The DCIT, Circle-9, Ahmedabad V. M/s. Ashwamegh Co.Op. Housing Society Ltd., Vibhag-1, Ahmedabad

ITA 3261/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6113 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 19-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO. 3261/AHD/2015 WITH CO NO. 222/AHD/15 (ASSESSM ENT YEAR: 2011- 2012) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE- 3(3), AHMEDABAD APPELLANT VS. M/S. ASHWAMEGH CO.OP. HOUSING SOC. LTD., VIBHAG-1, 2 ND FLOOR, SARTHIK AVENUE, NR. FUN REPUBLIC, SATELLITE, AHMEDABAD RESPONDENT/CROSS OBJECTOR PAN: AAAAA8010D /BY REVENUE : SHRI PRASOON KABRA, SR. D.R. /BY ASSESSEE : SHRI DHIREN SHAH, A.R. /DATE OF HEARING : 06.02.2018 /DATE OF PRONOUNCEMENT : 12.02.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS REVENUES INSTANT APPEAL AND ASSESSEES CROSS OBJECTIONS FOR ASSESSMENT YEARS 2011-12 ARISES AGAINST THE CIT(A)-3, AHMEDABA DS ORDER DATED 11.09.2015, IN CASE NO. CIT(A)-3/ITO/WD.3(3)(1)/117/14-15, IN PROC EEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 2 - 2. THE REVENUE PLEADS TWO FOLDED SUBSTANTIVE GROUND S IN CHALLENGING THE LOWER APPELLATE AUTHORITIES ORDER REVERSING ASSESSING OF FICERS ACTION DURING ASSESSEES INCOME OF RS.1,37,26,086/- FROM LAND TRANSACTIONS A S BUSINESS INCOME THAN CLAIMED AS CAPITAL GAINS AT TAX PAYERS BEHEST AS WELL AS I N DISALLOWING COMPENSATION PAID TO M/S. AGARWAL ESTATE ORGANIZERS PVT. LTD. AMOUNTING TO RS.3,34,780/-; RESPECTIVELY. THE TAX PAYERS CROSS OBJECTION ON THE OTHER HAND S UPPORTS THE CIT(A)S ORDER ON BOTH ISSUES. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 3. WE NOTICE AT THE OUTSET THAT THE REVENUES FORME R SUBSTANTIVE GROUND IN SEEKING TO TREAT ASSESSEES INCOME FROM LAND TRANSA CTIONS OF RS.1,37,26,806/- AS BUSINESS INCOME IS ALREADY COVERED IN TAX PAYERS F AVOUR IN PRECEDING ASSESSMENT YEAR. THE LEARNED CIT(A) HAS ALSO FOLLOWED HIS PRE CEDING ASSESSMENT YEARS OR IN ASSESSEES OWN CASE QUA THE VERY PROJECT IN HOLDING THAT THE INCOME IN QUESTION TO BE TREATED AS ITS CAPITAL GAIN. THE REVENUE FILED ITA NO.1524/AHD/2014. THE CO- ORDINATE BENCH HAS UPHELD THE CIT(A)S IDENTICAL O RDER THEREIN AS UNDER: 3. LEARNED AUTHORIZED REPRESENTATIVE INFORMS US T HAT ASSESSEES CROSS OBJECTIONS SUPPORT THE CIT(A)S ORDER(S) REVERSING ASSESSING OFFICERS ACTION TREATING PROFITS DERIVED FROM SALE OF PLOTS AS BUSI NESS INCOME INSTEAD OF CAPITAL GAINS. HE THEREAFTER SUBMITS THAT THE INSTANT LIS RAISES SOLE ISSUE OF BUSINESS INCOME VIS--VIS CAPITAL GAINS PERTAINING TO THE ABOVE SAL E OF PLOTS. WE PROCEED IN THIS FACTUAL BACKDROP TO NOTICE THAT THE CIT(A)S ORDER IN FORMER APPEAL PLACES RELIANCE UPON HIS ORDER IN LATTER APPEAL IN DECIDING THE ABO VE ISSUE AFTER TAKING INTO ACCOUNT RELEVANT FACTS, ASSESSEES PLEADINGS AND ASSESSING OFFICERS FINDINGS AS FOLLOWS: 2.3 DECISION : I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER AN D THE SUBMISSION MADE BY THE APPELLANT DURING THE COURSE OF APPELLATE PRO CEEDINGS. IT IS NOTED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE CASE OF ASHWAMEGH CO. OP HOUSING SOCIETY LIMITED VLBHAG - 2, THE APPEAL FOR WHICH HAS BEEN DECIDED BY ME VIDE ORDER NUMBER CIT(A)VIII/DCIT, CIR. 9/273 /2013-14 OF EVEN DATE FOR THE SAME ASSESSMENT YEAR. THE FACTS OF THE PRES ENT CASE ARE IDENTICAL, THE SUBMISSION OF THE APPELLANT AND THE FINDINGS GIVEN BY THE AO ARE ALSO SIMILAR. THE DECISION GIVEN BY ME FOR THAT CASE WIL L THEREFORE BE APPLICABLE TO PRESENT CASE ALSO. FOR THE SAKE OF CONVENIENCE T HE FINDINGS GIVEN BY ME IN THAT CASE ARE REPRODUCED HERE UNDER: - 'I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER A ND THE SUBMISSION MADE BY THE APPELLANT DURING THE COURSE OF APPELLATE PRO CEEDINGS. THE APPELLANT ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 3 - HAS SOLD SOME PLOTS OF LAND DURING THE YEAR THE SUR PLUS HAS BEEN SHOWN BY THE APPELLANT AS LONG TERM CAPITAL GAIN. THE AO HAS TREATED THE SURPLUS AS BUSINESS INCOME. IT WAS HELD BY HIM THAT THE APPELL ANTS PURCHASE AND THE SALE TRANSACTIONS TRANSACTION WITH RESPECT TO THE L AND PROPERTIES IN QUESTION WAS AN ADVENTURE IN THE NATURE OF TRADE. THE BRIEF FACTS RELATED TO THE ISSUE ARE THAT TH E APPELLANT PURCHASED AGRICULTURAL LANDS DURING THE PERIOD FROM 92- 93 TO 95 - 96. THE APPELLANT, WHICH WAS FORMED AS A CO-OPERATIVE SOCIETY WAS LATE R ON CONVERTED INTO A HOUSING SOCIETY LTD. THE LAND WHICH WAS PURCHASED W AS LYING WITH THE APPELLANT SINCE THE DATE OF ACQUISITION. THEREAFTER , IF ENTERED INTO A DEVELOPMENT AGREEMENT WITH AGARWAL ESTATE ORGANISER S PVT LTD FOR DEVELOPING THE LAND AND CONVERTING IN PLOTS FOR AGR ICULTURE FARMS, FARMHOUSES ET CETERA. THE AGREEMENT FOR DEVELOPMENT WAS TERMINATED AS THE APPELLANT WANTED TO SELL THE PROPERTY. THE APPELLAN T PAID CERTAIN COMPENSATION/DAMAGES TO THE DEVELOPER. THEREAFTER, THE APPELLANT ENTERED INTO AN AGREEMENT OF SALE WITH NIRMA CHEMICAL WORKS LTD WHICH WAS ALSO TERMINATED IN THE YEAR 2005. THEREAFTER THE APPELLA NT ENTERED IN A DEVELOPING AND MARKETING AGREEMENT WITH NAVRATNA O RGANISERS AND DEVELOPERS PVT LTD (NODL). THE NODL DEVELOPED T HE SOCIETY AND THE PROJECT NAMED KALHAR EXOTICA. THE DEVELOPER SOLD CE RTAIN PLOTS AFTER THE DEVELOPMENT FOR WHICH THE SALE AGREEMENTS WERE SIGN ED BY THE APPELLANT. THE APPELLANT OFFERED THE GAIN AS CAPITAL GAIN IN T HE EARLIER YEARS IN THE RETURNS OF INCOME. THEREAFTER IN THE YEAR 2009 THE DEVELOPER, NODL, DECIDED TO TERMINATE THE DEVELOPMENT AGREEMENT. THE REAFTER, CERTAIN PLOTS OUT OF THE DEVELOPED SCHEME AND WHICH COULD NOT BE SOLD THROUGH THE DEVELOPER WERE SOLD BY THE APPELLANT DURING THE YEA R. THE PRESENT DISPUTE IS WHETHER THE SURPLUS ARISING OUT OF SUCH SALE IS TO BE FAXED AS CAPITAL GAIN OR BUSINESS INCOME. THE AO HAS HELD THAT IF WAS THE INTENTION OF THE AP PELLANT SINCE THE BEGINNING TO PURCHASE THE PROPERTY AND SELL IF FOR PROFIT. THE APPELLANT PLANNED AND SYSTEMATICALLY PURCHASED THOSE PROPERTI ES WITH THE INTENTION TO SELL IF FOR PROFIT. THE APPELLANT ON THE OTHER HA ND HAS SUBMITTED THAT IF HAS NOT CARRIED OUT ANY DEVELOPMENT WORK AFTER THE AGRE EMENT OF DEVELOPMENT WITH NODL WAS CALLED OFF. IT HAS SUBMITTED THAT THE BOOKS OF ACCOUNTS ARE SUBJECT TO GOVERNMENT AUDIT BY THE AUDITOR APPOINTE D BY THE REGISTRAR OF CO- OPERATIVE SOCIETY AND BALANCE SHEET AND PROFIT AND LOSS ACCOUNT CERTIFIED BY THE GOVERNMENT AUDIT. IT CAN BE SEEN FROM THOSE ACC OUNTS THAT THERE WERE NO DEVELOPMENT EXPENSES INCURRED BY THE APPELLANT SOCI ETY IN ITS BOOKS OF ACCOUNT. THE APPELLANT HAS FURTHER PLACED RELIANCE ON CERTAIN JUDGEMENTS OF VARIOUS HIGH COURTS AND TRIBUNALS IN SUPPORT OF ITS CLAIM THAT CONVERSION OF LAND INTO PLOTS AND SALE THEREAFTER WOULD NOT TANTA MOUNT TO BUSINESS ACTIVITY. AFTER CONSIDERING THE DETAILS IT IS NOTED THAT THOU GH THE LAND WAS ACQUIRED BY THE APPELLANT SOCIETY LONG BACK IT DID NOT UNDER TOOK ANY DEVELOPMENT ACTIVITY ON ITS OWN. FIRSTLY THE DEVELOPMENT WORK W AS GIVEN BY IT TO AGRAWAL ESTATE ORGANISERS. SINCE THE CONTRACT WAS CALLED OF F IT ENTERED INTO A SALE AGREEMENT WITH SOME OTHER PARTY WHICH WAS ALSO ULTI MATELY CALLED OFF AND THEREAFTER THE LAND OF THE APPELLANT SOCIETY WAS DE VELOPED BY NODL AND ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 4 - DURING THE PERIOD, THE LAND WAS UNDER THE DEVELOPME NT AGREEMENT, CERTAIN PLOTS WERE SOLD. THEREAFTER AND NODL ALSO WITHDREW FROM THE DEVELOPMENTAL ACTIVITY AND CERTAIN PLOTS REMAIN TO BE SOLD. THEREAFTER THE APPELLANT COMPANY SOLD THE PLOTS ITSELF. THE APPELL ANT DID NOT DO ANY DEVELOPMENT ACTIVITY NOR IT MADE ANY SYSTEMATIC EFF ORTS TO SELL THE LAND. THE ACTIVITY OF SALE OF LAND WAS THEREFORE NOT A BUSINE SS ACTIVITY BUT THE ACTIVITY OF SELLING OF ASSETS OWNED BY THE APPELLANT COMPANY . THE AO'S OBSERVATION THAT THE INTENTION OF THE APPELLANT WAS TO DO THE B USINESS RIGHT FROM THE TIME IT INITIALLY PURCHASED THE LAND IS NOT SUPPORTED BY ANY FACT. IT IS NOT NECESSARY TO SELL THE LAND IN BULK, THE LAND CAN BE SOLD IN PIECES AND YET THE ACTIVITY CANNOT BE TERMED AS BUSINESS ACTIVITY. IT IS NOTED FROM FACTS THAT AFTER THE INITIAL PURCHASE OF LAND BY THE ERSTWHILE MANDALI THERE IS NO PURCHASE OF LAND BY THE APPELLANT SOCIETY IN PAST Y EARS. SINCE THE LAND COULD NOT BE SOLD OUT AS ONE PIECE THE APPELLANT SOCIETY AND OTHER CO-OWNERS OF THE ADJOINING LAND DECIDED TO CONVERT THE SAME INTO PLOTTING SO THAT IT CAN BE EASILY DISPOSED OFF. AS IN THE CASE OF THE APPELLA NT, THERE IS, NO SYSTEMATIC ATTEMPT OF SELLING THE LAND AS BUSINESS ASSET. THE APPELLANT HAS NOT HIMSELF DONE THE ACTIVITY OF DEVELOPMENT AND SALE BUT THE S AME HAS BEEN DONE BY A DEVELOPER WHO HAS HELD THE APPELLANT IN SELLING THE LAND AFTER DEVELOPMENT. THERE WAS NO ORGANIZATION AND PLANNED ACTIVITY OF D EVELOPMENT SO FAR AS THE APPELLANT IS CONCERNED. THE APPELLANT HAS RIGHTLY PLACED RELIANCE ON JUDGEM ENT OF HONOURABLE MADRAS HIGH COURT REPORTED IN 62 ITR 578 IN THE CAS E OF KASTURI ESTATES WHEREIN IF WAS HELD THAT SALE OF LAND BY CONVERTING INTO PLOTS WAS NOT A VENTURE IN THE NATURE OF TRADE AS IF IS ONE ACTIVIT Y WHICH ANY PRUDENT OWNER OF LAND WOULD ENGAGE. IF WAS HELD BY THE HONOURABLE COURT THAT IN ABSENCE OF EVIDENCE OF ANY TRADING ACTIVITY OF THE SPECULAT IVE VENTURE THE ITAT WAS JUSTIFIED BY TREATING THE SURPLUS AS CAPITAL GAIN. SIMILAR VIEW HAS BEEN TAKEN IN THE JUDGEMENTS MENTIONED BY THE APPELLANT IN THE CASES OF SMT RADHABAI, 264 ITR 272 (DELHI], SURESH CHAND GOYAL, 298 ITR 27 7 (MP), MOHAMMAD MOHIDEEN 176 ITR 393 (MADRAS) AND PREMJI GOPALBHAI, 113 ITR 785 (GUJARAT). I HAVE ALSO CAREFULLY PERUSED THE JUDGEMENTS MENTIO NED BY THE AO IN THE ORDER. IT IS NOTED THAT OUT OF THE SEVERAL JUDGEMEN TS MENTIONED BY THE AO IN PARA 7.7 AND 7.8 OF HIS ORDER, ONLY TWO JUDGEMENT A PPEAR TO BE RELATED TO PURCHASE AND SALE OF LAND AND SIMILAR ISSUES WERE I NVOLVED. THE OTHER JUDGEMENTS ARE RELATED TO LASE AND SALE OF SHARES A ND OTHER MATTERS AND NO DEALING RELATED TO LAND WAS INVOLVED. THE JUDGEMENT WHICH IS OF SOME RELEVANCE TO THE PRESENT CONTEXT IS THAT OF HONOURA BLE SUPREME COURT IN THE CASE OF G VENKATA SWAMI NAIDU, 35 ITR 594. IN THAT JUDGEMENT THE ISSUE INVOLVED WAS THAT THE ASSESSEE WAS ACTING AS A MANA GING AGENT OF SOME MILL AND HE PURCHASED PLOTS OF LAND OF DIFFERENT SIZES. THE ASSESSEE WAS IN A POSITION TO INFLUENCE THE MILL TO PURCHASE THE LAND WHICH WAS PURCHASED BY HIM. THEREAFTER THE MILL PURCHASED THE SAID PROPER TY. IT WAS HELD BY THE HONOURABLE SUPREME COURT THAT SINCE THE ASSESSEE WA S INVOLVED IN THE DECISION-MAKING PROCESS OF PURCHASING THE LAND IT HAD PRIOR KNOWLEDGE AND INTENTION OF SELLING THE LAND TO THE MILL. IN THE PRESENT CASE THERE IS NO SUCH SITUATION. THERE IS NO FACT INDICATING THAT THE LAN D HAS BEEN PURCHASED WITH THE INTENTION OF GETTING IT DEVELOPED AND SELLING I T THEREAFTER. THE JUDGEMENT ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 5 - IS THEREFORE, RESPECTFULLY DISTINGUISHED. THE A NOTHER CASE WHICH IS THAT OF HONOURABLE GUJARAT HIGH COURT IN THE CASE OF PREMJI GOPALBHAI 113 ITR 785. IN THAT CASE THE PROFIT EARNED ON PURCHASE AND SALE AFTER PLOTTING WAS TREATED AS CAPITAL GAIN. THE INTENTION TO RESELL TH E LAND AT THE PROFIT IS NOT BORNE OUT BY ANY FACT. IN VIEW OF ABOVE DISCUSSION I AM OF THE CONSIDERED OPINION THAT THE SURPLUS SHOULD BE TAXED AS LONG TERM CAPITAL GAIN AS SHOWN BY THE APPELLANT AND THE WRITTEN AND THE ACTION OF THE AO IN TREATING THE IN COME AS BUSINESS INCOME IS THEREFORE, SET ASIDE.' FOLLOWING THE DECISION REPRODUCED ABOVE THE AO IS D IRECTED TO TAX THE SURPLUS SHOWN FROM SALE OF LAND AS LONG TERM CAPITA L GAIN. THE GROUND OF APPEAL IS ACCORDINGLY, ALLOWED. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS STRONGLY SUPPORTING THEIR RESPECTIVE CASES. WE FIRST OF ALL COME TO THE RELEVANT FACTS FORMING SUBJECT MATTER OF REVENUES APPEAL ITA NO.1524/AHD/ 2014. THE ASSESSEE WAS A COOPERATIVE SOCIETY EARLIER AS ESTABLISHED ON 01.03 .1995. IT ACQUIRED LANDS IN QUESTION OF AGRICULTURAL NATURE WAY BACK IN 1990S. IT THEREAFTER GOT CONVERTED ITSELF INTO A COOPERATIVE HOUSING SOCIETY. THE ASSESSEE T HEN ENTERED INTO A DEVELOPMENT AGREEMENT IN THE YEAR 2002 WITH M/S. AGARWAL ESTATE ORGANISER PVT. LTD. FOR DEVELOPMENT OF ITS AGRICULTURAL LAND IN QUESTION TO AGRICULTURAL FARMS AND FARM HOUSES ETC. THE SAME STOOD ANNULLED IN LIEU OF PAY MENT OF DAMAGES MADE TO THE ABOVESTATED DEVELOPER. THIS FOLLOWED ANOTHER DEVEL OPMENT AGREEMENT WITH M/S. NIRMA CHEMICAL WORKS LTD. IN THE YEAR 2002 AS CANCE LLED IN 2005. THE ASSESSEES LAST DEVELOPMENT AGREEMENT WAS WITH NAVRATNA ORGANI SERS & DEVELOPERS PVT. LTD. IN THE YEAR 2006. THE PROJECT IN QUESTION WAS TO B E NAMED AS KALHAR EXOTICA. THE SAID DEVELOPER THEREAFTER SOLD SOME OF THE PLOTS AF TER DEVELOPMENT. THIS IS NOT THE REVENUES CASE THAT THE ASSESSEE HAD UNDERTAKEN ANY RISK AND RESPONSIBILITY THEREIN IN THE NATURE OF ADVENTURE OR TRADE IN ALL THE SAID EPISODE. LEARNED DEPARTMENTAL REPRESENTATIVE ALSO DOES NOT DISPUTE THAT ASSESSEES INCOME DERIVED IN RELATION TO THE SAID EARLIER TRANSFERS WAS NEVER TREATED AS BUS INESS INCOME. IT EMERGES THAT THE THIRD DEVELOPER ALSO TERMINATED THE ABOVE DEVELOPME NT AGREEMENT IN THE YEAR 2009 I.E. THE PRECEDING ASSESSMENT YEAR. THIS MADE THE ASSESSEE TO SALE PLOTS IN QUESTION IN THE IMPUGNED ASSESSMENT YEAR. PAGE 2 OF THE CIT (A)S ORDER REVEALS THAT THE ASSESSEE SOLD TOTAL SIX PLOTS INVOLVING A GROSS AMO UNT OF RS.4,02,45,750/- IN THE IMPUGNED ASSESSMENT YEAR TREATED AS BUSINESS INCOME . WE ASKED THE LEARNED DEPARTMENTAL REPRESENTATIVE TO REFER TO ANY COGENT EVIDENCE WHICH COULD LEAD US TO A CONCLUSION THAT EITHER THE ASSESSEE HAD EVER UNDE RTAKEN RISK AND RESPONSIBILITIES IN EARLIER ASSESSMENT YEARS OR IT ITSELF ACTED AS A DEVELOPER AFTER THE OTHER PARTY HAD CANCELLED THE DEVELOPMENT AGREEMENT IN PRECEDING AS SESSMENT YEAR. THERE IS NO SUCH EVIDENCE ON BOTH COUNTS PRODUCED AT REVENUES BEHEST. IT THEREFORE EMERGES THAT THE ASSESSEE HAS SOLD THE PLOTS IN QUESTION WI THOUT MAKING ANY VALUE ADDITION TO THE DEVELOPERS EFFORTS IN THE IMPUGNED ASSESSME NT YEAR. WE REPEAT THAT THE ASSESSEE IS A REGISTERED COOPERATIVE SOCIETY WHEREI N ALL ITS BOOKS AND RECORDS ARE WELL AUDITED AS REGULATED BY COOPERATION BY LAWS. THERE IS AGAIN NO MATTER IN THE CASE FILE IN THE NATURE OF ANY AGENDA OR RESOLUTION SUGGESTING US THAT IT HAD EVER TAKEN ANY DEVELOPMENT ACTIVITY OF THE PLOTS IN QUES TION. WE THEREFORE SEE NO REASON TO INTERFERE IN THE LEARNED CIT(A)S CONCLUSION AS EXTRACTED IN PRECEDING PARAGRAPH FORMING SUBJECT MATTER OF CHALLENGE IN THE INSTANT APPEAL. THE REVENUES SOLE ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 6 - SUBSTANTIVE GROUND AS WELL AS ITS INSTANT APPEAL IT A NO.1524/AHD/2014 IS DECLINED. 4. LEARNED DEPARTMENTAL REPRESENTATIVE IS FAIR ENOU GH IN NOT DRAWING ANY DISTINCTION ON FACTS AS WELL AS LAW INVOLVED IN THE TWO ASSESSMENT YEARS IN QUESTION. WE THEREFORE UPHOLD CIT(A)S FINDINGS TREATING ASSE SSEES INCOME DERIVED FROM LAND TRANSACTIONS IN QUESTION AS CAPITAL GAINS BY F OLLOWING JUDICIAL CONSISTENCY. 5. THE REVENUES LATTER SUBSTANTIVE GROUND IS THAT LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN ALLOWING ASSESSEES COMP ENSATION PAID TO M/S. AGARWAL ESTATE ORGANIZERS PVT. LTD. AMOUNTING TO RS.3,34,78 0/- DESPITE THE FACT THAT THE SAID AMOUNT COULD NOT BE HELD TO BE COVERED U/S.48(I) OF THE ACT. WE FIND NO MERIT IN THE INSTANT LATTER SUBSTANTIVE GROUND AS WELL. THE CIT (A) HAS FOLLOWED HIS PRECEDING ASSESSMENT YEARS ORDER ON THE VERY ISSUE DELETING THE SIMILAR DISALLOWANCE. THE REVENUES APPEAL THEREIN (SUPRA) DID NOT CHALLENGE CORRECTNESS OF THE SAID LOWER APPELLATE ORDER. IT FURTHER TRANSPIRES THAT THE VE RY ISSUE HAD ARISEN IN ASSESSMENT YEAR 2006-07. THE ASSESSING OFFICER DID NOT MAKE A NY ADDITION IN REGULAR ASSESSMENT FRAMED U/S.143(3) OF THE ACT. HE THEREA FTER INITIATED REOPENING QUA THE VERY ISSUE. THE SAME WERE DROPPED (PAGE 323 AND 33 4 OF THE PAPER BOOK). LEARNED CIT-IV, AHMEDABAD ALSO INITIATED SECTION 263 PROCEE DINGS PROPOSING DISALLOWANCE ON IDENTICAL LINES IN ASSESSMENT YEAR 2006-07. PAG E(S) 337 AND 565 IN PAPER BOOK INDICATE THAT THE SAID PROCEEDINGS ALSO STOOD DROPP ED. ALL THIS MATERIAL HAS GONE UNREBUTTED FROM REVENUES SIDE. LEARNED COUNSEL RE PRESENTING ASSESSEE ALSO REFERS TO ASSESSMENT YEAR 2007-08 ASSESSMENT ORDER DATED 2 1.05.2009 AS WELL AS HONBLE GUJARAT HIGH COURTS JUDGMENT DATED 06.11.2012 IN P AGE 566 AND 569; RESPECTIVELY DECIDING THE VERY ISSUE AGAINST THE REVENUE. LEARN ED DEPARTMENTAL REPRESENTATIVE IS UNABLE TO CONTROVERT ALL THESE FACTS DURING THE COURSE OF HEARING. WE THEREFORE SEE NO REASON TO ADOPT A DIFFERENT APPROACH IN THE IMPU GNED ASSESSMENT YEAR QUA THE INSTANT LATTER SUBSTANTIVE GROUND AS WELL. THE SAM E IS THEREFORE DECLINED. THIS REVENUES APPEAL ITA NO.3261/AHD/2015 FAILS ACCORDI NGLY. ITA NO. 3261/AHD/15 WITH CO NO. 222/AHD/15 A.YS. 2011-12 [DCIT VS. M/S. ASHWAMEGH CO.OP. HOUSI NG SOC. LTD.] - 7 - 6. WE NOW COME TO ASSESSEES CO NO.222/AHD/2015 SUP PORTIVE OF CIT(A)S ORDER ON BOTH THE ABOVE TWO ISSUES. WE HAVE ALREAD Y UPHELD THE CIT(A)S FINDINGS QUA THESE TWO ISSUES. THE INSTANT CROSS OBJECTION I S THEREFORE RENDERED INFRUCTUOUS. 7. THE REVENUES APPEAL ITA NOS. 3261/AHD/2015 IS D ISMISSED WHEREASASSESSEES CO NO.222/AHD/2015 IS DISMISSED A S RENDERED INFRUCTUOUS. [PRONOUNCED IN THE OPEN COURT ON THIS THE 12 TH DAY OF FEBRUARY, 2018.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 12/02/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0