M/s. Marigold Mechandise (P) Ltd., New Delhi V. DCIT, Faridabad

ITA 2667/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69701 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 21-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN P RASAD
• Assessee Lawyers: ASHWANI TANEJA; DR RAKESH GUPTA
• Keywords: Rejection of books of accounts; Capital asset; Gift; Business income; Revision of order; Search and seizure; Earning of tax free income; Question of law; Difference of opinion; Competent authority; Assessment record; Block assessment; Notional interest; Capital receipt; Onus to prove; Revised return; Change of opinion; Reassessment proceedings
• Section: 143(3); 2(14); 153A; 139(5); 145; 144; 2; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA ITA NOS. 2666 & 2667/DEL/2013 A.YRS. 2008-09 & 2007-08 M/S MARIGOLD MERCHANDISE (P) LTD., VS. DCIT, CEN. CIRCLE, SHOP NO. 4/36 DDA MARKET, FARIDABAD. DAKSHINPURI EXTENSION, NEW DELHI-110062. ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : DR. RAKESH GUPTA ADV. & SHRI ASHWANI TANEJA ADV. RESPONDENT BY : SHRI GUNJAN PRASAD CIT (DR) O R D E R PER R.P. TOLANI, J.M: : THESE ARE TWO ASSESSEES APPEALS AGAINST SEPARATE O RDERS OF CIT(A) RELATING TO A.Y. 2007-08 AND 2008-09. COMMON GROUND S RAISED ARE AS UNDER: (I) ADDITIONS MADE U/S 153A ARE BAD IN LAW AND ON FACTS INASMUCH A NONE OF THEM IS BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH CONDUCTED ON 17-9-2008 ON KAMD HENU GROUP AND THUS ADDITIONS ARE BEYOND THE SCOPE OF SECTION 153A. (II) THE LOWER AUTHORITIES ERRED IN HOLDING THAT THE GAI NS ON SALE OF AGRICULTURE LAND IN QUESTION WHICH ARE EXEMPT BY WA Y OF EXPLANATION 1 TO SECTION2(1A) OF THE INCOME-TAX ACT , 1961 READ WITH CLAUSE (II) OR (III) OF SUB-SECTION (14) OF SE CTION 2 AS ADVENTURE IN THE NATURE OF TRADE AND THEREBY TAXING THE SAME INCOME AS BUSINESS INCOME. 2 (III) THE LAND IN QUESTION ARE OUTSIDE THE MUNICIPAL LIMI TS AS PRESCRIBED BY SECTION 2(14)(II) OR (III). (IV) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN UPHOLDING THE INVOKING OF PROVISIONS OF SECTION 145 (3) AND FRAMING OF THE ASSESSMENT U/S 144. 1.1. ISSUES, FACTS AND CONCLUSIONS BEING SAME FOR B OTH THE YEARS, THEY ARE DISPOSED OF BY COMMON ORDER FOR THE SAKE OF CONVENI ENCE. 2. BRIEF FACTS ARE : SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED ON 17- 9-2008 IN ASSESSEES PREMISES WHICH IS REFERRED TO BELONGING TO ONE BASANT BANSAL, WHICH IN TURN HAS BEEN NAMED AS SUB-GROUP OF KAMDHENU GROUP. DURING THE COURSE OF SEARCH NO SURRENDER OF UNDISCL OSED INCOME WAS MADE IN THE GROUP. NOTICE U/S 153A WAS ISSUED ON 9-3-2010. IN RESPONSE THERETO THE ASSESSEE FILED SAME RETURNS AS WERE FILED EARLIER I .E. DECLARING LOSS OF RS. 2,73,866/- FOR A.Y. 2007-08 AND LOSS OF RS. 6,14,90 8/- FOR A.Y. 2008-09. 2.1. DURING BOTH THE YEARS THE ASSESSEE HAD SOLD LA NDS CLAIMED TO BE AGRICULTURAL LANDS, WHICH ARE HELD AS STOCK IN TRAD E. HUGE GAINS ON SALE OF SUCH LANDS WERE DECLARED WHICH ARE CLAIMED TO BE AG RICULTURE LANDS. THUS, THE FOLLOWING GAINS WERE CLAIMED BY THE ASSESSEE AS EXEMPT AS AGRICULTURE INCOME: ASSTT. YR. AMOUNT. 2007-08 RS. 31,40,73,445/- 2008-09 RS. 5,83,13,400/- 2.2. ASSESSING OFFICER DURING THE COURSE OF ASSESSM ENT U/S 153A PROPOSED AS TO WHY INSTEAD OF EXEMPT AGRICULTURAL INCOME AS CLAIMED, IT BE HELD AS ADVENTURE IN THE NATURE OF TRADE AND COMMERCE AND T HE GAINS THEREON BE TREATED AS BUSINESS INCOME. ASSESSEE FILED VARIOUS REPLIES IN THIS BEHALF 3 CLAIMING THAT THE LAND UNDER CONSIDERATION WAS AGRI CULTURAL LAND AND NOT A CAPITAL ASSET WITHIN THE MEANING OF SEC. 2(14) OF T HE INCOME-TAX ACT. 3.3 THE ASSESSEE HAS REPLIED VIDE ITS LETTER DATE D 06.12.2010 THAT THE LAND UNDER ) CONSIDERATION IS AGRICULTURAL LAND WHICH IS NOT A CAPITAL ASSET WITHIN THE MEANING OF THE DEFIN ITION OF SECTION 2(14) OF THE INCOME-TAX ACT, 1961. 2(LA): AGRICULTURE INCOME: 'AGRICULTURAL INCOME' MEANS- [(A) ANY RENT OR REVENUE DERIVED FROM LAND WHICH I S SITUATED IN INDIA AND IS USED FOR AGRICULTURAL PURPOSES;] (B) ANY INCOME DERIVED FROM SUCH LAND BY (I) AGRICULTURE, (I )----------------- FURTHER EXPLANATION 1 TO SEC. 2(LA) WHICH WAS INSERTED BY THE FINANCE ACT' 1989 W.E.F: 01.04.1970 PROVIDES AS UNDER: FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT REVENUE DERIVED FROM LAND SHALL NOT INCLUDE AND SHALL BE DE EMED NEVER TO HAVE INCLUDED ANY INCOME ARISING FROM THE TRANSFER OF ANY LAND REFERRED TO IN ITEM (A) OR ITEM (B) OF SUB-DOU SE (III) OF CLAUSE (14) OF THIS SECTION]. FROM THE ABOVE, IT IS CLEAR THAT AGRICULTURAL INCOME IS EXEMPT FROM LAND U/S 10(1) OF THE INCOME-TAX ACT' 1961 AND ANY KIND OF INCOME RELATING TO AGRICULTURE WAS EXEMPT FROM T AX TILL THE YEAR 1989 WHEN THE GOVERNMENT OF INCOME HAS INSERTED THE EXPLANATION 1 TO SECTION 2(1A) OF THE ACT W.R.E.F 01.04.1970 TO TAX CERTAIN TYPES OF RECEIPTS RELATING TO AGRICULTURE. AS PER THE EXPLANATION, THE INCOME ARISING FROM THE TRANSFER O F LAND REFERRED TO IN ITEM (A) OR (B) OF SUB CLAUSE (III) OF CLAUSE (14) OF SECTION 2 WOULD NOT BE INCLUDED AS AGRICULTURAL INCOME. 4 THEREFORE, THE LAND WHICH ARE NOT COVERED IN ITEM ( A) OR (B) OF SUB CLAUSE (III) OF CLAUSE (14) OF SECTION 2 ARE STILL OUTSIDE THE SCOPE OF EXPLANATION 1 TO SECTION 2(1A) OF THE INCOME-TAX ACT AND NOT SUBJECT TO TAX EVEN TODAY. SECTION 2(1)(III) HAS BEEN REPRODUCED HEREIN BELOW, WHICH PROVIDES AS UNDER: 14) 'CAPITAL ASSET: MEANS PROPERTY OF ANY KIND HEL D BY AN ASSESSEE, WHETHER OR NOT CONNECTED WITH HIS BUSINES S OR PROFESSION, BUT DOES NOT INCLUDE - .......................... [(III) AGRICULTURAL LAND IN INDIA, NOT BEING LAND SITUATED - (A) IN ANY AREA WHICH IS COMPRISED WITHIN THE JURI SDICTION OF A MUNICIPALITY (WHETHER KNOWN AS A MUNICIPALITY, MU NICIPAL CORPORATION, NOTIFIED AREA COMMITTEE, TOWN AREA COM MITTEE, TOWN COMMITTEE , OR BY ANY OTHER NAME) OR A CANTONM ENT BOARD AND WHICH HAS A POPULATION OF NOT LESS THAN TEA THO USAND ACCORDING TO THE LAST PRECEDING CENSUS OF WHICH THE RELEVANT FIGURES HAVE BEEN PUBLISHED BEFORE THE FIRST DAY OF THE PREVIOUS YEAR; OR (B) IN ANY AREA WITHIN SUCH DISTANCE, NOT BEING MO RE THAN EIGHT KILOMETERS, FROM THE LOCAL LIMITS OF ANY MUNI CIPALITY OR CANTONMENT BOARD REFERRED TO IN ITEM (A), AS THE CE NTRAL GOVERNMENT MAY, HAVING REGARD TO THE EXTEND OF, AND SCOPE FOR, URBANIZATION OF THAT AREA AND OTHER RELEVANT CONSID ERATIONS, SPECIFY IN THIS BEHALF BY NOTIFICATION IN THE OFFIC IAL GAZETTE;] IN VIEW OF THE ABOVE, IT IS CLEAR THAT LAND, WHICH IS SITUATED WITHIN THE JURISDICTION OF MUNICIPALITY OR CANTONMENT BOARD, WHICH HAS A POPULATION OF NOT LESS THAN TEN THOUSAN D OR LAND SITUATED IN ANY AREA WITHIN EIGHT KILOMETERS FROM T HE LOCAL LIMITS OF ANY MUNICIPALITY OR CANTONMENT BOARD WOUL D BE TREATED AS CAPITAL ASSETS ONLY AND WOULD BE SUBJECT TO TAX ONLY. AGRICULTURE LAND WHICH IS OUTSIDE THE JURISDICTION OF MUNICIPALITY OR CANTONMENT BOARD HAVING A POPULATIO N OF LESS THAN TEN THOUSAND OR LAND SITUATED OUTSIDE EIGHT KI LOMETER 5 FROM LOCAL LIMITS OF MUNICIPALITY WOULD BE OUTSIDE THE SCOPE OF CAPITAL ASSETS AND WOULD NOT BE SUBJECT TO TAX AT A LL. IN THIS REGARD, ASSESSEE COMPANY PLACED ITS RELIANC E ON THE FOLLOWING RULINGS: [1976] 103 ITR 785 (SC) TEA ESTATE INDIA (P.) LTD. V, CIT. [1993} 204 ITR 631 (SC) SMT. SARIFABIBI MOHMED IBRAHIM V. CIT. [1987} 167 ITR 136 (KERALA) CITV. SMT. T.K. SARALA DEVI. [1997} 225 ITR 510 (KER.) HIGH COURT OF KERALA CLT V. R. KRISHNARJUNAN. [2010} 124 ITO 1 (AHD.) RAMJIBHAI P. CHAUDHRY V. DC/T. [2002} 257 ITR 756 (DEL), CIT V. DEEP CHAND. [1992} 194 ITR 125 (KER) C/T V. MURALI LODGE.' 2.3. THE SUBMISSIONS OF THE ASSESSEE WERE REJECTED BY THE ASSESSING OFFICER BROADLY ON THE FOLLOWING REASONING: (I) THE MERE FACT THAT THIS LAND WAS MENTIONED AS AGRIC ULTURAL LAND IN REVENUE RECORD DOES NOT BY ITSELF MAKE THE GAINS TO BE EXEMPT AS AGRICULTURE INCOME. THE ASSESSEE HAS FAILED TO SHOW THAT THE LAND WAS ACTUALLY USED FOR AGRICULTURAL PURPOSES. IT MAY BE TRUE THAT THE LAND PURCHASED BY THE ASSESSEE WAS AGRICULTURAL, B UT ASSESSEE HAS ADMITTED THAT IT WAS FOR THE PURPOSE OF PURCHASE AN D SALE OF LAND AND THE LAND WAS PURCHASED NOT FOR CARRYING OUT AN Y AGRICULTURAL ACTIVITY BUT FOR BUSINESS PURPOSES. (II) THE CASE LAW CITED BY THE ASSESSEE THAT AGRICULTURA L LAND WAS NOT A CAPITAL ASSET IN TERMS OF SEC. 2(14) AND THE PROFIT S ARISING FROM THE SALE THEREOF WAS EXEMPT INCOME, HAS NOT BEEN DISPU TED. HOWEVER, 6 IN ASSESSEES CASE IT IS TAXABLE AS THE ASSESSEE IS INTO BUSINESS OF PURCHASE AND SALE OF AGRICULTURAL LAND WHICH FORMED THE REGULAR BUSINESS ACTIVITY OF THE ASSESSEE COMPANY. THEREFOR E, THE INCOME WAS TO BE HELD AS ADVENTURE IN THE NATURE OF TRADE AND PROFIT AND GAINS THERE FROM WAS LIABLE FOR TAXATION AS BUSINE SS INCOME WHETHER FROM SALE OF AGRICULTURAL LAND OR NON-AGRIC ULTURAL LAND. (III) LAND UNDER CONSIDERATION SITUATED AT VILLAGE BEHRAM PUR, DISTT.- GURGAON, HARYANA WAS PURCHASED IN THE YEAR 2005- 06, A PART OF WHICH WAS SOLD IN THE YEAR 2006-07 AN D IN 2007-08 RELATING TO ASSESSMENT YEAR UNDER CONSIDERA TION. ANOTHER LAND SITUATED AT VILLAGE MAIDAWAS, DISTT.- GURGAON, HARYANA SOLD DURING THE YEAR WAS PURCHASED IN THE P RECEDING YEAR. THEREFORE, IT IS APPARENT FROM THE PERIOD OF HOLDING ALSO THAT THE INTENTION OF THE ASSESSEE WAS NOT TO PERFORM ANY AGRICULTURAL ACTIVITY ON THE LAND. ALSO, IT IS NOWH ERE MENTIONED IN THE MOA OF THE COMPANY THAT EITHER MAI N OBJECT OR ANCILLARY OBJECT OF THE COMPANY WAS AGRIC ULTURE. MOREOVER, IT IS NOT IMPORTANT WHAT IS PREACHED BUT MORE IMPORTANT IS WHAT IS PROFESSED. IN THE CASE OF THE ASSESSEE, IT HAS BEEN SEEN THAT THE COMPANY SINCE ITS INCEPTION IN THE YEAR 2003-04 HAS BEEN SOLELY WORKING WITH THE INTEN TION TO ACQUIRE LAND IN AND AROUND GURGAON, HARYANA AND THE N EITHER SELL IT AT PROFIT OR DEVELOP A LAND PROJECT ON IT. 2.4. THE ASSESSING OFFICER THEN REFERRED TO THE FAC TS OF OTHER 11 COMPANIES OF THE GROUP WHOSE MAJOR SHAREHOLDERS AND DIRECTORS ARE REFERRED TO BE SHRI BASANT BANSAL AND SHRI ROOP BANSAL. ACCORDING TO AS SESSING OFFICER, A 7 HOLISTIC VIEW OF THE FACTS AND CIRCUMSTANCES WAS TO BE TAKEN WHICH IN SUM AND SUBSTANCE ARE AS FOLLOWS: (I) THE VARIOUS GROUP COMPANIES AND THE ABOVE TWO PERSO NS ALONG WITH SMT. ABHA BANSAL AND SHRI PANKAJ BANSAL HAD PU RCHASED THESE LANDS AND THE PROMOTERS WERE WAITING TO STRIK E DEAL CLAIMING THE LAND TO BE AGRICULTURAL LAND EXCEPT ONE COMPANY M/S MISTY MEADOWS PVT. LTD. WHICH HAD BUSINESS OTHER THAN BUY ING AND SELLING OF AGRICULTURAL LAND. (II) VARIOUS COMPANIES HAVE BEEN FLOATED BY BASANT BANSA L FAMILY TO AVOID STATUTORY RESTRICTIONS ABOUT THE HOLDING OF A CQUIRING OF LAND. IT IS CLAIMED BY ASSESSING OFFICER THAT BASANT BANS AL FAMILY STARTED THEIR CAREER IN THE FIELD AS LAND BUYING AGENT FO R M/S EMAAR MGF GROUP. BESIDES, THEY ALSO FLOATED VARIOUS OWN C OMPANIES AND PURCHASED VARIOUS LANDS AS ARE EVIDENCED FROM THE S ALE-DEEDS MENTIONED IN THE ORDER. (III) ALL THE COMPANIES OF THE GROUP WERE ENGAGED IN ACQU IRING LAND FOR THE PURPOSE OF DEVELOPING REAL ESTATE PROJECTS OR S ELLING THE LAND ITSELF ON PROFIT. (IV) THE CONDUCT OF THE GROUP COMPANIES IS SHOWN TO BE P ROMINENT ACTIVITY OF SALE AND PURCHASE OF AGRICULTURAL LAND. IT WAS NOT MEANT FOR AGRICULTURAL ACTIVITY BUT TO SELL OR BUILD TO E ARN PROFITS. (V) M/S M3M INDIA LTD., FLAGSHIP COMPANY OF THE GROUP W AS TO DEVELOP MEGA RESIDENTIAL COMPLEX IN THE NAME OF M3M GOLF ESTATES AND THE MOU WAS SIGNED ON 4-4-2007. (VI) THUS, FACTS AND SUBMISSION OF THE ASSESSEE COMPANY AS DISCUSSED ABOVE VERY WELL ESTABLISH THAT SOLE AIM OF TRANSACT ION IN AGRICULTURAL LAND BY THE ASSESSEE COMPANY AND OTHER COMPANIES OF 8 THE GROUP IS IN THE NATURE OF BUSINESS AND NOT FOR AGRICULTURE. THE INTENT AND PURPOSE FOR PURCHASING THE LAND BY THE S AID COMPANY AND THAN SELLING IT OR PART THEREOF WITHIN A SHORT PERIOD OF TIME IS CERTAINLY NOT AGRICULTURE. THE FACT THAT THE SAID C OMPANY AND OTHER COMPANIES AS DISCUSSED EARLIER HAVE HUGE LAND BANKS SPEAK VOLUME OF THE INTENT/PURPOSE/USAGE OF THE SAID LAND BEING A TRADING ASSET. IT IS AMPLY CLEAR THAT IT IS NOT FOR AGRICULTURE BUT T O FURTHER DEVELOP THE SAME FOR COMMERCIAL VENTURE EITHER BY DEVELOPIN G THEMSELVES OR BY SELLING THE SAME TO SOME OTHER COMPANY WHO WO ULD CARRY OUT IT'S COMMERCIAL EXPLOITATION IN FUTURE. SO THE PROF IT FROM SALE OF SUCH A LAND CAN BY NO MEANS QUALIFY FOR EXEMPTION. (VII) MOREOVER, LAND IN AND AROUND AT GURGAON IS SO COSTL Y THAT TO PURCHASE LAND FOR AGRICULTURE WOULD BE VERY IMPRUDE NT. THEREFORE, THE ONLY LOGICAL CONCLUSION THAT CAN BE DERIVED FRO M THE FACTS AND CONDUCT OF THE ASSESSEE COMPANY IS THAT THE ASSESSE E COMPANY HAS PURCHASED THE AGRICULTURAL LAND AS A PART OF ITS BU SINESS AND WITH THE INTENTION TO SELL THE SAME AT PROFIT. HON'BLE S UPREME COURT IN ITS JUDGMENT IN THE CASE OF CIT VS M/S SUTJEJ COTTON MILLS SUPPLY AGENCY LT. 100 ITR 706 HAS HELD THAT 'IF THE DOMINANT INTENTION WAS TO CARRY ON AN ADVENTURE IN THE NATURE OF BUSINESS, THE PROFIT CAN BE TAXED '. SINCE IT IS PROVED THAT THE INTENTION OF THE ASSESSEE WAS TO EARN PROFIT FROM T RANSACTION OF PURCHASE AND SALE OF AGRICULTURAL LAND, PROFIT EARN ED CAN BE TAXED FROM SALE OF SUCH AGRICULTURAL LAND AS BUSINESS INC OME. (VIII) THE ASSESSEE HAS TREATED THE AGRICULTURAL LAND AS F IXED ASSET IN ITS BOOKS OF ACCOUNT, THE RECEIPTS ON SALE OF IT AS CAP ITAL RECEIPT AND THE RESULTANT PROFIT HAS BEEN CLAIMED EXEMPT. HOWEV ER, IN VIEW OF 9 THE FACT MENTIONED IN PARAS ABOVE, RECEIPT ON SALE OF AGRICULTURAL LAND IS TO BE CONSIDERED AS REVENUE RECEIPT. ASSESS ING OFFICER HELD THAT BOOKS ARE INCORRECTLY WRITTEN AND LIABLE TO BE REJECTED. IT IS A WELL SETTLED PRINCIPLE THAT THE BOOKS OF ACCOUNT SH OULD BE WRITTEN TO GIVE TRUE AND FAIR PICTURE OF THE AFFAIRS OF THE BUSINESS OF THE ASSESSEE. SECTION 145(3) OF THE LT. ACT CATEGORICAL LY STATES THAT WHEN THE AO IS NOT SATISFIED ABOUT THE CORRECTNESS OR COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE OR WHERE THE METHOD OF ACCOUNTING PROVIDED IN SUB-SECTION (1) OF SECTION 145 OR ACCOU NTING STANDARDS AS NOTIFIED UNDER SUB SECTION (2) OF SECTION 145 HA VE NOT BEEN REGULARLY FOLLOWED BY THE ASSESSEE, THE AO MAY MAKE AN ASSESSMENT IN THE MANNER PROVIDED IN SECTION 144 OF THE ACT. ASSESSING OFFICER THUS HELD THAT THE ASSESSEE HAS F AILED TO PRESENT A TRUE & FAIR PICTURE OF ACCOUNTS BY TREATING THE REV ENUE RECEIPTS AS CAPITAL RECEIPTS. AS SUCH THE ASSESSEE HAS FAILED T O WORK OUT THE PROFITS IN A CORRECT MANNER. ACCORDING TO ASSESSING OFFICER HE WAS LEFT WITH NO ALTERNATIVE BUT TO INVOKE THE PROVISIO NS OF SECTION 145(3) OF THE LT. ACT & REJECT THE BOOKS OF ACCOUNTS AND MAKE THE ASSESSMENT OF INCOME OF THE ASSESSEE IN THE MANNER PROVIDED IN SECTION 144 OF THE ACT. 2.5. FOR REJECTING BOOKS OF ACCOUNT, ASSESSING OFFI CER FURTHER RELIED ON THE RATIO OF DECISIONS OF HONBLE SUPREME COURT IN THE CASES OF M/S CIT VS. M/S SUTLEJ COTTON MILLS LTD. 116 ITR 1 (SC); AND KEDARN ATH JUTE MANUFACTURING CO. LTD. VS. CIT 82 ITR 363 (SC) FOR THE PROPOSITIO N THAT THE ASSESSEES ENTITLEMENT TO A PARTICULAR DEDUCTION WILL DEPEND O N THE RELEVANT PROVISIONS OF LAW AND NOT ON THE VIEW WHICH THE ASSESSEE MAY T AKE ABOUT ITS RIGHT AND THE EXISTENCE OR ABSENCE OF ENTRIES IN THE BOOKS OF ACCOUNT CANNOT BE 10 DECISIVE IN THE MATTER. BASED ON THESE OBSERVATIONS , THE ASSESSING OFFICER MADE THE IMPUGNED ADDITIONS. 2.6. AGGRIEVED, ASSESSEE PREFERRED FIRST APPEAL BEF ORE THE CIT(A) CHALLENGING THE ADDITIONS BEING OUTSIDE THE SCOPE O F SECTION 153A OF THE ACT, ON FOLLOWING ISSUES: (I) NO INCRIMINATING MATERIAL EXCEPT THE REGISTERED SAL E DEEDS, WHICH WERE ALREADY DISCLOSED AND DISCUSSED IN THE REGULAR ASSESSMENT, WERE FOUND DURING THE COURSE OF SEARCH; (II) THE ASSESSING OFFICER ERRED IN RESORTING TO PROVISI ONS OF SEC. 145(3) AND MAKING ASSESSMENT U/S 144 OF THE ACT. (III) PROFIT ON SALE OF AGRICULTURAL LANDS IN QUESTION WA S NOT TAXABLE IN VIEW OF EXPLANATION 1 TO SECTION 2(1A) READ WITH SE CTION 2(14)(II) OR (III) OF THE I.T. ACT. (IV) ASSESSING OFFICER ERRED IN HOLDING THAT THE AGRICUL TURAL LAND SITUATED OUTSIDE THE SPECIFIED MUNICIPAL LIMITS WERE NOT CA PITAL ASSETS. (V) ASSESSING OFFICER ERRED IN TREATING THE SALE OF AGR ICULTURAL LAND BEING EXEMPT AND TAXING IT TO BE BUSINESS INCOME AS ADVENTURE IN THE NATURE OF THE TRADE 2.7. APROPOS THE FIRST ISSUE I.E. SCOPE OF SEC. 153 A AND EFFECT ON BLOCK ASSESSMENT OF ANY INCRIMINATING MATERIAL NOT BEING FOUND DURING THE COURSE OF SEARCH, 2 ISSUES WERE RAISED BEFORE CIT(A): (I) THE ASSESSMENTS IN THE CASE OF ASSESSEE HAD BECOME FINAL AND WERE NOT ABATED, THEREFORE, NO ADDITION CAN BE MADE QUA THE SETTLED ISSUES. (II) IN ANY CASE NO ADDITION CAN BE MADE U/S 153A AS NO INCRIMINATING MATERIAL WAS FOUND OR RELIED IN THIS BEHALF AS A R ESULT OF IMPUGNED SEARCH. 11 2.8. CIT(A) APART FROM VARIOUS CASE LAWS MENTIONED IN THE ORDER RELIED ON ITAT DELHI BENCH JUDGMENT IN THE CASE OF SHIVNATH R AI HARNARAIN (INDIA) VS. DCIT (2008) 117 TTJ 480, INTER ALIA HOLDING AS UNDER: FROM READING S.153A AND SECOND PROVISO TO S.153A, IT IS FURTHER CLEA R THAT ON THE DATE OF INITIATION OF SEARCH OR REQUISITION UNDER S.132 OR S.132A THE PENDING ASSESSMENT OR REASSESSMENTS RELATING TO ANY ASSESSMENT YEAR FALLI NG WITHIN A PERIOD OF SIX ASSESSMENT YEARS SHALL STAND ABATED BUT ASSESSMENT OR REASSESS MENTS CAN BE DONE UNDER S.153A OF THE ACT IN CASES OF COMPLETED ASSESSMENTS O R IN CASES WHERE ASSESSMENTS HAVE NOT BEEN FRAMED DUE TO NON FILING OF RETURNS ETC. FOR THE ABOVEMENTIONED ASSESSMENT YEA RS EVEN IF SUCH ASSESSMENT MADE UNDER .153A IS NOT BASED ON MATERIAL FOUND DURING COURSE OF SEARCH THE WORD 'ABATE' OR 'ABATEMENT HAS NOT BEEN DEFINED IN THE ACT OR IN THE CIRCULAR. ACCORDING TO CHAMBERS DICTIONARY THE WORD 'ABATE MEANS DEMOLITION ON OR TO PUT AN END TO. IN VIEW OF OUR ABOVE ANALYSIS OF THE PROVISIONS OF SECTIONS, THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE HAVE NO FORCE BECAUSE THERE IS NO REQUIREMENT FOR AN ASSESSMENT MADE UNDER S.153A OF THE ACT BEING BASED ON ANY MATERIAL SEIZED IN THE COURSE OF SEARCH. FURTHER, UNDER THE SECOND PROVISO TO S.153A PENDING ASSESSMENT OR REASSESSMENT PROCEEDINGS IN RELATION TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN S.153A(B) OF THE ACT SHALL COME TO AN END (ABATE), WHICH MEANS THAT THE ASSESSING OFFICER GETS JURISDICTION FOR SIX ASSESSMENT YEARS REFERRED TO IN S.153A(B) OF THE ACT FOR MAKING AN ASSESSMENT OR REASS ESSMENT. FURTHER, IT IS NOT THE CONTENTION OF THE ASSESSEE BEFORE US THAT ANY INCOME, WHICH WAS ALREADY SUBJECTED TO ASSESSMENT UNDER S.143(3) OR UNDER S.143(3)/ 147 OF THE ACT COMPLETED PRIOR TO SEARCH IN RESPECT OF SIX ASSESSMENT YEARS REFERRED TO IN S.153A(B) OF THE ACT AND IN THE SECOND PROVISO TO S.153A, HAS ALSO BEEN INCLUDED IN THE 12 ASSESSMENT FRAMED UNDER S.153A OF THE ACT, HENCE, I N THESE CIRCUMSTANCES, THE CONTENTION OF THE ASSESSEE IN SUPPORT OF GROUND NOS. 1 AND 2 OF ITS APPEAL ARE LIABLE TO BE REJECTE D AND THE SAME ARE REJECTED ACCORDINGLY. CONSEQUENT U PON OUR FINDINGS GIVEN HEREINABOVE, WE. HOLD THAT IN THE EX ISTING FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER WAS PERFECTLY JUSTIFIED IN FRAMING ASSESSMENT UNDER S.153A OF THE ACT FOR THE ASSE SSMENT YEARS UNDER CONSIDERATION AND ACCORDINGLY THE GROUND NOS. 1 AND 2 OF THE APPEAL OF THE ASSESSEE ARE REJECTED. III) THE SIMILAR ISSUE WAS RECENTLY DECIDED BY THE HON'BLE DE . HIGH COURT IN THE CASE OF A NIL KUMAR BHATIA VS. CIT IN IT NO. 1626, 1632, 1998, 20 6, 2019. 2020/2010 DATED 7.8.2012. IN THIS CASE THE HON'BLE HIGH COURT HAS HELD THAT ONCE SEARCH IS INITIATED AND DOCUMENTS ARE FOUND, ASSESS MENT U/S 153A FOR SIX A. YS. PRIOR TO SEARCH A MANDATORILY TO BE MADE. THE OPERATIVE PART IS CONTAINED IN PARAS NO. 18 TO 22 OF THE ORDER OF HON 'BLE DELHI HIGH COURT, WHICH READS AS UNDER: .. . 2.9. AFTER NARRATING THE RELEVANT PARAS OF HONBLE DELHI HIGH COURT JUDGMENT IN THE CASE OF ANIL BHATIA (SUPRA), THE CI T(A) HELD THIS ISSUE AGAINST THE ASSESSEE BY FOLLOWING OBSERVATIONS: 22. IN THE LIGHT OF OUR DISCUSSION, WE FIND IT DIFFICULT TO UPHOLD THE VIEW OF THE TRIBUNAL EXPRESSED IN PARA 9.6 OF ITS ORDER THAT SINCE THE RETURNS OF INCOME LED BY THE ASSESSEE FOR ALL THE SIX YEARS UNDER CONSIDERATION BEFORE THE SEARCH TOOK LACE WERE PROCESSED UNDER SECTION 143(L)(A) OF THE ACT THE PROVISIONS OF SECTION 153 A CANNOT BE INVOKED. THE ASSESSING OFFICER HAS THE POWER UNDER SECTION 153A TO MAKE ASSES SMENT FOR ALL THE SIX YEARS AND COMPUTE THE TOTAL INCOME OF THE ASSESSEE, INCLUDING THE UNDISCLOSED INCOME, NOTWITHSTANDING THAT THE ASSESSEE FILED RETURNS BEF ORE THE 13 DATE OF SEARCH WHICH STOOD PROCESSED UNDER SECTION 143(1)(A). THE OTHER REASON GIVEN B Y THE TRIBUNAL IN THE SAME PARAGRAPH OF ITS ORDER THAT NO MATERIAL WAS FOUND DURING THE SEARCH IS FACTUALLY UNSUSTAINABLE SINCE THE ENTIRE CASE AND ARGUMENTS BEFORE THE DEPARTMENTAL AUTHORITIES AS WELL AS THE TRIBUNAL HAD PROCEEDED ON THE BASIS THAT THE DOCUMENT EMBODYING THE TRANSACTION WITH MOHINI SHARMA WAS RECOVERED FROM THE ASSESSEE. WHILE SUMMARIZING THE CONTENTIONS OF THE ASSESSEE IN PARAGRAPH 5 OF ITS ORDER, THE TRIBUNAL ITSELF HAS REFERRED TO THE CONTENTION THAT NO DOCUMENT MUCH LESS INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH OF THE ASSESSEE'S PREMISES-EXCEPT ONE UNSIGNED UNDERTAKING FOR LOAN. AGAIN IN PARAGRAPH 10 OF ITS ORDER, WHILE DEALING WITH THE ASSESSE 'S CONTENTION AGAINST THE ADDITION OF RS. 1 .50.000/- BEING UNEXPLAINED LOAN GIVEN TO MOHINI SHARMA, THE TRIBUNAL HAS STATED THAT IT HAS ANALYZED 'THE SUBJECT DOCUMENT CAREFULLY , RECOVERED FROM SEARCH' SUGGESTING THAT THE DOCUMENT WAS RECOV ERED DURING HE SEARCH FROM THE ASSESSEE. THE TRIBUNAL HAS EVEN PROCEEDED TO DELETE THE ADDITION OF RS. 1, 50, 000/- AS WELL AS THE NOTIONAL INTEREST ON MERITS. HOLDING THAT THE DOCUMENT WAS UNSIGNED, THAT MOHINI SHARMA WAS NOT EXAMINED BY THE INCOME TAX AUTHORITIES AND THERE WAS NO CORROBORATION OF THE UNSIGNED DOCUMENT. IF IT IS NOT IN DISPUTE THAT THE DOCUMENT WAS FOUND IN THE COURSE OF THE SEARCH OF THE ASSESSEE, THEN SECTION 15A IS TRIGGERED, ONCE THE SECTION IS TRIGGERED} IT APPEARS MANDATORY FOR THE ASSESSING OFFICER TO ISSUE NOTICES UNDER SECTION 15 3A CALLING UPON THE ASSESSEE TO FILE RETURNS FOR THE SIX ASSESSMENT YEARS PRIOR TO THE YEAR IN WHICH THE SEA RCH TOOK PLACE. THERE ARE CONTRADICTIONS IN THE ORDER OF THE TRIBUNAL. WE ARE UNABLE TO APPRECIATE HOW THE TRIBUNAL CAN SAY IN PARA 9.6 THAT NO MATERIAL WAS FOUND DURING THE SEARCH AND AT THE SAME TIME IN PARAGRAPH 10 DEAL WITH THE MERI TS OF THE ADDITIONS BASED ON THE DOCUMENT RECOVERED DURING THE SEARCH WHICH ALLEGEDLY CONTAIN THE LOAN TRANSACTION WITH MOHIN I SHARMA. THEREFORE, BOTH THE REASONS GIVEN BY THE TRIBUNAL FOR HOLDING THAT THE ASSES SMENTS MADE UNDER SECTION 153A WERE BAD IN LAW DO NOT COMMEND THEMSELVES TO US. THE RESULT IS THAT THE FIRST SUBSTANTIAL QUESTION OF LAW 14 IS ANSWERED IN THE NEGATIVE, IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. IV. SIMILAR FINDING WAS GIVEN BY ITAT, MUMBAI IN CA SE OF ACIT VS. PRATIBHA INDUSTRIES LTD. IN ITA NO. 2197 T O 2199 /MUMBAI/ 2008& OTHERS VIDE ORDER DATED 18.12.2012 WHEREIN IT WAS HELD THAT ASSESSMENT U/S 153A ARE MANDATORY TO BE MADE EVEN IF NO INCRIMINATING DOCUMENTS ARE SEIZED. KEEPING IN VIEW THE PLAIN AND UNAMBIGUOUS LANGUAGE OF PROVISIONS OF SECTION 153A AND CASE LAWS MENTIONED ABOVE, THE ACTION OF THE AO IN INITIATING PROCEEDIN GS, U/S 153A AND COMPLETING THE ASSESSMENT U/S 153A R.W.S. 143(3) IS CONFIRMED. THIS GROUND OF APPEAL IS ACCORDINGLY DISMISSED. THE CIT(A) REJECTED ASSESSEES BOTH PLEAS IN THIS BEHALF. 2.10. APROPOS SECOND ISSUE ABOUT REJECTION OF BOOKS U/S 145(3) OF THE ACT, THE CIT(A) REJECTED THE GROUND OF THE ASSESSEE BY FOLLOWING OBSERVATIONS: 6.8 AS REGARDS REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) THE AO HAS OBSERVED THAT THE ASSESSEE TREAT ED THE AGRICULTURE LAND AS FIXED ASSET IN ITS BOOKS OF ACCOUNTS AND THE RECEIPT ON SALE OF IT WAS SHOWN AS CAPITAL RECEIPT AND THE RESULTANT PROFIT HAS BEEN CLAIMED AS EXEMPT. HOWEVER, AS PER DETAILED DISCUSSION IN THE ASSESSMENT ORDER, THE AO CAME TO THE CONCLUSION THAT THE BOOKS OF ACCOUNTS SHOULD BE WRITTEN IN MANNER THAT THEY REFLECT TRUE AND CORREC T AFFAIRS OF THE BUSINESS AND THAT WHEN THE AO WAS NO T SATISFIED ABOUT THE CORRECTNESS OR THE COMPLETENESS OF THE ACCOUNT OF THE ASSESSEE OR WHERE THE MATTER OF ACCOUNTING PROVIDED IN SUB-SEC. 1 OF SEC. 145 OR ACCOUNTING STANDARD AS NOTIFIED UNDER SUB. SEC. 2 O F SEC. 145 HAVE NOT BEE REGULARLY FOLLOWED BY THE ASSESSEE, THE AO MAY MAKE AN ASSESSMENT IN THE 15 MANNER PRO VIDED IN SEC. 144 OF IT ACT. AS PER AO, THE BOOKS OF ACCOUNTS OF THE ASSESSEE DID NOT PRESENT TRUE AND FAIR PICTURE OF ACCOUNT IN AS MUCH AS REVENUE RECEIPTS WERE CLAIMED AS CAPITAL RECEIPT AND ACCORDINGLY TRUE INCOME WAS NOT REFLECTED. THEREFORE PROVISIONS F 145(3) OF IT ACT WERE APPLIED AND THE INCOME FROM SALE OF SUCH LAND WAS TAXED AS BUSINESS INCOME. 6.8.2 AS REGARDS SUCH OBJECTION AND GROUND OF APPELLANT THE APPELLANT HAS NOT MADE ANY SPECIFIC SUBMISSION. MOREOVER AS DISCUSSED IN DETAIL THE TRANSACTIONS OF PURCHASE AND SALE OF AGRICULTURAL LAND ARE FOUND TO BE OF ADVENTURE IN THE NATURE OF TRADE AND THEREFORE THE SAME ARE TO BE TAXABLE UNDER THE BUSI NESS HEAD WHEREAS THE APPELLANT IN HIS BOOKS OF ACCOUNTS CLAIMED SUCH SURPLUS AS EXEMPT INCOME. THEREFORE TH E BOOKS OF ACCOUNT OF THE APPELLANT CANNOT SAID TO BE CORRECT AND TRUE AND PROVISIONS OF SEC. 145(3) ARE DEFINITELY APPLICABLE. THIS GROUND OF APPEAL IS ALSO ACCORDINGLY STAND DISMISSED 2.11. APROPOS THIRD ISSUE RELATING TO TAXABILITY OF AMOUNT ON SALE OF AGRICULTURAL LAND THE CIT(A) HELD AS UNDER: 6.6 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AS ALSO THE FINDING OF THE AO. IT MAY BE NOTED THAT THE APPELLANT HAS PURCHASED SUCH AGRICULTURE LAND AT VILLAGE BAHERAMPUR DISTT. GURGAON, MEASURING 206 CANAL 1 MARLAS FOR TOTAL CONSIDERATION OF RS. 13251000/-. PART OF SUCH LAND HAS BEEN SOLD IN A.Y, 2007-08 FOR TOTAL SALE VALUE OF RS. 32 CR. THE COST OF LAND ATTRIBUTABLE TO SUCH LA ND SOLD IN AY. 2007-08 WAS ARRIVED AT RS. 5926555/- AND ACCORDINGLY PROFIT ON SALE OF LAND WAS ARRIVED AT R S. 314073445/- IN A.Y. 2008-09 THE LAND WAS SOLD FOR RS.62700000/- 16 AND COST FOR LAND ATTRIBUTABLE TO SUCH SALE WAS AT RS. 3771695/- THEREFORE PROFIT ON SUCH SALE WAS DETERMINED AT RS. 58928305/-. THERE IS NO DISPUTE THAT THE LAND WAS AN AGRICULTURAL LAND AND WAS NOT A CAPITAL ASSET. THE AO HAS ALSO NOT DISPUTED THE FAC T OF SALE OF AGRICULTURAL PRODUCE FROM SUCH LAND. TH E LAND IS DEFIN ITELY NOT WITHIN THE MUNICIPAL JURISDICTION AND THIS FACT IS ALSO NOT DISPUTED BY THE AO. THE A O'S CASE IS THAT SUCH AGRICULTURAL LAND WAS DEFINITELY NOT PURCHASED FOR AGRICULTURAL PURPOSES AND THAT THE DOMINANT INTENTION AND OBJECT OF THE ASSESSEE WAS NEVER TO PURCHASE SUCH AGRICULTURAL LAND FOR AGRICULTURAL PURPOSES OR TO KEEP THE S E FOR INVEST MENT PURPOSES. THE AO HAS ACCORDINGLY HELD THAT THE ASSESSEE IS IN THE BUSINESS OF SALE AND PURCHASE O F LAND AND THAT PURCHASE OF SUCH AGRICULTURAL LAND WA S WITH-THE DOMINANT OBJECT OF EARNING OF PROFIT AND N OT TO UTILIZE THE SAME FOR LONG TERM INVESTMENT PURPO SES. THIS FACT IS STATED TO BE EVIDENCED FROM THE FACT T HAT THE LAND WAS PURCHASED ONLY DURING THE A.Y. 2006-07 AND IT WAS SOLD IN A.Y. 2007-08 & 2008-09 AND ACCORDINGLY SUBSTANTIAL PROFIT WAS BOOKED AND EARNED. THE A HAS ALSO NOTED THAT EVEN IN THE MOU O F THE APPELLANT COMPANY, THERE IS NO ANY MAJOR OBJECT OR ANY OTHER MINOR OBJECT FOR PURCHASING OF AGRICULTURAL LAND FOR AGRICULTURAL OPERATIONS. THE AO KEEPING IN VIEW OVERALL BUSINESS TRANSACTIONS AND NATURE OF ACTIVITIES OF THE OTHER SISTER COMPANIES OF THE APPELLANT GROUP HAS OBSERVED THAT THE SOLE OBJE CT OF THE APPELLANT COMPANY IS TO ACQUIRE LAND IN AND AROUND GURGAON IN HARYANA AND SELL THE SAME ON PROFIT. AS PER AO, SUCH CORROBORATIVE FACTS AS ALSO FACTS GATHERED FROM BUSINESS TRANSACTIONS IN RESPEC T OF PURCHASE OF SUCH AGRICULTURAL LAND BY THE SISTER COMPANIES ALSO PROVED THAT SUCH TRANSACTIONS BY APPELLANT COMPANY WERE DEFINITELY OF BUSINESS NATUR E. RELYING ON SUCH FACTS INCLUDING CORROBORATIVE EVIDENCE THE AO HAS HELD THAT THE CONDUCT OF THE APPELLANT COMPANY AS A GROUP INDICATED THAT SUCH PURCHASE AND SALE OF AGRICULTURAL LAND WAS- 17 ADVENTURE IN THE NATURE OF TRADE AND THEREFORE SURPLUS AMOUNT RS. 314073445/- ARISING ON SUCH SALES IN RESPECT OF A.Y. 2007-08 WAS TAXED AS INCOME FROM BUSINESS AND PROFESSION. SIMILARLY IN RESPECT OF A.Y. 2008-09, SUCH SURPLUS AMOUNTING TO RS. 58928305/- WAS TAXE D. ON THE OTHER HAND THE APPELLANT'S CASE IS THAT THE AGRICULTURE LAND HAS BEEN SOLD AT VILLAGE BAHERAMPU R WHICH IS NOT SITUATED IN JURISDICTION IN GURGAON MUNICIPALITY AND THAT PRIOR TO SALE THE APPELLANT W AS CULTIVATING THE LAND AND WAS PRODUCING CROPS NAMELY MUSTARD AND BAZRA ETC. COPY OF GIRDAWARI ISSUED BY PATWARI OF THE VILLAGE WAS ALSO ENCLOSED IN THE WRI TTEN SUBMISSION. THE CROP PRODUCED ON THE SAID AGRICULTURE LAND WAS SOLD TO M/S MUNSHI RAM BANARSIDAS AND RAMESHWARDAS & SONS, COMMISSION AGENTS. THE APPELLANT'S CASE IS THAT AGRICULTURAL INCOME IS DEFINED U/S 2(LA) OF IT ACT AND THAT SUCH INCOME ON ACCOUNT OF SALE OF AGRICULTURAL LAND WILL NOT BE COVERED WITHIN THE MEANING OF CAPITAL ASSET IN VIEW OF THE FACT THAT ONLY THE GAIN ARISING FROM THE AGRICULTURE LAND SPECIFIED IN SUB CLAUSE (III) OF SEC. 2(14) COMES WITHIN THE MEANING OF CAPITAL ASSET. IN SIMPLE WORDS THE AGRICULTURAL LAN D NOT SITUATED IN MUNICIPAL AREA WILL NOT BE TREATED AS CAPITAL ASSET AND SURPLUS ARISES THEREFROM WILL THEREFORE NOT BE LIABLE FOR CAPITAL GAIN. THEREFORE SUCH SURPLUS WAS NOT TAXABLE AS CAPITAL GAIN U/S 45 OF IT ACT. IT IS STATED THAT AS THE AGRICULTURAL LAND WAS NOT CAPITAL ASSET THEREFORE THE OTHER ISSUES WHETHE R THE APPELLANT WAS HOLDING THE LAND FOR AGRICULTURAL PURPOSES AND THE PERIOD OF HOLDING OF LAND WAS FOR VERY LESS PERIOD ARE OF NO RELEVANCE. IT IS CONTEND ED THAT IN RESPECT OF AGRICULTURE INCOME NATURE OR CLA SS OF INCOME IS RELEVANT AND NOT THE RECIPIENT OF THE INCOME AND EXEMPTION OF AGRICULTURE INCOME IS AVAILABLE IRRESPECTIVE E OF CHARACTER OF RECIPIENT. THE APPELLANT HAS ALSO REFERRED TO SEC. 4 OF IT ACT AND IT IS STATED THAT SEC. 4 OF IS CHARGING SECTION WHICH 18 PROVIDES FOR TAXATION OF TOTAL INCOME OF THE PREVIO US YEAR, SUBJECT TO PROVISIONS OF SEC. 5 TO INCLUDE AL L INCOME FROM WHATEVER SOURCES DERIVED AND TOTAL INCOME U/S 5 IS SUBJECT EXEMPT ITEM UNDER SEC. 10 WHICH PROVIDES THAT IS STATED TO BE EXEMPT U/S 10 O F IT ACT. THE APPELLANT HAS ALSO PLACED RELIANCE IN THE CASE OF HINDUSTAN INDUSTRIAL RESOURCES LTD. VS. ACI T (2011) 335 ITR 77 IN WHICH THE HON. DELHI HIGH COURT HAS HELD THAT WHEN ON THE DATE OF PURCHASE TH E LAND IN QUESTION WAS AGRICULTURE LAND AND ON THE DATE OF ACQUISITION THE CHARACTER OF LAND CONTINUED TO B E AGRICULTURE LAND AND BETWEEN THESE TWO PERIOD I.E. PURCHASE OF LAND AND ACQUISITION OF THIS LAND BY 1H E COMPETENT AUTHORITY THERE IS NO. CHANGE IN THE NATU RE AND CHARACTER OF THE LAND THEN SURPLUS FROM SUCH SA LE OF LAND CANNOT BE TAXED AS CAPITAL GAIN. HE APPELLA NT IN HIS DETAILED WRITTEN SUBMISSION HAS ESSENTIALLY CONTENDED THAT THE NATURE OF LAND AT THE TIM E OF PURCHASE AS WELL AS AT THE- TIME SALE WAS ONLY AGRICULTURAL AND 'THAT SUCH AGRICULTURAL LAND BEING NO CAPITAL ASSET THEREFORE SUCH SURPLUS ARISING ON THE SALE OF SUCH LAND CANNOT BE TAXED. THE VARIOUS CASE LAWS REFERRED AN RELIED UPON BY THE APPELLANT ALSO STATED TO BE SUPPORT SUCH PROPOSITION OF LAW. I . I T MAY BE NOTED THAT THE WHOLE DEFENSE OF THE APPELLANT IS MAINLY REVOLVING OVER THE FACTS THAT T HE SAID LAND IS AGRICULTURAL LAND NOT SITUATED IN MUNI CIPAL AREA AND SUCH LAND BEING NOT A CAPITAL ASSET THEREF ORE NOT LIABLE TO INCOME TAX PARTICULARLY CAPITAL GAIN. HOWEVER AS DISCUSSED EARLIER ALL THESE FACTS ARE NO T DISPUTED BY THE AO AND IN FACT THE AO HAS NOT TAXED SUCH SURPLUS SIMPLY ON THE BASIS OF THESE GROUNDS A ND THE AO'S CASE IS THAT SUCH TRANSACTIONS ARE OF BUSI NESS NATURE BEING ADVENTURE IN THE NATURE OF TRADE AND THEREFORE SUCH SURPLUS WAS TAXED UNDER THE BUSINESS HEAD. THEREFORE ESSENTIALLY IT IS TO BE EXAMINED WHETHER IN THE GIVEN CIRCUMSTANCES THE ACTION OF TH E AO TO TREAT SUCH TRANSACTION AS ADVENTURE IN HE NAT URE OF TRADE / BUSINESS WAS JUSTIFIED OR NOT. IT MAY BE NOTED 19 THAT AS PER DEFINITION OF BUSINESS U/S 2(13) OF IT ACT BUSINESS INCLUDES ANY-TRADE, COMMERCE OR MANUFACTURING OR ANY ADVENTURE OR CONCERN IN THE NATURE OF TRADE, COMMERCE OR MANUFACTURE. THE ISSUE AS TO WHAT SHOULD CONSTITUTE AS ADVENTURE IN THE NA TURE OF TRADE, HAS BEEN CONSIDERED AND EXAMINED BY VARIOUS HIGHER COURTS. IN THE CASE OF R. DALMIA VS. CIT (1982) 137 ITR 665, THE HON. DELHI HIGH COURT HAS HELD THAT TO DETERMIN E THE NATURE OF TRANSACTION, THE DOMINANT INTENTION O F THE ASSESSEE HAS TO BE SEEN AND IF THE INTENTION WAS TO EMBARK ON ADVENTURE IN THE NATURE OF TRADE AS DISTINGUISHED FROM A CAPITAL INVESTMENT IT COULD NO T MAKE A DIFFERENCE IF THE TRANSACTIONS IS A SINGLE A ND ISOLATED ONE. THE HON. MP HIGH COURT IN THE CASE OF BHAGIRATH PRASAD BILGAIYA VS. CIT (1983) 139 ITR 916, HAS HELD THAT REFERENCE TO AN ADVENTURE IN THE NATURE OF TRA DE APPEARING IN THE DEFINITION OF BUSINESS POSTULATES THE EXISTENCE OF THE CERTAIN ELEMENTS IN THE NATURE OF ADVENTURE WHICH IN LAW WOULD INVEST IT WITH THE CHARACTER OF TRADE OR BUSINESS. IN OTHER WORDS THE HON. COURT HAS. HELD THAT TO CONSTITUTE A TRANSACTI ON AS ADVENTURE IT IS NOT NECESSARY THAT ALL PARAMETER S OF DEFINITION OF BUSINESS SHOULD BE MET OUT AND IF CERTAIN ELEMENTS OF BUSINESS ARE MANIFESTED IN SUCH TRANSACTION IT CAN BE HELD TO BE IN THE NATURE OF T RADE OR BUSINESS. THE HON. SUPREME COURT IN THE CASE OF M/S DALMIYA CEMENT LTD. VS CIT (1976) L05 ITR 633 HAS HELD THAT TO QUALIFY A TRANSACTION BEING ADVENTURE IN THE. NATURE OF TRADE, THE TRANSACTION NEED NOT RELATE TO ASSESS EE'S BUSINESS OR TO HIS LEGAL BUSINESS. THE HON. SUPREME COURT IN THE CASE OF RAJPUTANA TEXTILE A GENCIES LTD. VS. CIT (19611 421TR 743 HAS HELD THAT IN CONSIDERING THE QUESTION WHERE THE 20 TRANSACTION IS OR IS NOT AN ADVENTURE IN THE NATURE OF TRADE ONE HAS TO BE TAKE TO CONSIDERATION THE INTEN TION OF THE ASSESSEE. KEEPING IN VIEW THE LEGAL REQUIREM ENTS WHICH ARE ASSOCIATED WITH CONCEPT OF TRADE OR BUSIN ESS. THE HON. ALLAHABAD HIGH COURT IN THE CASE OF ITO VS. RANI RATNESH KUMARI (1980) 123 ITR 343 HAS HELD THAT APART FROM DOMINANT AND EVEN SOLE INTENTION IN RESP ECT OF SPECIFIC TRANSACTION WHICH MAY QUALIFY FOR AN ADVENTU RE IN THE NATURE OF TRADE, SUBSEQUENT CONDUCT OF THE ASSESSEE MUST ALSO BE CONSIDERED FURTHER THE HON, SUPREME COURT IN THE CASE OF G. VENKAT SWAMI NAIDU & CO. VS. CIT 35 ITR 594 HAS HELD THAT IN CASES WHERE PURCHASES HAVE EN MADE SOL ELY AND EXCLUSIVELY WITH INTENTION TO 'RESELL AT A PROFIT AND PURCHASER HAS NO INTENTION OF HOLDING PROPERTY FOR HIMSELF OR OTHERWISE ENJOYING OR USING IT, P RESENCE OF SUCH AN INTENTION IS A RELEVANT FACTOR AND UNLESS I T IS OBSTRUCTED BY PRESENCE OF OTHER FACTORS IT COULD RA ISE A STRONG PRESUMPTION THAT THE TRANSACTION IS AN ADVEN TURE IN THE NATURE OF TRADE. THE HON. GUJARAT HIGH COURT IN THE CASE OF CIT VS. PREMJI GOPALBHAI (1978) 113 1TR 785 HAS HELD THAT THE SOLE INTENTION TO RESELL AT A PROFIT IS A STRONG FACTOR TO DETERMINE THE TRANSACTION AS ADVENTURE IN NATURE OF TRADE. IT IS HELD THAT EVEN IF THE LAND WHICH IS NOT A COMMERCIAL COMMODITY IS PURCHASED AND IT CAN BE SHOWN THAT THE PURCHASE OF THE LAND WAS MADE SOLELY AND EXCLUSIVELY WITH AN INTENTION TO RESELL IT AT A PROFIT IT WOULD BE A STRONG FACTOR TO INDICATE THAT THE TRANSACTION WOULD BE AN ADVENTURE IN NATURE OF TRAD E. THE HON. MP HIGH COURT IN THE CASE OF CIT VS. JAWAHAR DEVELOPMENT ASSOCIATION (1981) 121 ITR 431 HAS HELD THAT THE FACT THAT THE LAND IS AGRICULTURAL LAND IS NOT RELEVANT AND THE MERE FACT THAT THE LAND IS AN AGRICULTURAL LAND CANNOT MAKE THE PROFIT ARISING FR OM SALES EXEMPT FROM INCOME TAX. 21 THE APPELLANTS CASE IS TO BE EXAMINED KEEPING IN V IEW THE ABOVE MENTIONED BROAD PARAMETERS WHICH JUSTIFY TAXING OF SUCH TRANSACTIONS AS ADVENTURE IN THE NAT URE OF TRADE. IT MAY BE NOTED THAT AS PER MEMORANDUM OF ARTICLE O F ASSOCIATION OF THE APPELLANT COMPANY ONE OF THE OBJECT INCIDENTAL TO THE ATTAINMENT OF THE MAIN OBJECTS IS STATED AS UNDER: -TO ACQUIRE BY PURCHASE LEASE, EXCHANGE OR OTHERWIS E ANY PROPERTY AND ANY MOVABLE OR IMMOVABLE PROPERTY AND ANY RIGHTS OR PRIVILEGES WHICH THE COMPANY MAY DEEM NE CESSARY CONVENIENT FOR THE MAIN BUSINESS OF THE COMPANY. 1 G) SUCH INCIDENTAL OBJECT PRIMA FACIE INDICATE THAT ON E OF THE MAIN OBJECTION, THE APPELLANT COMPANY IS ALSO TO ACQUIRE BY PURCHASE, LEASE, EXCHANGE OR OTHERWISE A NY MOVABLE OR IMMOVABLE PROPERTY I) IT MAY ALSO BE NOTED THAT IN THE SAID MOU IT IS NOWHERE STATED OR PROVIDED THAT THE COMPANY WILL BE PURCHASING AGRICU LTURAL LAND FOR CARRYING OUT AGRICULTURAL OPERATION OR FOR KEEPING SUCH LAND FOR LONG TERM INVESTMENT BASIS. FROM THESE FACTS IT IS CLEARLY EMERGED THAT ONE OF THE MAIN OBJECT OF THE APPELLANT COMPANY AS PER MOU IS DEFINITELY TO DEAL WITH IN IMMOVABLE PROPERTY BY WAY OF PURCHASE, SALE, LEA SE ETC. AS A BUSINESS ACTIVITY AND AGRICULTURAL ACTIVI TY IS DEFINITELY NOT A MAJO R OR INCIDENTAL OBJECT OF THE APPELLANT COMPANY. THE APPELLANT IN ITS EARLIER REP LY ALSO REGULARLY SHOWN ITS BUSINESS AS SALE, PURCHASE AND DEALING IN REAL ESTATE. II) IT MAY BE NOTED THAT SUCH AGRICULTURAL LAND MEASURI NG 206 CANAL 16 MARLA WAS PURCHASED FOR RS. 13251000 LACS DURING A.Y. 2006-07 AND IN THE VERY NEXT A.Y. I.E. 2007 -08 PART OF SUCH LAND (91 KANAL 28.5 MARLA] WA S SOLD FOR RS.32 CR. ANOTHER LAND MEASURING 25 KANAL 9 MARLA FROM THE SAME LAND PURCHASED IN A. Y. 2008-09 WAS SOLD IN 2008-09 ON 6.7.2007 FOR RS. 6.26 CR. TH E 22 DOMINANT INTENTION OF THE APPELLANT IS CLEARLY MANI FESTED BY SUCH SALE TRANSACTION IN AS MUCH AS THE APPELLAN T HAS SOLD SUCH LAND IN A VERY LESS PERIOD AND THAT, THE INTENTION OF THE APPELLANT WAS NOT TO HOLD SUCH LAND FOR A SUBSTANTIAL PERIOD. THE ABOVE FACT INDIC ATES THAT THE DOMINANT OBJECTIVE AND INTENTION WAS TO PURCHASE SUCH LAND AND TO UTILIZE AND EARN BUSINESS PROFIT AT THE EARLIEST POSSIBLE OCCASION. THEREFORE EVEN IF THE SAID LAND WAS AGRICULTURAL LAND THE, INTENTION OF THE APPELLANT; WAS NOT TO KEEP IT FOR AGRICULTURAL PURP OSES OR AS AN INVESTMENT BUT TO DERIVE PROFIT-AT THE EAR LIEST POSSIBLE TIME. III) THE APPELLANT CONSIST OF A GROUP IN WHICH THERE ARE OTHER CORPORATE ENTITIES ALSO AND AS DISCUSSED BY T HE AO THE OTHER SISTER CONCERNS/ COMPANIES AS ALSO ITS DI RECTORS ARE BROADLY FOUND TO BE INVOLVED IN THE BUSINESS OF REAL ESTATE PROPERTY. THE BROAD DETAILS OF SUCH COMPANY I INDIVIDUAL AS DISCUSSED BY THE AO IN THE ASSESSMENT ORDER ARE AS UNDER: A) MARIGOLD MERCHANDISE PVT. LTD . B) MISTY MIDOWS PVT. LTD. C) MANGLAM MULTIPLEX PVT. LTD. D) DIGNITY BUILDCOM PVT. LTD. E) M/S MARHSAL BUILDCON F) MIS M3M INDIA LTD. G) BONUS BUILDERS PVT. LTD. H) BENCHMARK INFOTECH PVT. LTD. IV] IT MAY ALSO BE STATED THAT THE MAIN PERSONS OF THIS GROUP INCLUDING SH. BASANT BANSAL, SH. ROOP BANSAL AND' OTHER FAMILY MEMBERS ALSO STARTED THEIR CAREER IN THE BUSINESS OF REAL ESTATE AS LAND BUYING AGENT FO R M/S 23 EMMAR MGF GROUP AND SUBSEQUENTLY BY FLOATING MANY PVT. LTD. COMPANIES THEY HAVE EXPANDED THEIR BUSINESS OF REAL ESTATE TO LARGE SCALE. THE COMPANI ES ASSOCIATED WITH THE APPELLANT COMPANY AND ITS DIREC TORS ARE DEFINITELY FOUND TO BE ENGAGED IN THE BUSINESS OF REAL ESTATE. THERE IS NO EVIDENCE ON RECORD THAT ANY AGRICULTURE LAND HAS BEEN PURCHASED FOR CARRYING OF AGRICULTURAL OPERATION FOR KEEPING THE SAME FOR LON G TERM BASIS AS AN INVESTMENT. THEREFORE EVEN FROM SU CH CORROBORATIVE / CIRCUMSTANTIAL EVIDENCE IT IS PROVE D THE DOMINANT AND MAIN INTENTION OF THE APPELLANT COMPAN Y W S TO PURCHASE SUCH AGRICULTURE LAND TO EMBARK ON THE BUSINESS TRANSACTIONS OF ADVENTURE IN THE NATURE OF TRADE AND TO EARN THE PROFIT AT THE EARLIEST POSSIBLE. V} IT MAY ALSO BE STATED THAT THE WHOLE OF SUCH ARE AS ADJOINING GURGAON INCLUDING SOHNA, DHARUHEDA, REWARI ETC. IS COVERED UNDER NATIONAL CAPITAL REGIO N. IN THESE AREAS AND PARTICULARLY IN THE AREA WHERE T HE APPELLANT HAS PURCHASED LAND THOUGH AS PER REVENUE RECORD SUCH LAND MAY BE OF AGRICULTURAL LAND BUT FO R ALL PRACTICAL PURPOSES SUCH LAND IS OF COMMERCIAL NATUR E. THE APPELLANT DEFINITELY PURCHASED SUCH LAND FOR THE MAIN ~MOTIVE OF EARNING OF PROFIT IN AS MUCH AS BEI NG IN THE BUSINESS OF PROPERTY BUSINESS M AND AROUND SUCH AREA, THE APPELLANT WAS HAVING GOOD BUSINESS PRUDENCE TO EXPECT SUBSTANTIAL GAIN IN THE SHORTEST PERIOD. VI) AS REGARDS THE CLAIM OF THE APPELLANT THAT THE LAND WAS AGRICULTURAL AND AGRICULTURE PRODUCE WAS SOLD WHICH INDICATED THAT AGRICULTURAL OPERATIONS WERE CARRIED OUT IT MAY BE NOTED THAT WHEN THE LAND IS QUESTION IS PURCHASED WITH A MOTIVE OF USING OR UTILIZING AS AN BUSINESS ASSET. TO EARN PROFIT THEN SUCH INCIDENTAL RECEIPTS ON ACCOUNT OF AGRICULTURE PRODU CE CANNOT CHANGE THE NATURE OF SUCH TRANSACTION WHICH ARE PRIMA FACIE OF ADVENTURE IN THE NATURE OF TRADE . AGGRIEVED, ASSESSEE IS BEFORE US IN BOTH THE YEARS. 24 3. LD COUNSEL FOR THE ASSESSEE SHRI RAKESH GUPTA, C ONTENDS THAT THE ONLY ISSUE EFFECTIVE ISSUE IN THESE APPEALS PERTAINS TO: (I) WHETHER IN THE ABSENCE OF ANY INCRIMINATING MATERIA L FOUND AS A RESULT OF SEARCH ASSESSING OFFICER IS ENABLED TO MA KE SUCH ADDITION; (II) WHETHER THE BOOKS OF ACCOUNTS CAN BE REJECTED U/S 1 45(3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE; (III) ADDITIONS MADE BY LD. A.O. & CONFIRMED BY LD. CIT(A ) ON THE GROUND THAT TO PROFIT / GAIN ARISING FROM PURCHASE AND SALE OF SPECIFIED AGRICULTURAL LAND HELD BY ASSESSEE AS FIX ED ASSETS, CANNOT BE HELD AS EXEMPT INCOME AND IS LIABLE TO BE TREATE D AS BUSINESS INCOME. 3.1. LD. COUNSEL REITERATED THE FACTS AND CONTENDS THAT IT HAS BEEN ASSUMED THAT BECAUSE ASSESSEE BELONGS TO A GROUP OF COMPANI ES ENGAGED IN REAL ESTATE BUSINESS, THE GAINS IN QUESTION, DERIVED FROM SALES OF AGRICULTURAL LAND BY ASSSESEE AMOUNTS TO ADVENTURE IN THE NATURE OF TRAD E. CONSEQUENTLY SUCH GAINS WHICH ARE OTHERWISE EXEMPT AS AGRICULTURAL IN COME ARE ASSESSABLE AS BUSINESS INCOME IN ASSESSEES HANDS. 3.2. ADVERTING FURTHER TO FACTS, LD COUNSEL CONTEND S THAT APPELLANT PURCHASED IMPUGNED AGRICULTURAL LAND AT VILLAGE BEH RAMPUR DISTRICT GURGAON HARYANA, ADMEASURING 206 KANAL 16 MARLAS FOR RS. 1, 32,51,000/-, WHICH IS DULY REPORTED WITH RETURN OF INCOME FOR A.Y. 2006-0 7. THE IMPUGNED LAND HAS BEEN SHOWN AS FIXED ASSET IN THE BOOKS OF A/CS WHICH ARE ASSESSED U/S 143(3). THE AGRICULTURAL LAND IS SITUATED BEYOND 8 KM. FROM THE LIMIT OF NEAREST MUNICIPAL COMMITTEE. OUT OF THIS AGRICULTUR AL LAND, THE APPELLANT SOLD 92 KANAL 8.50 MARLA FOR RS. 32 CRORES IN AY 2007-08 AND BALANCE IN AY 2008-09. THE SAID LAND WAS PURCHASED AND SOLD AS AG RICULTURAL LAND BY CONVEYANCE WHICH IS NOT DISPUTED BY LD. A.O. & BY L D. CIT(A). 25 3.3. ASSESSEE WAS SEARCHED ON 17.09.2008, WHICH LEA D TO IMPUGNED ASSESSMENTS WHICH ARE FRAMED U/S 153A I.E. BY WAY OF BLOCK ASSESSMENT FOR ASSESSING UNDISCLOSED INCOME ON THE BASIS OF ANY IN CRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH. ORIGINAL ASSESSMENT FO R A.Y. 2006-07 WAS WERE FRAMED U/S 143(3) IN WHICH ASSESSEES CLAIM OF INCO ME, PURCHASE OF THIS AGRICULTURAL LAND IS DULY DISCLOSED THEREIN. THE AS SESSMENT HAS BEEN ACCORDINGLY FRAMED AND PURCHASE OF AGRICULTURAL LAN D HAS BEEN ACCEPTED. EXCEPT VERY SAME ORIGINAL DOCUMENTS NO INCRIMINATI NG MATERIAL WAS AVAILABLE BEFORE AO DURING THE COURSE OF 153A ASSES SMENTS. REFERENCE IS MADE TO PARA 3 OF THE 153A ASSESSMENT ORDER WHICH CLEARLY SHOWS THAT THE IMPUGNED ADDITION HAS BEEN MADE AFTER EXAMINATION OF RETURN OF INCOME, ACCOMPANYING DOCUMENTS AND THE DETAILS / DOCUMENTS / EVIDENCES FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS.. WHICH CLEARLY IMPLIES THAT THE ADDITION HAS NOT BEEN MADE ON THE BASIS OF ANY INCRIMINATING EVIDENCE FOUND AS A RESULT OF SEARCH, BUT ON THE BA SIS OF RETURN FILED BY THE ASSESSEE AND AVAILABLE RECORD. READING OF THE ENTIR E ASSESSMENT ORDER REVEALS THAT NO REFERENCE IS MADE TO ANY INCRIMINATING MATE RIAL FOUND AS A RESULT OF SEARCH, WHILE MAKING THE IMPUGNED ADDITIONS UNDER 1 53A ASSESSMENTS. THIS IS SO BECAUSE, AS A MATTER OF FACT, NO MATERIAL, MU CH LESS THE INCRIMINATING MATERIAL QUA THE IMPUGNED ADDITIONS WAS DISCOVERED AS A RESULT OF THE SEARCH. 3.4. ONE OF THE GROUND , BEFORE LD. CIT (A) WAS TO THE EFFECT THAT THERE BEING NO INCRIMINATING EVIDENCE FOUND AS A RESULT O F SEARCH QUA THESE ADDITIONS, HENCE NO SUCH ADDITION CAN BE MADE U/S 153A I.E. BLOCK ASSESSMENT FOR ASSESSING UNDISCLOSED INCOME, THAT T OO BY ONLY CHANGING THE NATURE OR HEAD OF INCOME WHICH IS ALREADY ASSESSED. 3.5. DETAILED ARGUMENTS, PLETHORA OF EVIDENCE AND C ATENA OF JUDGMENTS WERE CITED BEFORE LOWER AUTHORITIES. REJECTING THEM LD. CIT(A) HELD THAT 26 THERE IS NO SUCH REQUIREMENT UNDER THE LAW THAT ADD ITION SHOULD BE BASED ON INCRIMINATING MATERIAL AS NOTED IN PARA 5.4.3 AT PA GE 12, 16 OF THE APPEAL ORDER. LD. COUNSEL THUS SUBMITS THAT AT THE OUTSET ITSELF, SUCH ADDITIONS CAN NOT AT ALL BE MADE IN ASSESSMENT MADE U/S 153A ON I NCOME WHICH IS ALREADY ASSESSED U/S 143(3) AND WHEN NO INCRIMINATING MATER IAL IN THIS REGARD IS FOUND AS A RESULT OF SEARCH. 3.6. IT IS PLEADED THAT, BY NOW IT IS A SETTLED PRO POSITION OF LAW BASED ON HONBLE DELHI AND RAJASTHAN HIGH COURT JUDGMENTS AN D A CATENA OF ITAT JUDGMENTS THAT NO ADDITIONS COULD BE MADE IN THE A SSESSMENT U/S 153A IF THERE IS NO INCRIMINATING MATERIAL FOUND AS A RESUL T OF SEARCH. FOLLOWING CASE LAWS ARE RELIED UPON:- (I) ALL CARGO GLOBAL LOGISTICS LTD. V. DCIT (2012) 18 ITR (TRIB) 106 (MUMBAI)(SB) FOR THE PROPOSITION THAT IN ASSE SSMENTS THAT ARE ABATED, THE AO RETAINS THE ORIGINAL JURISD ICTION AS WELL AS JURISDICTION CONFERRED ON HIM U/S 153A FOR WHICH ASSESSMENTS SHALL BE MADE FOR EACH OF THE SIX ASSES SMENT YEARS SEPARATELY. IN OTHER CASES, IN ADDITION TO THE INCO ME THAT HAS ALREADY BEEN ASSESSED, THE ASSESSMENT U/S 153A WILL BE MADE ON THE BASIS OF INCRIMINATING MATERIAL, WHICH IN THE C ONTEXT OF RELEVANT PROVISIONS MEANS - (I) BOOKS OF ACCOUNT, O THER DOCUMENTS, FOUND IN THE COURSE OF SEARCH BUT NOT PR ODUCED IN THE COURSE OF ORIGINAL ASSESSMENT, AND (II) UNDISCL OSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEARCH. (II) GURINDER SINGH BAWA V. DCIT (2012) 28 TAXMANN. COM 328 (MUM TRIB) FOR THE PROPOSITION THAT WHERE IN SEAR CH ASSESSMENT UNDER SECTION 153A ALL ASSESSMENTS PERTA INING TO SIX 27 IMMEDIATELY PRECEDING ASSESSMENT YEARS WERE COMPLET E, ASSESSING OFFICER CANNOT MAKE ANY ADDITION THERE UN DER UNLESS THERE IS ANY INCRIMINATING MATERIAL DISCOVERED DURI NG THE SEARCH. (III) JAI STEEL INDIA V. ACIT 259 CTR 281(HC) (RAJA STHAN) 29. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE AO IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UND ER S. 153A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHEME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALLY IN CONTEXT OF SEARCH AND/OR REQUISITION .. . IF TAKEN TO ITS LOGICAL END WOULD MEAN THAT EVEN IN CASES WHERE THE APPEAL ARISING OU T OF THE COMPLETED ASSESSMENT HAS BEEN DECIDED BY THE CIT(A) ,ITAT AND THE HIGH COURT , ON A NOTICE ISSUED UNDER SECTI ON 153A OF THE ACT, THE AO WOULD HAVE POWER TO UNDO WHAT HAS B EEN CONCLUDED UPTO THE HIGH COURT .ANY INTERPRETATION W HICH LEADS TO SUCH CONCLUSION HAS TO BE REPELLED AND/OR AVOIDE D AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF K.P. VARGH ESE (IV) KUSUM GUPTA V. DCIT, ITA NOS. 4873/DEL/2009, ( 2005-06) 2510 (A.Y. 2003-04), 3312(A.Y. 2004-05) 28 33/DEL/2011 (A.Y. 2006-07) 15. SINCE THERE IS NO CHANGE ON THIS MATERIA L FACT THAT DURING ALL THESE ASSESSMENT YEARS NO INCRIMINATIN G MATERIAL WAS RECOVERED OR STATEMENT WAS RECORDED DURING TH E COURSE OF SEARCH SUGGESTING NON-GENUINENESS OF THE CL AIMED GIFTS OR EXPENSES ETC. AND NO SUCH ADDITION/DISALLOWANCE WAS MADE IN THE ORIGINAL ASSESSMENT WHICH REMAINED UNABATED , WE FOLLOWING THE DECISION ON THE ISSUE HEREINABOVE IN THE APPEAL PREFERRED BY THE REVENUE FOR A. A 2002-03, HOLD THA T SUCH ADDITION/DISALLOWANCE CANNOT BE MADE IN THE ASSESSM ENT FRAMED U/S 153A OF THE ACT IN THIS A. Y IN APPEALS. IN RESULT THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN VIEW OF THIS FINDING THE REMAINI NG GROUNDS QUESTIONING THE MERITS OF ADDITIONS/DISALLOWANCE S DO NOT 28 NEED ADJUDICATION AS THEY HAVE BECOME INFRUCTU OUS AND ACADEMIC ONLY . CONSEQUENTLY APPEALS PREFERRED BY THE ASSESSEE FOR THE A.YS. 2003-04, 2004-05, 2005-06 AN D 2006-07 ARE ALLOWED AND APPEALS PREFERRED BY THE REVENUE IN THE A.YS. 2002-03, 2005-06, 2006-07 ARE DISMISSED. (V) MGF AUTOMOBILES LTD. V. ACIT, ITA NOS 4212 & 4213/DEL/2011 - IN THE PRESENT CASE IT IS APP ARENT THAT ON THE DATE OF SEARCH BE ON 12/09/2007, THE ASSES SMENTS FOR ASSESSMENT YEAR 2004-05 & 2005-06 WERE ALREADY COM PLETED. THERE WAS NO INCRIMINATING MATERIAL FOUND DUR ING SEARCH FOR THESE YEARS AS IS APPARENT FROM ARGUMENTS OF LD. AR AND FROM RECORDS AND LD. DEPARTMENTAL REPRESENTATIVE DID NOT BRING TO OUR NOTICE REGARDING ANY INCRIMINATING MATERIAL HAVING BEEN FOUND DURING SEARCH. THEREFORE FOLLOWI NG THE JUDICIAL PRECEDENTS, WE ARE OF THE OPINION T HAT THOUGH ASSESSMENTS FOR THE ABOVE YEAR WERE BOUND TO BE REOPENED BUT ADDITIONS COULD BE MADE ONLY IF SOME INCRIMINATING DOCUMENT WAS FOUND DURING SEARCH. (VI) TARANNUM ZAFAR KHAN VS. ACIT, ITA NOS. 5888 TO 5890/MUM/2009 18.3 ONE MORE REASON IS THERE THAT MOST OF TH E ADDITIONS HAVE BEEN MADE IN THE ROUTINE MANNER AS THE ISSUE HAS NOT BEEN DISCUSSED IN RIGHT PERSPECTIVE IN TAK ING INTO CONSIDERATION THE SUBMISSION AND OTHER EVIDENCES F ILED. IT IS ALSO A MATTER OF FACT THAT NO INCRIMINATING MATERIA L WAS FOUND DURING THE COURSE OF SEARCH AS ONLY DURING THE ASSE SSMENT PROCEEDING, THESE EXPENSES WERE FOUND MADE THROUGH CREDIT CARDS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETE THE ADDITION OF RS.9,057/-. (VII) VEE GEE INDUSTRIAL ENTERPRISES VS. ACIT, ITA NO. 1/DEL/2011 & ITA NO.2/DEL/2011 15. IN VIEW OF THE ABOVE, WE AGREE WITH THE CONTENTIONS OF ASSESSEE AND ALLOW GROUND NO.1 OF THE APPEAL. IN RESPEC T OF SECOND 29 GROUND OF APPEAL REGARDING DISALLOWANCE OF TELEP HONE, CAR EXPENSES ETC WE OBSERVE THAT NO INCRIMINATING MATER IAL WAS FOUND IN RESPECT OF SUCH EXPENSES WHICH COULD ENABL E THE ASSESSING OFFICER TO DISALLOW A PART OF IT DURING PROCEEDINGS U/S 153A. THIS HAS BEEN HELD IN VARIOUS PRONOUNCEME NTS OF VARIOUS COURTS AND THE LATEST BEING BY HONBLE RAJA STHAN HIGH COURT IN THE CASE OF JAI STEELS INDIA VS. CIT IN 25 9 CTR (RAJ) 281, WHERE THE HONBLE COURT HAS HELD THAT IN CASE OF ASSESSMENT U/S 153A, THE COMPLETED ASSESSMENT CAN B E TINKERED ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND D URING SEARCH. THEREFORE, IN THE PRESENT CASE WITHOUT ANY INCRIMINATING MATERIAL ASSESSING OFFICER WAS NOT JU STIFIED IN MAKING DISALLOWANCE. (VIII) ITA NOS. 1153 TO 1159/HYD/2012 MIR MAZHARUDD IN, 24.1.2013 ADDITION CANNOT BE MADE IN ASSESSMENT COMPLETED U/S 153A WITHOUT ANY REFERENCE TO THE SEIZED MATERIAL. HE FU RTHER HELD THAT IT IS ALSO NOT THE CASE OF THE AO THAT THE SEI ZED MATERIAL IF ANY SUGGESTED INFLATION OF AGRICULTURAL INCOME. HE, THEREFORE, CONCLUDED THAT SUCH TYPE OF ADDITION CANNOT BE MADE IN THE ASSESSMENT U/S 153A DEHORSE THE MATERIAL FOUND AT T HE TIME OF SEARCH (IX) ASHA KATARIA, I.T.A. NOS. 3105, 3106 & 3107/DE L/2011 20.5.2013 52. WE FIND THAT IN THIS CASE THE ASSESSMENT WAS MA DE U/S. 153A OF THE I.T. ACT. HENCE, RELIANCE UPON THE DECISION OF THE SPECIAL BENCH IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD . (SUPRA) IS ALSO GERMANE AND SUPPORT THE CASE OF THE ASSESSEE. AS EXPOUNDED IN THIS CASE ASSESSMENT U/S. 153A CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. 3.7. LD. COUNSEL PLEADS THAT AO HAS NOT REFERRED T O ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH WHILE MAKING I MPUGNED ADDITIONS . LD. CIT (A) HAS ALSO NOT REBUTTED THE FACT THAT THERE I S NO EVIDENCE MUCH LESS THE INCRIMINATING EVIDENCE FOUND AS A RESULT OF SEARCH. IGNORING THE ASSESSES 30 PLEADINGS THE GROUND HAS BEEN DISPOSED OF BY LD. CI T(A) SUMMARILY BY HOLDING THAT THERE IS NO SUCH REQUIREMENT UNDER THE LAW THAT ADDITION SHOULD BE BASED ON INCRIMINATING MATERIAL. IT IS VEHEMENTL Y ARGUED THAT IN VIEW OF THESE PLEADINGS AND BINDING JUDICIAL PRECEDENTS, TH E DECISION OF CIT (A) DESERVES TO BE REVERSED. 3.8. LD COUNSEL FURTHER PLEADS THAT EVEN ON MERIT, THE IMPUGNED ADDITION IS NOT SUSTAINABLE. THE SAID LAND WAS PURCHASED AS AGR ICULTURAL LAND AND HELD AS FIXED ASSET IN ITS BOOKS OF ACCOUNTS. THIS HAS BEEN ACCEPTED BY 143(3) ASSESSMENT IN A.Y. 2006-07 WHICH HAS BECOME FINAL. THE PURCHASE OF AGRICULTURE LAND HAS ALSO BEEN ACCEPTED BY LD. A.O AT PARA 3.4(A) AT PAGE 4 OF THE BLOCK ASSESSMENT ORDER . LD. CIT(A) HAS ALSO HELD THAT IT WAS AGRICULTURAL LAND AND WAS NOT CAPITAL ASSET IN PARA 6.6, PAGE 39, 40, 43 OF THE APPEAL ORDER. LD COUNSEL THEN REFERRED TO FOLLOWING DOCUMENTS PLACED ON PAPER BOOK TO EMPHASIZE THESE FACTS: (I) PB 29-44 IS THE COPY OF PURCHASE DEED SHOWING THE NATURE OF LAND AS AGRICULTURAL LAND. THIS IS PART O F ASSESSMENT RECORD U/S 143(3) FOR A.Y. 2006-07. (II) PB 45-48 IS THE SALE DEED OF IMPUGNED AGRICUL TURAL LAND WHEREIN AT PB 47 THE NATURE OF IMPUGNED SOLD LAND H AS BEEN MENTIONED AS AGRICULTURAL LAND. (III) PB 27-28 IS THE EVIDENCE IN THE FORM OF CERTI FICATES FROM TEHSILDAR CERTIFYING THE LAND AS AGRICULTURAL LAND AND FURTHER THAT IT IS LOCATED BEYOND 8 KM. FROM MUNICIPAL AREA. (IV) PB 59-62 IS THE COPY OF GIRDAWARI SHOWING THE GROWING OF AGRICULTURAL CROP ON THIS LAND. 31 (V) PB 63-64 IS THE COPY OF EVIDENCE OF SALE OF AGR ICULTURAL PRODUCE. 3.9. IT IS PLEADED THAT AGRICULTURAL LAND SITUATE B EYOND SPECIFIED LIMITS OF MUNICIPAL COMMITTEE, WHICH IS NOT REGARDED AS CAPI TAL ASSET, BY LEGAL PRESCRIPTION U/S 2(14) ITS SALE OR TRANSFER WOULD N OT GIVE RISE TO TAXABLE CAPITAL GAIN. THE IMPUGNED LAND BEING NOT AN ASSET IN THE EYES OF LAW, ITS TRANSFER OR SALE WILL NOT BE CHARGEABLE AS TAXABLE GAINS BY EXPRESS MANDATE OF THE LAW. THE ACT FURTHER PROVIDES THAT SUCH INCOME , PROFIT OR GAINS WOULD BE TREATED AS AGRICULTURAL INCOME EXEMPT U/S 2(1A)(A) R.W.S 2(14)(III) R.W.S. 10(1) . THIS WAS EXPLAINED IN GREAT DETAIL BEFORE LD. CIT( A) BY WAY OF SUBMISSIONS AND BY RELYING UPON CATENA OF JUDGMENTS IN THE CASES OF: - MANUBHAI A. SHETH VS. SECOND ITO 128 ITR 87 (BOM); - NADIRSHAH RUSTAMJI MULLA VS. ITO 154 ITR 629 (BOM.) ; - SULEKHA SANDIP PARIKH VS. SIXTH ITO 159 ITR 775 (BO M); - SINGHAI RAKESH KUMAR VS. UOI 247 ITR 150 (SC); - RAGHOTTAMA REDDY VS. ITO 169 ITR 174 (A); - HARRISONS MALAYALAM LTD. VS. ACIT 32 SOT 497 (COCHI N). 3.10. REFERENCE IS MADE TO PB 187 WHICH IS A CHART SHOWING AGRICULTURAL INCOME RETURNED FOR VARIOUS YEARS, WHICH IS IRONICA LLY ACCEPTED AND ASSESSED AS SUCH BY THE DEPARTMENT. 3.11. BEFORE LD. CIT(A) IT WAS INTER ALIA DEMONSTRA TED THAT PROFIT ON SALE OF AGRICULTURAL LAND IS NOT TAXABLE RELYING UPON DELHI HIGH COURT DECISION IN THE CASE OF HINDUSTAN INDUSTRIES RESOURCES LTD. VS. ACI T 335 ITR 77 FOR THE PROPOSITION THAT POSSIBLE FUTURE INTENT OF DIFFEREN T USE OF THE AGRICULTURAL LAND HELD IS NOT MATERIAL NOR IS THE QUANTUM OF SURPLUS ON SALE AND STATUS OF THE RECIPIENT, THESE FACTORS DO NOT ALTER THE NATURE OF AGRICULTURAL LAND. BESIDES IT 32 HAS BEEN HELD BY VARIOUS JUDICIAL PRECEDENTS THAT E VEN THE REAL ESTATE COMPANIES CAN HOLD THE PORTFOLIO OF LAND AS AGRICUL TURAL LAND. CASE LAWS RELIED ON ARE: - GORDHANBHAI KAHANDAS DALWADI VS. CIT 127 ITR 664( GUJ); - DR. MOTIBAI D. PATEL VS. CIT 127 ITR 671 (GUJ); - MANIBHAI MOTIBHAI PATEL VS. CIT 131 ITR 120(GUJ) ; - CWT VS. SHASHIBEN 205 CTR 298(GUJ). 3.12. IT IS FURTHER CONTENDED THAT THE IMPUGNED AGR ICULTURAL LAND RIGHT FROM THE YEAR OF PURCHASE IN A.Y. 2006-07 WAS HELD AS FI XED ASSET I.E. AS AN INVESTMENT IN BOOKS OF ACCOUNTS AND WAS NEVER HELD AS BUSINESS ASSET. THIS IS EVIDENT FROM THE FACT THAT IT WAS SHOWN AS FIXED ASSET AND NOT AS STOCK IN TRADE IN BALANCE SHEET. FURTHER, NO DEVELOPMENT WOR K WHATSOEVER WAS UNDERTAKEN BY THE APPELLANT NOR ANY LICENSE FOR COM MERCIAL EXPLOITATION WAS APPLIED SO AS TO SUGGEST EVEN ANY FUTURE INTENTION FOR NON AGRICULTURAL USE. THE LAND WAS PURCHASED AND SOLD IN KANALS AND MARLA S AND NOT IN YARDAGE OR FEET. NEITHER ANY PLOTTING WAS DONE, NOR CHANGE OF LAND USE (CLU) WAS APPLIED. THUS LOOKING FROM ANY ANGLE THERE IS NO IO TA OF EVIDENCE OR ANY INCRIMINATING MATERIAL TO INDICATE THAT THERE WAS E VEN ANY ENDEAVOUR MUCH LESS ANY FUTURE INTENT TO USE LAND FOR NON AGRICULT URAL PURPOSES. THE FACTS AND RECORD CLEARLY DEMONSTRATE THAT NO REAL ESTATE DEVE LOPMENT ACTIVITY WAS DONE BY THE ASSESSEE QUA IMPUGNED AGRICULTURAL LAND. 3.13. BEFORE LD. CIT (A) APPELLANT DULY MET WITH AN D DISTINGUISHED AS WELL AS THE A.OS RELIANCE ON THE DECISION OF MADHYA PRA DESH HIGH COURT IN THE CASE OF CIT VS. JAWAHAR DEVELOPERS 127 ITR 431. 3.14. RELIANCE IS PLACED ON THE RATIO OF DECISION O F HONBLE BOMBAY HIGH COURT IN THE CASE OF MANIBHAI A. SETH VS. ITO 128 I TR 387 , HOLDING IN IDENTICAL FACTS THAT THE LAND WAS AGRICULTURAL LAND . 33 3.15. HONBLE DELHI HIGH COURT IN THE CASE OF DLF HOUSING AND CONSTRUCTION P. LTD. VS. CIT 9 TAXMANN 207 (DELHI) OBSERVED THAT BURDEN TO PROVE THAT A PARTICULAR TRANSACTION IS NOT OF AG RICULTURAL LAND, SQUARELY LIES ON REVENUE AND WHEN NO STEPS ARE TAKEN BY ASSESSEE TO DEVELOP THE LAND, IT RETAINED ITS CHARACTER AS AGRICULTURAL LAND. 3.16. FOLLOWING OTHER CASE LAWS CITED BEFORE LD. CI T (A) APROPOS HIS QUERY ABOUT DRAWING ADVERSE INFERENCE ON THE PHENOMENAL GROWTH IN THE LAND PRICES ARE ALSO CITED BEFORE US:. (I) COMMISSIONER OF WEALTH-TAX V. H.V. MUNGALE [19 83] 12 TAXMAN 201 (BOM.) WHILE DETERMINING THE CHARACTER OR THE NATURE OF THE LAND, IT MUST NECESSARILY BE TAKEN INTO ACCOUNT THAT THE LAND WHICH IS RECORDED AS AGRICULTURAL LAND IN THE REVENUE PAPERS CANNOT BE USED FOR NON-AGRICULTURAL PURPOSES BY THE OWNER, UNLESS THE LAND IS ALLOWED TO BE CONVERTED TO NON-AGRICULTURAL PURPOSES BY APPROPRIA TE AUTHORITIES. (II) IN SERCON (P.) LTD. V. CIT [1982] 136 ITR 881 (GUJ.), THE LAND IN QUESTION WAS NOT USED FOR AGRICULTURAL PURPOSES, BUT IT WAS SHOWN IN THE REVENUE RECORDS AS AN AGRICULTURAL LAND AND AS NO PERMISSION HAD BEEN TAKEN FOR NON-AGRICULTURAL USER UNDER THE BOMBAY LA ND REVENUE CODE AND THERE WAS NO EVIDENCE OF PREPARATION, ETC., IT WAS HELD THAT THE LAND RETAINED ITS CHARACTER AS AN AGRICULTURAL LAND AND, HENCE, THE SURPLUS REALISED ON ITS SALE WAS NOT CAPITAL GAINS LIABLE T O TAX. (III) CIT VS. DEBBILE ALEMAO (SMT.) (2010) 46 DTR 3 41 (BOM.) LAND WHICH WAS SHOWN AS AGRICULTURAL LAND IN THE RE VENUE RECORDS AND NEVER SOUGHT TO BE USED FOR NON AGRICULTURAL PURPOS ES BY THE ASSESSEE TILL IT WAS SOLD HAS TO BE TREATED AS AGRICULTURAL LAND, EVEN THOUGH NO 34 AGRICULTURAL INCOME WAS SHOWN BY THE ASSESSEE FROM THIS LAND, AND THEREFORE, NO CAPITAL GAIN WAS TAXABLE ON THE SALE OF THE SAID LAND. (IV) D.L.F. UNITED LTD. 158 ITR 342 HC DELHI 15. IT WOULD BE APPARENT THAT IF THE ASSESSEE-COMP ANY HAD SOLD THIS LAND WITHOUT DEVELOPMENT OR CONVERSION IN TO PLOTS TO SOMEBODY ELSE, IT WOULD NOT BE LIABLE TO TAX. THE L IABILITY TO TAX WOULD ARISE IF IT HAD MADE A SCHEME FOR CONVERTING THE AGRICULTURAL LAND INTO URBAN PLOTS. SO, WE WOULD AN SWER THE SECOND QUESTION ON THE BASIS THAT THE RECEIPT IN TH IS CASE IS IN THE NATURE OF A CAPITAL GAIN RESULTING FROM THE ACQ UISITION OF AGRICULTURAL LAND AND THE FACT THAT THE LAND WAS LY ING FALLOW AND NOT BEING USED FOR AGRICULTURE MAKES NO DIFFERENCE. THAT IN THE SALE DEEDS OF THE LANDS IN QUESTION SPECIFICALLY MENTIONED THE FACT THAT THE SAID LAND IS AGRICULTUR AL LAND THIS IS ALSO MENTIONED IN THE LAND DESCRIPTION THAT ITS ENT RY IN THE LAND REVENUE RECORDS OF THE STATE GOVERNMENT IS ITS SEL F, A PRIMA FACIE EVIDENCE THAT DEMONSTRATE THAT THE SAID LAND IS NOT MEANT FOR ANY OTHER PURPOSE WHAT TO SAY ANY NON-AGRICULTU RAL PURPOSE. FURTHER, THE SALE DEEDS ALSO MENTIONED THAT THE SAID LAND HAS NOT NOTIFIED UNDER SECTION 4 OR 6 OF THE L AND ACQUISITION ACT, 1984 EITHER FOR THE PLANNED DEVELOPMENT OR FOR ANY OTHER PURPOSE THAT MEANS THE FUTURE INTEND USE CANNOT BE OTHER THAN AGRICULTURAL PURPOSES VIZ TO UNDERTAKE A NY COMMERCIAL ACTIVITY THAT DEMONSTRATES, WHATSOEVER, ADVENTURE IN THE NATURE OF TRADE. (V) SHRI K. GNANESHWAR DT. 19.12.2012 ITA NO.526A /HYD/2005 : AY 2000-01,ITA NO.508/HYD/2007,ITA NO.543/HYD/2006, ITA NO.226/HYD/2007, ITA NO.1407/HYD/2010, & IT(S S)A NO.44/HYD/2009 PARA 47 THERE IS NO MATERIAL ON RECORD TO SHOW THA T THE ASSESSEE CARRIED ON ACTIVITIES OF BUYING AND SELLIN G OF LAND IN A SYSTEMATIC MANNER SO AS TO JUSTIFY THE ACTION OF TH E REVENUE AUTHORITIES IN TREATING THE ACTIVITY OF THE ASSESSE E AS AN 35 ADVENTURE IN THE NATURE OF TRADE. THE LAND WAS SOLD IN ACREAGE AND NOT BY MAKING PLOTS. IN THE CIRCUMSTANCES, WE A RE OF THE OPINION THAT THE SALE OF LAND CANNOT BE CONSIDERED AS AN ADVENTURE IN THE NATURE OF TRADE AND INCOME DERIVED FROM SUCH SALE SHOULD BE TREATED AS AGRICULTURAL INCOMEPARA 57 THE NATURE OF LAND SOLD IS OF AGRICULTURAL NATURE, AND HENCE THE INCOME DERIVED ON THE SALE OF SUCH LAND HAVE TO BE TREATED AS AGRICULTURAL INCOME EXEMPT UNDER S.10 OF THE ACT 3.17. THERE IS NO LEGISLATIVE INTENTION WHICH DEPRI VES ANY BUSINESS GROUP TO HOLD ANY SUCH PRODUCTS OR COMMODITY WHICH ARE IN ITS CAPITAL INVESTMENT TO TAX IT AS BUSINESS INCOME. A. BUSINESS ENTITY IS ALLOWED TO HAVE ANY COMMODITY AS ITS CAPITAL INVESTMENT ACCOUNT, EVEN IT IS DEALING IN REAL ESTA TE. SIMILAR OBSERVATION WAS ALSO GIVEN BY HONBLE DELHI HIGH CO URT IN THE CASE OF HINDUSTAN INDUSTRIAL RESOURCES LTD. (SUPRA) . B. SECONDLY, MAINTENANCE OF INVESTMENT AND TRADING SH ARE PORT FOLIO BY ASSESSEE HAS BEEN ALLOWED AND CLARIFIED IN THE C ASE OF SHARE TRADING ENTITIES BY THE CBDT VIDE CIRCULAR NO. 4/20 07, DATED 15-6- 2007, WHICH EMPHASIZES THAT IT IS POSSIBLE FOR A TA X PAYER TO HAVE TWO PORTFOLIOS, I.E., AN INVESTMENT PORTFOLIO COMPR ISING OF SECURITIES WHICH ARE TO BE TREATED AS CAPITAL ASSET S AND A TRADING PORTFOLIO COMPRISING OF STOCK-IN-TRADE WHICH ARE TO BE TREATED AS TRADING ASSETS. WHERE AN ASSESSE HAS TWO PORTFOLIOS , THE ASSESSEE MAY HAVE INCOME UNDER BOTH HEADS I.E., CAPITAL GAIN S AS WELL AS BUSINESS INCOME. RELIANCE IS FURTHER PLACED ON THE RECENT JUDGMENT OF DELHI HIGH COURT IN THE CASE OF DELHI APARTMENTS PVT. LTD. ( ITA 569/2012 JUDGMENT 36 DELIVERED ON: 07.03.2013) PARA 7 THEREOF; HOLDS TH AT AN ASSESSEE COULD HOLD LANDS BOTH AS BUSINESS ASSET OR AS AN INVESTME NT. THERE IS NO BAR ON AN ASSESSEE WHO IS IN BUSINESS OF SALE-PURCHASE OF LAND, ALSO TO HOLD LAND AS AN INVESTMENT WHICH WILL BE CAPITAL AS SET. IN THESE CIRCUMSTANCES, THE TRIBUNAL HELD THAT THE ASSESSEE COULD VERY WELL BE A TRADER IN LAND AS WELL AS AN INVESTOR IN LAND SIMUL TANEOUSLY, DEPENDING ON WHAT HIS INTENTION WAS AND HOW HE TREATED THE AS SET IN QUESTION. HONBLE HIGH COURT UPHELD THE TRIBUNALS FINDING TH AT IN THE PRESENT CASE, THE LAND WAS PURCHASED AND WAS SHOWN AS AN AS SET IN THE BALANCE SHEET AND THAT THE LAND HAD ALSO BEEN USED FOR AGRI CULTURAL PURPOSES WHICH LED THE TRIBUNAL TO THE INFERENCE THAT THE LA ND WAS HELD AS AN ASSET AND, THEREFORE, THE ASSESSEE HAD APPROPRIATEL Y OFFERED IT FOR TAXATION UNDER THE HEAD CAPITAL GAINS. 3.18. WITHOUT PREJUDICE TO ABOVE, LD COUNSEL CONTEN DS THAT ASSESSES BOOKS WERE REJECTED WITHOUT ANY JUSTIFICATION WHATSOEVER. NO INCONSISTENCIES OR COMPLEXITY HAVE BEEN POINTED OUT ABOUT INABILITY TO DETERMINE THE ASSESSEES TRUE INCOME. BOOKS OF ACCOUNTS ARE AUDITED AND IN O RDER TO WILLY- NILLY REJECT THE BOOKS IT WAS DONE BY A PRESUMPTUOUS PLEA THAT L AND OUGHT TO HAVE BEEN TREATED AS STOCK IN TRADE. IN UMPTEEN NO OF ASSESSM ENTS, HEADS OF INCOME, NATURE OF EXPENSES FROM CAPITAL TO REVENUE OR VICE VERSA ARE CHANGED. IT DOESNT IMPLY THAT AO WILL REJECT DULY MAINTAINED B OOKS OF ACCOUNTS IN EVERY SUCH CASE. THERE WAS NO JUSTIFICATION FOR LOW ER AUTHORITIES TO REJECT THE BOOKS JUST TO CHANGE THE HEAD OR INTERPRET THE LAW IN THEIR OWN WAY. FOR THE SAKE OF ARGUMENTS EVEN IF SUCH AGRICULTURAL LAND IS TREATED AS BUSINESS ASSET YET THE GAIN FROM IT WOULD NONETHELESS BE EXEMPT AS AGRICULTURAL INCOME. 37 3.19. FURTHER RELIANCE IS PLACED ON THE RATIO OF DE CISIONS FOR THIS PROPOSITION IN THE CASES OF: - CIT VS. SIR KAMESHWAR SINGH 3 ITR 305 (PC); - HINDUSTAN RESOURCES LTD. VS. ACIT 335 ITR 77 (DEL .); - RAJA MUSTAFA ALI KHAN VS. CIT 16 ITR 330 (PC); - CIT VS. DIWAN BAHADUR S.L. MATHIAS 7 ITR 48 (PC); - K. SIMRATHMULL VS. CIT 64 ITR 166 (MAD.); - CIT VS. MANILAL SOMNATH 106 ITR 917 (GUJ.); - MAGANLAL MORARBHAI VS. CIT 118 ITR 224 (GUJ.); A ND - CIT VS. MADHABHAI H. PAATEL 208 ITR 638 (GUJ.). 3.20. LD COUNSEL FOR THE ASSESSEE ENDEAVORED TO DIS LODGE VARIOUS OBSERVATIONS AND INFERENCES DRAWN BY LOWER AUTHORIT IES. (I) AO HAS MENTIONED THAT APPELLANT WAS IN THE BUSINESS OF REAL ESTATE AS EXPLAINED IN THE REPLY FILED DURING ASSES SMENT PROCEEDING AND ALSO IN EARLIER YEARS AND ONLY ACTIVITY PERFORM ED IS PURCHASE AND SALE OF LAND AND ALSO IN THE COMPUTATION OF INCOME, NATURE OF BUSINESS HAS BEEN MENTIONED AS REAL ESTATE BUSINESS . IN REPLY IT IS SUBMITTED THAT THIS OBSERVATION OF LD. AO IS INCORR ECT AS THE COMPANY WAS INCORPORATED ON 161.2004 AND THE SUBJEC T TRANSACTION OF PURCHASE IN A.Y. 2006-07 WHICH IS ACCEPTED U/S 1 43(3) AND SALE IN A.Y. 2007-08 IS ONLY TRANSACTION OF PURCHASE AND SALE. (II) AO HAS MENTIONED THAT CROP INSPECTION BOOK FILED BY THE ASSESSEE SHOWS THAT THE NAME OF THE OWNER IS MUKAND I AND NOT THE APPELLANT. IN REPLY IT IS SUBMITTED THAT THE SAID L AND WAS GIVEN ON BATAI TO MUKANDI AND THAT IS HOW HIS NAME APPEARS ( PB 10). EVEN OTHERWISE, IF IT IS NOT THE CASE OF THE AO THAT APP ELLANT WAS NOT THE 38 OWNER OF SUBJECT LAND, THEN THERE IS NO QUESTION OF TAXING THE GAIN ON SALE RESULTING FROM SUCH LAND. IN FACT, CIT(A) HAS MENTIONED IN HIS ORDER THAT ONLY DISPUTE IS ABOUT THE HEAD OF INCOME AND THUS THE CONTROVERSY RAISED BY AO IS NOT OF ANY SIGNIFICANCE . (III) AO HAS MENTIONED THAT THOUGH THE LAND WAS AGRICULTU RAL BUT IT WAS SO IN REVENUE RECORD ONLY AND THAT THERE WAS NO EVIDENCE TO SHOW THAT THE LAND WAS HELD FOR AGRICULTURAL PURPOS E. IN REPLY, IT IS SUBMITTED THAT THIS OBSERVATION OF AO IS TO THE UTT ER DISREGARD OF EVIDENCE BEFORE HIM AND PLACED IN THE PAPER BOOK, R EFERENCE TO WHICH HAS BEEN MADE ABOVE (PB 59-62, 63-64, 187). M OREOVER, LD. CIT(A)S FINDING AT PAGE 39, 40, 43 OF THE APPEAL O RDER IS RELIED UPON. (IV) AO HAS HELD THAT SHORT DURATION WHICH THE SUBJECT L AND WAS HELD BY THE ASSESSEE AND GROUP COMPANIES DEALING IN REAL ESTATE BUSINESS MEANS THAT APPELLANT WAS IN THE BUSINESS OF REAL ES TATE. IT IS SUBMITTED THAT THIS PROPOSITION WAS RAISED BY CIT(A ) CONSEQUENTLY IT IS PROPOSED TO BE DEALT BELOW. 3.21. ADVERSE OBSERVATIONS OF LD. CIT(A) ARE MET AS UNDER BY THE COUNSEL:- (I) LD. CIT(A) HAS MENTIONED THAT THOUGH THE LAND WAS A GRICULTURAL LAND BUT SINCE IT WAS PURCHASED AND SOLD AT SHORT INTERV AL, IT SHOWS THAT IT WAS PURCHASED WITH AN INTENTION TO DO BUSINESS. ALS O, MOA ALSO INDICATES SHOWS THE OBJECTIVE OF REAL ESTATE BUSINE SS OF THE APPELLANT. IN REPLY, IT IS SUBMITTED THAT MOA MAY CONTAIN VARI OUS OBJECTIVES BUT WHAT HAS TO BE SEEN ON FACTS AS TO WHAT HAS ACT UALLY BEEN DONE BY 39 THE COMPANY. APPELLANT COMPANY WAS UNDISPUTABLY EN TITLED TO PURCHASE AGRICULTURAL LAND AS FIXED ASSET AND DERIV E AGRICULTURAL INCOME THERE FROM WHICH HAS BEEN OFFERED AND TAXED AS AGRICULTURAL INCOME. THUS, ACTUAL ACTIVITY HAS TO BE SEEN INSTEA D WHAT IS MENTIONED IN THE MOA. MOAS OBJECT CLAUSE IS SO COM PREHENSIVELY WORDED SO AS TO INCLUDE RIGHT FROM FISHING TRADE TO AEROPLANE MANUFACTURING. THUS, OBJECT CLAUSE SHOULD NOT BE TH E SOLE CRITERIA TO THE UTTER DISREGARD OF THE EVIDENCE AND ACTUAL ACTI VITY UNDERTAKEN. RELIANCE IS PLACED ON: - ITO VS. NEON PROPERTY P LTD. ITA NO. 1171/DEL/2011 DATED 13.5.2011; - CIT. VS. PKN CO. LTD. 60 ITR 65 (SC) MERELY BECAUSE AGRICULTURE LAND WAS PURCHASED IN ON E YEAR AND SOLD AS SUCH IN OTHER YEAR, ALONE IS NOT ENOUGH, TO TE RM IT AS ACTIVITY OF BUSINESS. OBJECTIVE OF BEST POSSIBLE EARNINGS FROM AN INVESTMENT IS ALWAYS THERE AND IS NOT PROHIBITED BY ANY LAW. THER E IS NO PROPOSITION OF LAW THAT INVESTMENT IN AGRICULTURAL LAND UNLESS HELD FOR A PARTICULAR NUMBER OF YEARS WOULD CEASE TO BE INVESTMENT OR THE ASSET AS NON AGRICULTURAL LAND. IF MARKET PRICE OF INVESTMENT I.E. AGRICULTURAL LAND HAS SUBSTANTIALLY APPRECIATED, NO PRUDENCE DEMANDS THAT IT SHOULD STILL BE RETAINED AND NOT LI QUIDATED. LAND WAS PURCHASED IN KANALS AND MARLAS, SOLD IN KA NALS AND MARLAS, NOT PURCHASED/SOLD IN YARDAGE, NO CLU APPLI ED, NO DEVELOPMENTAL WORK UNDERTAKEN, NO APPROVALS TAKEN, NO PLOTTING DONE- ALL THESE FACTORS AMPLY DEMONSTRATE THAT INTE NTION WAS NOT TO DO BUSINESS WITH THIS LAND. 40 WITHOUT PREJUDICE TO ABOVE, EVEN IF IT IS ASSUMED T HAT IMPUGNED AGRICULTURAL LAND WAS PURCHASED AND SOLD WITH THE D OMINANT INTENTION TO DO BUSINESS, THOUGH CONTESTED YET IT IS SUBMITTE D THAT EVEN THEN, THE GAIN RETAINS THE CHARACTER OF AGRICULTURE INCOM E AND DO NOT BECOME BUSINESS INCOME. (II) LD. CIT(A) HAS EXTENSIVELY QUOTED CASE LAWS TO SHOW THAT THE IMPUGNED NATURE OF PURCHASE AND SALE OF LAND MAY CO NSTITUTE AN ADVENTURE IN THE NATURE OF TRADE. IN THE SYNOPSIS FILED BEFORE ITAT, LD COUNSEL HAS F ILED A CHART AND DETAILED CASE LAWS WISE SUBMISSIONS TO DEMONSTRATE THAT FACTS OF THE CASE LAWS CITED BY LD. CIT(A) TO HOLD VARIOUS PROPO SITION AGAINST ASSESSEE ARE ENTIRELY DIFFERENT THAN THOSE OF THE A PPELLANT. IN AS MUCH AS THEY DEAL WITH ISSUES OF SALE OF SHARES UNDER DI FFERENT PORTFOLIOS, NO. OF TRANSACTIONS OF LAND, SOLD LAND MEASURED IN SQUARE FEET OR METERS ETC.. THEY ARE NOT BEING REPEATED FOR THE SA KE OF BREVITY. (III) LD. CIT(A) HAS HELD THAT SINCE THE GROUP TO WHICH T HE APPELLANT BELONGS WAS IN REAL ESTATE BUSINESS, CONSEQUENTLY A PPELLANTS IMPUGNED TRANSACTION OF PURCHASE AND SALE OF AGRICU LTURAL LAND, ALSO BECOMES TRADING ASSET AND ALSO FROM THE FACT THAT L AND IN AND AROUND GURGAON WAS QUITE LUCRATIVE BUSINESS PROPOSITION. IN REPLY, IT IS SUBMITTED THAT IT IS A MISCONCEIVED FINDING. ASSESSEE COMPANY IS AN INDEPENDENT AND INCORPORATED ENTITY, IN THE EYES OF LAW AND IT MAINTAINS/ CARRIES OUT ITS INDEPENDENT A FFAIRS. MERELY BECAUSE OTHER GROUP COMPANIES HAVE BUSINESS TRANSAC TION IT CANNOT RESULT INTO A COLORED ASSUMPTION THAT ASSESSEE IS A LSO HAVING BUSINESS ACTIVITIES, THEREFORE ITS FIXED ASSET SHOULD BE DE EMED TO BE TRADING 41 ASSETS. FURTHER, ONLY BECAUSE LAND IN AND AROUND GU RGAON CAN FETCH BETTER PRICE, IT CAN NOT BE THE REASON TO TERM THE INVESTMENT IN AGRICULTURE AS TRADING ASSET BY SUCH OUTLANDISH PRE SUMPTIONS. IT HAS BEEN HELD BY SEVERAL JUDICIAL AUTHORITIES TH AT EVEN REAL ESTATE COMPANIES CAN HOLD AGRICULTURAL LAND IS FORTIFIED B Y FOLLOWING JUDICIAL DECISIONS:- - DLF UNITED LTD. 161 ITR 714(DEL), - ITO. VS. NEON PROPERTY P LTD. ITA NO. 1171/DEL/20 11 DATED 13.5.2011 - DELHI APARTMENTS P LTD. ITA 569/2012 DATED 7.3.20 13 (DEL)(HC) 4. LD. CIT(DR), ON THE OTHER HAND, APROPOS JURISDIC TIONAL ISSUE CONTENDS THAT THE CASE LAWS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE OF JAI STEEL INDIA (SUPRA), THE FACTS WERE DIFFERENT I N THE SENSE THAT IN ORIGINAL ASSESSMENT THE ASSESSEE HAD NOT CLAIMED SALES-TAX I NCENTIVES TO BE CAPITAL IN NATURE. AFTER THE SEARCH IN 153A ASSESSMENT ASSESSE E CLAIMED THAT THE ASSESSING OFFICER SHOULD NOW GRANT DEDUCTION THEREO N, REDUCING IT FROM THE INCOME BY TREATING IT TO BE CAPITAL RECEIPT. LD. D R REFERRED TO THE QUESTION OF LAW IN THIS BEHALF. IN THESE PECULIAR FACTS THE DE CISION WAS RENDERED REJECTING THE ASSESSEES CLAIM FOR REDUCTION OF SUCH INCOME. LD. CIT(A) HAS IN DETAIL CONSIDERED THE PLAIN AND UNAMBIGUOUS LANGUAGE OF PR OVISION OF SEC. 153A AND UPHELD THE ASSESSMENT. HIS ORDER IS RELIED ON. 4.1. APROPOS REJECTION OF BOOKS OF ACCOUNTS,, IT IS CONTENDED THAT IT HAS NOT BEEN DISPUTED THAT ASSESSEE IS GROUP OF HOST OF COM PANIES TOGETHER ARE COMBINEDLY ENGAGED IN REAL ESTATE OPERATIONS AT A L ARGE SCALE. THE ASSESSEE ITSELF IN REPLY DATED 26-10-2010 ON THE QUERIES RAI SED BY ASSESSING OFFICER REGARDING BUSINESS ACTIVITIES OF THE COMPANY SUBMIT TED THE FOLLOWING REPLY: 42 THE ASSESSEE IS CARRYING ON THE BUSINESS OF DEVELO PING VARIOUS LAND PROJECTS AS WELL AS DEALS IN SALE AND PURCHASE OF LAND AND HAS OCCUPIED THE FOLLOWING BUSINESS PREMISES USED A S REGISTERED OFFICE OF THE COMPANY AND PAID RENT AMOU NTED TO RS. 12000/- DURING THE YEAR UNDER CONSIDERATION. 4.2. THUS ASSESSEE ITSELF HAS ADMITTED THAT IT WAS CARRYING ON BUSINESS OF DEVELOPING VARIOUS LAND PROJECTS, SALES DEALS AND P URCHASE OF LAND. THE ASSESSEE HAS MAINTAINED BOOKS OF ACCOUNTS IN A MANN ER TO CAMOUFLAGE ITS REAL ACTIVITIES IN THE NAME OF HOLDING THE LAND AS FIXED ASSET AND AVOID TAX BY COLOURABLE AND DUBIOUS CLAIMS. ALL THESE FACTS PUT TOGETHER MAKE OUT A JUSTIFIABLE CASE OF REJECTION OF BOOKS U/S 145(3). ORDER OF LOWER AUTHORITIES IS RELIED ON. 4.3. APROPOS THE MERITS OF THE CASE, LD. DR CONTEND S THAT A HOST OF COMPANIES WERE LAUNCHED BY BASANT BANSAL FAMILY UND ER VARIOUS NAMES. THEY STARTED THE CAREER AS BUYING AGENT FOR ANOTHER REAL ESTATE GIANT MGF GROUP. SUBSEQUENTLY THE ASSESSEE GROUP STARTED ACQU IRING LAND THROUGH VARIOUS COMPANIES OF THE GROUP AND TRANSFERRED IT T O M/S MANGLAM MULTIPLEX PVT. LTD.; M/S DIGNITY BUILDCOM PVT. LTD.; M/S MARS HALL BUILDCON PVT. LTD.; M/S M3M INDIA LTD. ASSESSING OFFICER HAS TAKEN A HO LISTIC PICTURE TO UNCOVER THE ASSESSEES EFFORT, ENDEAVORED TO INDUL GE IN HIDE AND SEEK BEHIND THE MIST OF CORPORATE ENTITIES AND SHIELDING ITS A CTIVITIES BEHIND A CORPORATE VEIL. ASSESSING OFFICER HAS DEMONSTRATED THAT THE L AND PURCHASED BY THE ASSESSEE WAS NOT MEANT FOR CARRYING OUT AGRICULTURA L ACTIVITIES BUT WITH THE MAIN OBJECT TO MAKE PROFITS BY SELLING IT TO BUILDE RS AND DEVELOPERS. RELIANCE IS PLACED ON FOLLOWING CASE LAWS FOR THE PROPOSITIO N THAT IN SUCH CIRCUMSTANCES THE ADDITION CAN BE MADE. - CIT VS. SUTLEJ COTTON MILLS SUPPLY AGENCY 100 ITR 7 06; - R. DALMIA VS. CIT (1992) 137 ITR 665 (DEL.); 43 - CIT VS. JAWAHAR DEVELOPMENT ASSOCIATION 127 ITR 431 (MP) - KEDARNATH JUTE MANUFACTURING CO. LTD. VS. CIT 82 IT R 363 (SC). 4.4. COMING TO THE LEGAL ARGUMENTS, SEC. 2(1A)/ 2(1 4)(III) R.W.S. 10(1), LD. CIT(DR) CONTENDS THAT THE MAIN ARGUMENT OF THE ASSE SSEE IS TO BE EFFECT THAT THE LAND IN QUESTION IS OUTSIDE THE SPECIFIED MUNIC IPAL LIMITS AND SUCH LAND BEING NOT A CAPITAL ASSET IS NOT LIABLE TO INCOME-T AX TAX. ASSESSING OFFICER HAS NOT TAXED THE GAINS ON THE BASIS THAT PURCHASE AND SALE OF LAND BY THE ASSESSEE IS AN ADVENTURE IN THE NATURE OF TRADE AND THE SURPLUS IS LIABLE TO BE TAXED AS BUSINESS INCOME. AS PER SEC. 2(13) OF THE I.T. ACT, BUSINESS INCLUDES ANY TRADE, COMMERCE OR MANUFACTURING OR AN Y ADVENTURE OR CONCERN IN THE NATURE OF TRADE. IN THE CASE OF R. DALMIA 13 7 ITR 665 THE HONBLE DELHI HIGH COURT HAS HELD THAT FOR DETERMINING THE NATURE OF THE TRANSACTION THE DOMINANT INTENTION OF THE ASSESSEE IS TO BE SEE N. 4.5. TO DETERMINE THAT ASSESSEES VENTURE WAS IN TH E NATURE OF TRADE OR FROM A CAPITAL INVESTMENT. ENTRIES IN THE BOOKS OF A/CS ARE NOT MATERIAL AND THE REAL NATURE OF TRANSACTION IS TO BE SEEN. RELIANCE IS PL ACED ON HONBLE SUPREME COURT JUDGMENT IN THE CASE OF KEDARNATH JUTE MANUFA CTURING CO. LTD. (SUPRA). SIMILAR VIEW HAS BEEN HELD IN VARIOUS OTHE R CASE LAWS RELIED ON BY THE CIT(A) IN HIS ORDER. IT IS FURTHER PLEADED THA T THE MOA OF THE ASSESSEE NO WHERE PROVIDES THAT IT WILL BE PURCHASING AGRICU LTURAL LAND FOR CARRYING OUT AGRICULTURE OPERATION OR FOR KEEPING SUCH LAND FOR LONG TERM BASIS. THUS, THE AGRICULTURE ACTIVITY CLAIMED TO BE CARRIED ON B Y THE ASSESSEE IS NEITHER A MAJOR NOR AN INCIDENTAL OBJECT OF THE ASSESSEE COMP ANY. THE SHORT PERIOD OF HOLDING AND THE AMOUNT OF HUGE EARNING ITSELF INDIC ATES THAT THE OBJECT OF THE ASSESSEE WAS NOT TO HOLD THE LAND AS AGRICULTURE LA ND BUT TO ENGAGE IN THE BUSINESS OF SELLING IT TO EARN HUGE PROFITS. IT IS PLEADED THAT, THEREFORE, THE 44 ADDITION HAS BEEN RIGHTLY CONFIRMED BY THE LOWER AU THORITIES. THEIR ORDERS ARE RELIED ON. 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE RELEVANT MATERIAL PLACED ON RECORD. COMING TO THE FIRST ISSU E, THE LEGALITY OF ADDITION, IT IS SETTLED LAW THAT IN BLOCK ASSESSMENT CONSEQUE NT TO SEARCH U/S 153A READ WITH SEC. 143(3) NO ADDITION CAN BE MADE UNLESS SOM E INCRIMINATING MATERIAL IN THIS BEHALF IS FOUND AS A RESULT OF SEARCH. IT E MERGES FROM RECORD THAT NO INCRIMINATING MATERIAL IN BEHALF OF THE PURCHASE OF THESE LANDS AND SALE OF THESE LANDS HAVE BEEN FOUND AS A RESULT OF SEARCH. IN ANY CASE THE WHOLE ISSUE REVOLVES AROUND THE CHANGE OF NATURE OF INCOME I.E. FROM EXEMPT TO TAXABLE AS BUSINESS INCOME. THE PURCHASES OF AGRICULTURAL L AND HAS BEEN ACCEPTED BY DEPARTMENT AS PART OF FIXED ASSET/ INVESTMENT OF TH E ASSESSEE BY ASSESSMENT U/S 143(3). BOTH THE LOWER AUTHORITIES HAVE RATHER RELIED ONLY ON THE ORIGINAL RETURN OF INCOME, RETURNS ON RECORD AND EXPLANATION S FILED BY THE ASSESSEE AND NOT ON ANY INCRIMINATING MATERIAL FOUND AS A RE SULT OF SEARCH. BESIDES, LD. DR HAS NOT BEEN ABLE TO POINT OUT ANY INCRIMIN ATING MATERIAL FOUND AS A RESULT OF SEARCH OR THE RELIANCE OF THE LOWER AUTHO RITIES THEREON. LD. DR HAS ENDEAVORED TO DISTINGUISH THE HONBLE RAJASTHAN HIG H COURT JUDGMENT IN THE CASE OF JAI STEEL INDIA (SUPRA) FROM ASSESSEES CAS E WHICH THE LD. COUNSEL FOR THE ASSESSEE HAS EFFECTIVELY COUNTERED BY CITING PA RAS 25-26 OF THIS JUDGMENT, AS UNDER: 25. THE ARGUMENT OF THE LEARNED COUNSEL THAT THE A O IS ALSO FREE TO DISTURB INCOME, EXPENDITURE OR DEDUCTION DE HORS THE INCRIMINATING MATERIAL, WHILE MAKING ASSESSMENT UND ER SECTION 153A OF THE ACT IS ALSO NOT BORNE OUT FROM THE SCHE ME OF THE SAID PROVISION WHICH AS NOTICED ABOVE IS ESSENTIALL Y IN CONTEXT OF SEARCH AND/OR REQUISITION. THE PROVISIONS OF SEC TIONS 153A TO 153C CANNOT BE INTERPRETED TO BE A FURTHER INNINGS FOR THE AO AND/OR ASSESSEE BEYOND PROVISIONS OF SECTIONS 139(R ETURN OF 45 INCOME), 139(5) (REVISED RETURN OF INCOME), 147 (IN COME ESCAPING ASSESSMENT) AND 263 (REVISION OF ORDERS) O F THE ACT. 26. THE PLEA RAISED ON BEHALF OF THE ASSESSEE THAT AS THE FIRST PROVISION PROVIDES FOR ASSESSMENT OR REASSESSMENT O F THE TOTAL INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN THE SIX ASSESSMENT YEARS, IS MERELY READING THE AID PROVISI ON IN ISOLATION AND NOT I THE CONTEXT OF THE ENTIRE SECTI ON. THE WORDS ASSESS OR REASSESS HAVE BEEN USED AT MORE THAN ONE PLACE IN THE SECTION AND A HARMONIOUS CONSTRUCTION OF THE EN TIRE PROVISION WOULD LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE WORD ASSESS HAS BEEN USED IN THE CONTEXT OF AN ABATED PROCEEDINGS AND REASSESS HAS BEEN USED FOR COMPLETED ASSESSMENT PROCEEDINGS, WHICH WOULD NOT ABATE AS THEY ARE NOT PENDING ON THE DATE OF INTIMATION OF THE SEARCH OR MAKING OF R EQUISITION AND WHICH WOULD ALSO NECESSARILY SUPPORT THE INTERPRETA TION THAT FOR THE COMPLETED ASSESSMENTS, THE SAME CAN BE TINKERED ONLY BASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COUR SE OF SEARCH OR REQUISITION OF DOCUMENTS. 5.1. THE ISSUE IS NOT OF THE LEGAL CHALLENGE TO THE BLOCK ASSESSMENT ITSELF, THE ASSESSEES GROUNDS AND CONTENTIONS AGITATE ONE LEGAL ISSUE I.E. WHETHER IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DUR ING THE COURSE OF SEARCH ADDITION CAN BE MADE BY ASSESSING OFFICER AS UNDISC LOSED INCOME U/S 153A. MORE SO WHEN ALL THESE TRANSACTIONS ARE DISCLOSED B Y THE ASSESSEE IN THE ORIGINAL RETURNS OF INCOME AND ACCEPTED BY THE DEPA RTMENT A SUCH. THUS MERELY BECAUSE A SEARCH IS CONDUCTED AND EVEN THOUG H NO INCRIMINATING MATERIAL IS FOUND AS A RESULT THEREOF THE ORIGINAL ASSESSMENT OF THE ASSESSEE CAN NOT BE REVIEWED OR SUBSTITUTED BY A CHANGE OF OPINION ABOUT ANY CLAIM OF DEDUCTION, ALLOWANCE OR CLAIM OF EXEMPT INCOME. 5.2. IN OUR CONSIDERED VIEW, HONBLE DELHI HIGH COU RT IN THE CASE OF ANIL BHATIA (SUPRA) THOUGH HAS HELD THAT CONSEQUENT TO S EARCH ASSESSING OFFICER 46 HAS TO FRAME THE BLOCK ASSESSMENT FOR 6 YEARS. NEVE RTHELESS THE OTHER ISSUE WHICH HAS BEEN HELD IS TO THE EFFECT THAT ADDITION UNDER BLOCK ASSESSMENT CANNOT BE MADE U/S 153A AS UNDISCLOSED INCOME IF NO INCRIMINATING MATERIAL IS FOUND AS A RESULT OF SEARCH. THIS HAS BEEN FOLLO WED BY HONBLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL INDIA (SUPRA). BY NOW VARIOUS BENCHES OF THE ITAT INCLUDING DELHI HAVE UPHELD THIS VIEW AND DELETED SUCH ADDITIONS WHICH ARE NOT BASED ON INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH WHICH ARE CITED BY THE LD. COUNSEL AND ARE MENTIONE D ABOVE. IN VIEW THEREOF, ON THIS ISSUE WE HOLD THAT THE ASSESSING OFFICER CO ULD NOT HAVE MADE THESE ADDITIONS IN THE IMPUGNED ASSESSEE U/S 153A, THERE BEING NO INCRIMINATING MATERIAL INDICATING ANY UNDISCLOSED INCOME FOUND AS A RESULT OF SEARCH. THIS GROUND OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 5.3. COMING TO THE REJECTION OF BOOKS OF A/CS, THE ASSESSEE MAINTAINED REGULAR BOOKS OF A/CS WHICH ARE DULY AUDITED. NO IN CONSISTENCIES OR DEFECTS HAVE BEEN POINTED OUT THEREIN. THE ASSESSEE HAS PUR CHASED THE LAND AS AGRICULTURE LAND WHICH IS EVIDENCED BY THE PURCHASE DEED. THIS HAS BEEN ACCEPTED BY DEPARTMENT U/S 143(3) IN A.Y. 2006-07. THE ASSESSEE HAS CLAIMED TO HAVE CARRIED OUT AGRICULTURE OPERATIONS AND EARNED AGRICULTURE INCOME WHICH IS OFFERED IN THE RETURN OF INCOME, WH ICH IS ACCEPTED. CONVEYANCE OF SALE OF LAND ALSO DEMONSTRATES THAT T HE LAND IN QUESTION WAS AGRICULTURE LAND. IT HAS NOT BEEN DISPUTED THAT THE ASSESSEE ON ITS OWN AS AN INDEPENDENT ENTITY HAS NOT CARRIED OUT ANY DEVELOPM ENT ACTIVITY OR MOVED ANY APPLICATION FOR COMMERCIAL EXPLOITATION OF THE LAND TO ANY LOCAL, STATE OR CENTRAL AGENCY. THESE GLARING FACTS AND CIRCUMSTANC E DO NOT RAISE ANY OCCASION FOR REJECTION OF BOOKS. IF AT ALL, THE ASS ESSING OFFICER COULD HAVE CHANGED THE HEAD OF INCOME BY EXERCISING HIS ASSESS MENT POWER. IN THE 47 ABSENCE OF ANY WORTHWHILE DEFECT IN THE BOOKS OF AC COUNTS, REJECTION OF BOOKS WAS UNJUSTIFIED. THIS GROUND OF THE ASSESSEE IS ALSO ALLOWED. 5.4. COMING TO THE MERITS OF THE CASE, THE MAIN ALL EGATION OF THE LOWER AUTHORITIES IS TO THE EFFECT THAT THE ASSESSEE GRO UP TAKEN AS A WHOLE WAS ENGAGED IN VARIOUS ACTIVITIES OF REAL ESTATE DEVELO PMENT, THEREFORE, AN INFERENCE HAS BEEN DRAWN THAT THE ASSESSEE ALSO SHO ULD BE DEEMED TO BE ENGAGED IN REAL ESTATE BUSINESS. IN OUR CONSIDERED VIEW THIS ASSUMPTION HAS NO LEGS TO STAND. FIRST OF ALL LOWER AUTHORITIES HA VE NOT DEMONSTRATED THAT THE ASSESSEE AS A GROUP WAS ENGAGED IN DUBIOUS AND COLO URABLE DEVICES. IN A BIG GROUP LAUNCHING OF SEVERAL CORPORATE ENTITIES IS PE RMISSIBLE BY LAW AND EACH COMPANY IS AN INDEPENDENT ASSESSEE IN THE EYES OF LAW AND SEPARATELY ASSESSED. THEIR ACTIVITIES ARE TO BE ANALYZED ON TH E BASIS OF ACTUAL ACTIVITIES AND CANNOT BE IGNORED MERELY BECAUSE THE ASSOCIATE CONCERN IS ENGAGED IN SOME OTHER ACTIVITIES. THUS, THIS INFERENCE BY LOWE R AUTHORITIES AMOUNTS TO A PURE GUESS WORK AND CONJECTURE WHICH WE ARE UNABLE TO SUBSCRIBE. THEREFORE, GROUP COMPANIES BUSINESS ACTIVITIES, WH ICH ARE DISTINCT AND SEPARATE ENTITIES, CANNOT BE HELD AS A FACTOR TO DI SCARD THE ASSESSEES ACTUAL ACTIVITY, WHICH IS EVIDENCED BY RECORD. FURTHER, IT HAS BEEN DEMONSTRATED BY THE ASSESSEE THAT IT WAS MAINLY SOLITARY TRANSACTIO N OF THE ASSESSEE TO HOLD THE AGRICULTURE LAND IN QUESTION AS FIXED ASSET, CARRY OUT AGRICULTURE OPERATION THEREON AND SELL IT AS AGRICULTURE LAND. WE DO NOT FIND ANY FACTS ON RECORD TO HOLD ANY OTHER VIEW. THUS, WE ARE UNABLE TO SUBSCRI BE THE VIEW THAT ASSESSEE WAS ENGAGED IN ADVENTURE IN THE NATURE OF TRADE. 5.5. COMING TO THE NATURE OF AGRICULTURE LAND AND I TS GEOGRAPHY, IT HAS NOT BEEN DISPUTED THAT THE LAND IN QUESTION WAS SITUATE D OUTSIDE THE SPECIFIED 48 MUNICIPAL LIMITS AND AS PER THE PRESCRIPTION OF SE C. 2(14) IT DOES NOT AMOUNT TO AN ASSET. IN ORDER TO COME UNDER THE CANE OF CAP ITAL GAINS, THE LAW HAS FIRST TO QUALIFY AS AN ASSET AS PER I.T. ACT. THE INCOME ARISING FROM THE SALE OF AGRICULTURE LAND FALLS U/S 2(14)(III) READ WITH SEC . 10(1) AND IS TO BE TREATED AS AGRICULTURE INCOME. THE INTERPRETATION PUT BY THE L OWER AUTHORITIES IS OUT LANDISH AND BASED ON SURMISES AND CONJECTURES, DIV ORCED FROM THE ACTUAL FACTS. 5.6. APROPOS THE LOWER AUTHORITIES HOLDING THAT THE ASSESSEE WAS INTO ADVENTURE IN THE NATURE OF TRADE, THEREFORE, THE NA TURE, GEOGRAPHY AND ACTIVITY OF THE LAND SHOULD BE IGNORED, THE STATUTORY PROVIS IONS SHOULD BE GIVEN A GO BYE AND ASSESSEE IS TO BE SOME HOW HELD AS ENGAGED IN THE ADVENTURE IN THE NATURE OF TRADE AND TAXED ON EXEMPT INCOME. IN OUR VIEW, THERE IS NO ENABLING PROVISION IN THE INCOME TAX PRESCRIBING TH AT EVEN IF THE ASSESSEES INCOME IS EXEMPT BY A PROVISION, THEN IT CAN BE FOR CIBLY BROUGHT INTO THE TAX NET BY ASSUMING THE ASSESSEES ACTIVITY TO BE ADVEN TURE IN THE NATURE OF TRADE. IT IS A SETTLED POSITION BY HONBLE DELHI HIGH COUR T IN DELHI APARTMENTS PVT. LTD. AND DLF UNITED LTD. (SUPRA) THAT REAL ESTATE C OMPANIES CAN ALSO HOLD SEPARATE PORT FOLIO OF LAND AS STOCK IN TRADE AND A S INVESTMENT PORT FOLIO; THE SALE OF INVESTMENT PORTFOLIO IS ALWAYS TAXED AS CAP ITAL GAINS. THUS, ASSUMING WORST AGAINST ASSESSEE, EVEN IF IT IS INFERRED THAT IT HAS CARRIED ON BUSINESS ACTIVITY SO LONG AS IT HOLDS SPECIFIED AGRICULTURE LAND IN TERMS OF SEC. 2(14) I.E. NOT BEING AN ASSET; ITS TRANSFER WILL NEITHER ATTRACT CAPITAL GAIN TAX NOR CAN BE TREATED AS BUSINESS INCOME. IN VIEW OF THE FOREG OING AND RESPECTFULLY FOLLOWING THE CASE LAW CITED BY THE ASSESSEE WE HA VE NO HESITATION BUT TO HOLD THAT THE ASSESSEES GAINS WERE PROFITS FROM SA LE OF SPECIFIED AGRICULTURE LAND WHICH DOES NOT COME WITHIN THE DEFINITION OF A SSET AS PRESCRIBED U/S 49 2(14) AND BY VIRTUE OF SEC. 2(1A)(A) READ WITH SEC. 2(14)(III) R.W.S. 10(1) THE ASSESSEES GAINS FROM SALE OF SUCH AGRICULTURE LAND ARE EXEMPT INCOME. THUS, ASSESSEE SUCCEEDS ON ALL THE COUNTS. 6. IN THE RESULT, ASSESSEES APPEALS FOR BOTH THE A SSESSMENT YEARS IN QUESTION ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 27-12-2013. SD/- SD/- ( B.C. MEENA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27-12-2013. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR