOTIONAL BASIS AT RS . 1 ,93,92,8601 - HAS NO RATIONAL AND CANNOT BE SUPPORTED UNDER ANY PROVISION OF LAW. 3 ) OBSERVATION OF CIT (A) AT PARA 5 .1 THAT UNSOLD PLOT MOVED FROM JOINT OWNERSHIP TO EXCLUSIVE OWNERSHIP FACTUALLY INCORRECT . SALE DEED . EXECUTED ON 11/05/2010 (P - 124) SHOWS ALL OWNERS AS SELLERS. 4 ) IN ASSTT . YEAR 2011 - 12 AO . HAS ASSESSED INCOME ARISING FROM BALANCE SALE OF PLOT AND IT HAS ACHIEVED FINALITY . NO JUSTIFICATION FOR AO. TO ASSESS ANY INCOME AT THE HANDS OF ASSESSEE OVER AND ABOVE SHOWN IN THE RETURN. 5 ) OBSERVATION OF CIT(A) AT PARA 5.3 THAT CONSIDERATION RECEIVED IS RS.362 LACS IS ON THE BASIS OF NO EVIDENCE ON RECORD. ON THE CONTRARY EVIDENCE ON RECORD CLEARLY ESTABLISH THAT CONSIDERATION RECEIVED BY ASSESSEE IS RS . 1 02 LACS ONLY AND IS CORRECTLY SHOWN . 6 ) CIT(A) HAS COMPUTED CONSIDERATION RECEIVED AS PER AGREEMENT DATED 12/0 3 12007 WHICH I S CANCELLED AND I S NEITHER IMPLEMENTED NOR, MATERIALIZED . 7) CIT(A) OUGHT TO HAVE DIRECTED TO ASSESS LONG TERM CAPITAL GAIN ON CONSIDERATION RECEIVED AT R. 102 LACS AS SHOWN. 8. PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 18 ITA NO. 253/NAG/2014. 9. FIRST OF ALL WE ADJUDICATE THE ISSUE AS TO WHETHER THE PROPERTY SOLD WAS A TRANSFER OF A CAPITAL ASSET OR IT WAS A BUSINESS ADVENTURE. THE UNDISPUTED FACT OF THE CASE IS THAT THE ASSESSEE HAS ACQUIRED THE SAID LAND ALONG WITH FAMILY MEMBERS AS AGRICULTURAL LAND IN 1998. THE PURPOSE AND USES OF THE LAND WAS FOR AGRICULTURE. THIS IS NOT DISPUTED. THE EXTRACT FROM 7/12 ALSO ESTABLISH THIS FACT. IN THE YEAR 2000 BECAUSE OF CHANGE IN THE DEVELOPMENT PLAN OF THE CITY OF NAGPUR BY THE MAHARASHTRA STATE GOVERNMENT THE SAID AGRICULTURAL LAND HELD BY THE ASSESSEE FELL FOR CONSIDERATION UNDER THE PROVISIONS OF URBAN LAND CEILING ACT. IN ORDER TO SAFEGUARD THE ACQUISITION OF THE SURPLUS LAND THE ASSESSEE HAD TO MAKE AN APPLICATION U/S 20 OF THE ULC ACT FOR REUSING THE S AME TO BE SOLD TO THE DEVELOPER. IN ORDER TO COMPLY WITH THE DIRECTION OF THE COMPETENT AUTHORITY, THE AGRICULTURAL LAND HAD TO BE CONVERTED INTO NON AGRICULTURAL LAND AND LAYOUT PLAN FOR SUCH LAND HAD TO BE OBTAINED FROM A STATUTORY AUTHORITY. THE AFORESA ID STEPS HAD TO BE NECESSARILY COMPLIED WITH IN ORDER TO REALISE THE VALUE OF CAPITAL ASSET HELD AND OWNED BY THE ASSESSEE. IN THIS FACTUAL SCENARIO IT IS EVIDENT THAT IN ORDER TO SAFEGUARD THE AGRICULTURAL LANDS FROM ACQUISITION UNDER LAND CEILING ACT THE ASSESSEE HAD TO PLAN AND CONVERT THIS LAND FOR NON AGRICULTURAL PURPOSE IN ORDER TO REALISE THE VALUE OF THE CAPITAL ASSET. HENCE THE ACT OF THE ASSESSEE IN THIS CASE CANNOT BE SAID TO BE AN ADVENTURE IN THE NATURE OF TRADE. IT WAS AN AC T PURELY TO SAFEGU ARD AND REALISE THE VALUE OF T HE CAPITAL ASSET WHICH WOULD OTHERWISE HAVE FALLEN IN THE LAND CEILING ACT. HENCE IN OUR CONSIDERED OPINION THE ADVERSE INFERENCE DRAWN BY THE AUTHORITIES BELOW THAT SINCE THE ASSESSEE HAS SOUGHT PERMISSION TO CONVERT THE LAND FOR NON AGRICULTURAL PURPOSES TO BE SOLD TO A DEVELOPER THE TRANSACTION IS AN ADVENTURE IN NATURE OF TRADE IS NOT CORRECT . ON THE SPECIFIC FACTS WHICH LED TO THE ASSESSEE SEEKING THE PERMISSION , ONE CANNOT DENY THE SUBSTANCE THAT THE ASSESSEES ACTION W AS TO PROTECT THE LAND FROM FALLING UNDER THE AMBIT OF LAND CEILING ACT AND THE ACTION OF THE ASSESSEE WAS ONLY MEANT TO SAFEGUARD THE VALUE OF ASSESSEES CAPITAL ASSET. HENCE WE HOLD THAT THE LAND SOLD WAS A TRANSFER OF CAPITAL ASSET AND THE AUTHORITIES B ELOW HAVE ERRED IN 19 ITA NO. 253/NAG/2014. HOLDING THE TRANSACTION AS BUSINESS TRANSACTION. 10. WE FURTHER NOTE THAT IN THE ASSESSMENT ORDER OF ANOTHER CO - OWNER SMT. CHHAYA CHIMURKAR, THE GAIN HAS BEEN SHOWN AS CAPITAL GAIN AND THE REVENUE HAS ACCEPTED THE SAME. HENCE WE AGREE WI TH THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE THAT THE REVENUE CANNOT TAKE CONTRARY STANDS ON SIMILAR FACTS IN THE HANDS OF DIFFERENT CO - OWNERS. 11. NOW WE DEAL WITH THE LEARNED CIT(APPEALS) HOLDING THAT THE CONSIDERATION RECEIVED IN THE HANDS OF THE ASSESSEE IS RS.36 2 LAKHS INSTEAD OF THE ACTUAL CONSIDERATION OF RS.102 LAKHS. 12. AS PER THE FACTS OF THE CASE THE LAND IS HELD AS CO - OWNERSHIP PROPERTY. AS PER THE AGREEMENT BETWEEN THE C O - OWNERS THE ORIGINAL DEAL WAS FIXED AT RS.5.60 CRORES FOR 50.800 SQ.MTS. ON WHICH THE ASSESSEE WAS TO RECEIVE RS.3.62 CRORES. HOWEVER, THESE DEALS DID NOT MATERIALISE. SUBSEQUENTLY SALE DEED WAS EXECUTED BETWEEN THE OWNERS OF THE PROPERTY AND THE PURCHASER FOR 13837.75 SQ.MTS. FOR A CONSIDERATION OF RS.3 CRO RES. ON THE BASIS OF THIS TRANSACTION THE ASSESSEE DECLARED GROSS CONSIDERATION RECEIPT AT RS.1,10,00,000/ - THE ASSESSEE HAD PAID RS.1,90,00,000/ - OUT OF THE TOTAL RECEIPT OF RS.3 CRORES TO THE OTHER PARTIES. THESE ALL TRANSACTIONS WERE BACKED BY AGREEMENT AMONG THE CO - OWNERS. SINCE THE CO - OWNERS WERE IN A FAMILY, THE AGREEMENT WAS TERMED AS FAMILY AGREEMENT. NOW THIS ACTION OF THE ASSESSEE HAS NOT BEEN ACCEPTED BY THE AUTHORITIES BELOW ON THE PLEA THAT THE SOURCE OF ACQUISITION IN THE HANDS OF INDIVIDUAL CO - OWNERS HAS NOT BEEN ESTABLISHED AND THE AUTHORITIES BELOW HAVE TAKEN THE FIRST PROPOSED DEAL AS THE BASIS FOR ALLOCATING THE ACTUAL RECEIPT. HERE WE FIND THAT THE ORIGINAL DEED WAS ALSO BASED UPON A FAMILY AGREEMENT. SUBSEQUENT DEAL WAS ALSO BASED UPON A FAMILY AGREEMENT. THERE IS NO LAW THAT A FAMILY AGREEMENT ONCE ENTERED INTO CANNOT BE CHANGED . HENCE IT IS NOT UNDERSTOOD AS TO HOW THE AUTHORITIES BELOW 20 ITA NO. 253/NAG/2014. HAVE ACCEPTED THE RATIO OF OWNERSHIP ON THE BASIS OF FIRST FACTUAL AGREEMENT AND HAVE DECLINED TO A CCEPT THE CHANGE IN THE OWNERSHIP RATIO PURSUANT TO THE SUBSEQUENTLY FAMILY AGREEMENT RATIO. IN OUR CONSIDERED OPINION THE COMMON LAW MAXIM APPROBATE AND REPROBATE HERE COMES TO THE RESCUE OF THE ASSESSEE. WHEN THE FIRST FAMILY AGREEMENT ENTERED INTO BY TH E FAMILY MEMBERS HAVE BEEN FOUND TO BE ACCEPTABLE, THERE IS NO REASON WHY THE SUBSEQUENT FAMILY AGREEMENT SHOULD NOT BE ACCEPTED. HENC E IN OUR CONSIDERED OPINION THERE IS NO REASON WHY THE SUBSEQUENT AGREEMENT SHOULD BE DISCARDED. LEARNED CIT(APPEALS) HAS ALSO PARTIALLY ACCEPTED THIS ASPECT. HOWEVER HE HAS HELD THAT APART FROM RS.1.02 CRORE ACTUALLY RECEIVED BY THE ASSESSEE, THE ASSESSEE IS ALSO LIABLE TO THE VALUE OF THE UNSOLD LAND WHICH HAS COME TO THE ASSESSEES SHARE ON THE BASIS OF THE SUBSEQUENT AGR EEMENT. HENCE LEARNED CIT(APPEALS) HAS HELD THAT THE TOTAL CONSIDERATION IN THE HANDS OF THE ASSESSEE SHOULD BE RS.362 LAKHS. 13. NOW WE FIND THAT FIRSTLY AS PER OUR FINDING HEREIN ABOVE, THE RECEIPT IN THE HANDS OF THE ASSESSEE WHICH IS AS PER THE FAMILY AGREEMENT NEED NOT BE DISTURBED FOR THE REASONS MENTIONED HEREIN ABOVE. NOW EVEN IF FOR ARGUMENT SAKE IT IS ACCEPTED THAT THE VALUE OF UNSOLD LAND SHOULD BE ADDED IN THE HANDS OF THE ASSESSEE THEN THIS THAT AT BEST THEORETICALLY CAN BE IN THE NATURE OF G IFT /RELINQUISHMENT BY THE OTHER CO - OWNERS IN FAVOUR OF THE ASSESSEE. IN THIS CONNECTION WE NOTE THAT AS PER THE EXTANT PROVISIONS OF THE ACT THE TRANSFER OF IMMOVABLE PROPERTY WITHOUT CONSIDERATION WAS NOT EXIGIBLE TO TAXATION. IT WAS ONLY BY WAY OF SECTIO N 56(7) THE TRANSFER OF IMMOVABLE PROPERTY WITHOUT CONSIDERATION WAS BROUGHT UNDER THE AMBIT OF TAXATION. THIS WAS FROM ON OR AFTER FIRST DAY OF OCTOBER, 2009. SINCE THE IMPUGNED TRANSACTIONS ARE PRIOR TO THIS DATE, THE LEARNED CIT(APPEALS) ACTION OF HOLD ING THE VALUE OF UNSOLD LAND AS EXIGIBLE TO TAX IN THE HANDS OF THE ASSESSEE IS WITHOUT ANY LEGAL BASIS AND IS LIABLE TO BE SET ASIDE. WE FURTHER NOTE THAT EVEN IN SECTION 56(7), EX CEPTIONS ARE CARVED OUT FOR TRANSFERS BETWEEN RELATIVES . L EARNED COUNSEL OF THE ASSESSEE HAS 21 ITA NO. 253/NAG/2014. AS S ERTED THAT THIS TRANSFER WAS BETWEEN RELATIVES. HENCE EVEN IN THAT ASSUMPTION, SECTION 56(7) WOULD NOT BE ATTRACTED. BE AS IT MAY, IN OUR CONSIDERED OPINION, SINCE UNDER THE EXTANT PROVISIONS, TRANSFER OF IMMOVABLE PRO PERTY WITHOUT CONSIDERATION WAS NOT EXIGIBLE TO TAX IN THE HANDS OF THE ASSESSEE . THE LEARNED CIT(APPEALS) ACTION OF HOLDING THE UNSOLD LAND WHICH BECAME THE SHARE OF THE ASSESSEE AS PER SUBSEQUENT AGREEMENT IS DEVOID OF ANY LEGAL BASIS AS PER THE EXTANT PROVISION OF THE ACT . IT IS FURTHER NOTED THAT IN ASSESSMENT YEAR 2011 - 12 THE AO HAS ASSESSED INCOME ARISING FROM BALANCE SALE OF PLOT AND IT HAS ACHIEVED FINALITY. HENCE WE HOLD THAT THE CIT(APPEALS) ACTION IS CONTRARY TO THE STAND TAKEN BY THE REVEN UE. HENCE WE SET ASIDE THE SAME. HENCE WE HOLD THAT THE ASSESSEE IS ONLY LIABLE FOR THE CONSIDERATION OF RS.102 LAKHS RECEIVED BY HIM. ACCORDINGLY THE BALANCE ADDITION OF RS. 362 LAKHS MINUS RS.102 LAKHS BEING THE VALUE DETERMINED BY THE LEARNED CIT(APPEA LS) TO BE THAT OF UNSOLD LAND IS LIABLE TO BE DELETED AND HENCE WE DIRECT THE SAME TO BE DELETED. 14. NOW WE COME TO THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE. THE ADDITIONAL GROUNDS IN GROUND NO. 1 A ND 2 RELATE TO EXEMPTION CLAIMED BY THE ASSESSEE U/S 54F AND 54EC. AS REGARDS THE DEDUCTION CLAIMED U/S 54F THE SAME WAS BEFORE THE A O WHO HAS NOT DEALT WITH THE SAME SINCE HE HAS HELD THAT IT WAS A BUSINESS TRANSACTION. NOW SINCE WE ARE HOLDING THAT THE TRANSACTION CAME UNDER THE AMBIT OF CAPITAL GAIN TRAN SACTION, THE ADDITIONAL GROUND NO. 1 SOUGHT TO BE RAISED BY THE ASSESSEE BECOMES A LEGAL GROUND LIABLE TO BE ADMITTED. ACCORDINGLY WE ADMIT ADDITIONAL GROUND NO.1 ON THE ANVIL OF HONBLE APEX COURT DECISION IN THE CASE OF NTPC LTD. SINCE THE AO HAS NOT GIV EN A FINDING ON THIS ISSUE, WE REMIT ADDITIONAL GROUND NO.1 TO THE FILE OF THE AO. THE AO SHALL CONSIDER THE SAME AND DECIDE A S PER LAW AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 22 ITA NO. 253/NAG/2014. 15. ADDITIONAL GROUND NO. 2 IS LINKED TO THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE. BY WAY OF ADDITIONAL GROUND NO. 2 AND THE ADDITIONAL EVIDENCES THE ASSESSEE SEEKS CLAIM OF EXEMPTION U/S 54EC. WE FIND THAT THE ADDITIONAL GROUND RELATE TO THE ASSESSEES INVESTMENT IN BONDS COMING UNDER THE AMBIT OF EX EMPTION U/S 54EC. TO SUPPORT THE ADDITIONAL GROUND THE ASSESSEE HAS NOW SUBMITTED AFFIDAVIT FROM THE CONCERNED EMPLOYEE FOR THE PLEA THAT THE DEPOSIT COULD NOT MATERIALISE WITHIN THE DUE TIME U NDER BONAFIDE CIRCUMSTANCES. FURTHER THE ASSESSEES PLEA IS TH AT THESE ARE BENEFICIA L PROVISIONS AND AS PER CASE LAWS FROM HONBLE APEX COURT SUCH PROVISIONS SHOULD BE LIBERALLY CONSTRUED. 16. UPON CAREFUL CONSIDERATION WE FIND THAT BOTH THE ADDITIONAL GROUND NO. 2 AND THE ADDITIONAL EVIDENCES DESERVE TO BE ADMITT ED BUT THE SAME NEED FACTUAL VERIFICATION AT THE LEVEL OF THE AO. HENCE GROUND NO. 2 AND THE ADDITIONAL EVIDENCES ARE ALSO ADMITTED AND ARE BEING REMITTED TO THE FILE OF THE AO. THE AO SHALL CONSIDER THE SAME AFRESH AFTER GIVING THE ASSESSEE PROPER OPPORT UNITY OF BEING HEARD. 17. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF APRIL , 2017. SD/ SD/ (RAM LAL NEGI) ( SHAMIM YAHYA) JUDICIAL MEMBER. ACOUNTANT MEMBER. NAGPUR, DATED: 3 RD APRIL , 2017.