Shivkumar Radheshyam Sharma, Nashik V. Income-tax Officer,

ITA 749/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9917 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-09-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 18-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income; Principle of natural justice; Cost of acquisition; Fair market value
• Section: 43CA; 50C; 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E . , , ! , ' # BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NO.749/PUN/2016 '% & '& / ASSESSMENT YEAR : 2011-12 SHRI SHIVKUMAR RADHESHYAM SHARMA, FLAT NO. 301, YELLOW ROSE APARTMENT, BEHIND RAVINDRA SCHOOL, KATHE GALLI, NEAR DWARKA CIRCLE, NASHIK-422 011 PAN : ABYPS9579D .... / APPELLANT (% / V/S. THE INCOME TAX OFFICER, WARD 2(1), NASHIK. / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : MS. SABANA PARVEEN / DATE OF HEARING : 17.09.2018 / DATE OF PRONOUNCEMENT : 26.09.2018 ) / ORDER PER D. KARUNAKARA RAO, AM : THIS IS THE APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF C IT (APPEAL)- 2, NASHIK, DATED 04.03.2016 FOR THE ASSESSMENT YEAR 2011-12. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER: 2 ITA NO. 749/PUN/2016 A.Y.2011-12 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LOWER AUTHORITIES HAS ERRED IN MAKING AN ADDITION O F RS.45,60,000/- AS SHORT TERM CAPITAL GAIN AS AGAINST BUSINESS INCO ME OF RS.7,70,000/- SHOWN FROM SALE OF PLOT OF LAND WHICH WAS HELD BY THE ASSESSEE AS STOCK IN TRADE IN THE JOINT VENTURE WIT H OTHER CO-OWNERS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LOWER AUTHORITIES HAS ERRED IN TREATING THE ASSET H ELD AS STOCK IN TRADE AS CAPITAL ASSET WITHOUT APPRECIATING THE TRANSACTI ON IN ITS ENTIRETY, SUCH ACTION THEREFORE NEEDS TO BE QUASHED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LOWER AUTHORITIES HAS ERRED IN APPLYING THE PROVISI ONS OF SECTION 50C TO THE STOCK IN TRADE WITHOUT CONSIDERING THE FACT THA T SUCH TRANSACTION DO NOT COME IN THE AMBIT OF TERM CAPITAL ASSET, THEREF ORE, NO ADDITION IS WARRANTED. THE APPELLANT CRAVES FOR TO LEAVE, ADD, ALTER, MODI FY, DELETE ABOVE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING, IN THE INTEREST OF NATURAL JUSTICE. 3. BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF TRADING, BROKERAGE/COMMISSION OF IRON AND STEEL, CEMENT ETC. THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INC OME OF RS.8,64,460/-. THEREAFTER, THE ASSESSING OFFICER MADE ASSESSM ENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRE D TO AS THE ACT) AND DETERMINED THE TOTAL INCOME OF ASSESSEE AT RS.46,54,4 60/-. THE ASSESSING OFFICER MADE ADDITION ON ACCOUNT OF SHORT TERM C APITAL GAIN AMOUNTING TO RS.45,60,000/-. THE FACTS RELATING TO THIS ADDIT ION INCLUDE THAT THE ASSESSEE OWNED SHARE OF PLOT OF LAND ADMEASURIN G 1660 SQ. MTR. LOCATED AT NASHIK (SURVEY NO.272/3/3). THE ASSESSEE PU RCHASED THIS LAND ON 31.12.2007 AND HIS SHARE OF COST BEING 50%, WORKS OUT TO RS.12,30,000/-. SUBSEQUENTLY, THE SAID PLOT OF LAND WAS SOLD IN THE YEAR UNDER CONSIDERATION FOR SUM OF RS.40,00,000/-. DURING ASSESS MENT PROCEEDINGS, ON FINDING THAT THE ASSESSEES FAILURE TO OFFER ANY CAPITAL GAINS ON THIS TRANSACTION, THE ASSESSING OFFICER HELD THE ASSET IN QUESTION IS NOT STOCK-IN-TRADE AND TREATED THE SAME AS INVESTMENT ASS ET. EVENTUALLY, ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 50C OF T HE ACT. AS PER 3 ITA NO. 749/PUN/2016 A.Y.2011-12 REGISTRATION AUTHORITY, THE VALUE OF THE PROPERTY IS RS.1, 15,80,000/- AS AGAINST RS.40,00,000/- SHOWN IN THE SALE DEED. ACCORDINGLY, THE ASSESSING OFFICER HELD THE ASSET SOLD AS A CAPITAL ASSET AND 50% O F THE GAIN ACCRUED PERTAINS TO THE ASSESSEE WAS TREATED AS SHORT TERM CAPITAL GAIN. FURTHER, ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM AS THE BU SINESS PROFITS. THE SALE OF IMMOVABLE PROPERTY DOES NOT CONSTITUTE A BUSINESS TRANSACTION. EVENTUALLY, ASSESSING OFFICER MADE ADDITION OF RS.45,60,000/- IN THE YEAR UNDER CONSIDERATION UNDER THE HEAD CAPITAL GAINS. PARA 8 AND 9 OF THE ASSESSMENT ORDER ARE RELEVANT IN THIS REGARD AND FOR TH E SAKE OF COMPLETENESS, THE SAME ARE EXTRACTED AS UNDER: 8. THE SUBMISSION GIVEN BY THE ASSESSEE DATED 05.02 .2014 WAS DULY CONSIDERED. THE CONTENTION OF THE ASSESSEE THAT HE HAS SHOWN THE AMOUNT OF RS.12,30,000/- AS STOCK IN HAND IN THE EA RLIER YEARS FINANCIAL STATEMENTS, IS NOT PROVED BY THE ASSESSEE . HE COULD NOT ABLE TO PRODUCE THE BALANCE SHEET SHOWING THE ABOVE PLOT AS STOCK IN TRADE IN ANY OF THE PREVIOUS YEARS BALANCE SHEET. MOREOV ER, IN THE BALANCE SHEET AS ON 31.03.2009, THE ASSESSEE HAS SHOWN THIS PLOT IN HIS FIXED ASSETS. THIS CLEARLY SHOWS THE INTENTION OF THE ASS ESSEE THAT BY SHOWING THIS TRANSACTION AS THE BUSINESS TRANSACTIO N, HE WILL BE EVADING THE CAPITAL GAIN TAX ON THE SALE OF THIS PL OT. SINCE THE ASSESSEE HAS NOT DONE ANY BUSINESS OF PURCHASE/ SALE OF THE LANDS DURING THE PERIOD OF THREE YEARS I.E. F.Y. 2008-09, 2009-10 AN D 2010-11, EXCEPT THIS PROPERTY. ALSO THE CHARACTER OF THE TRANSACTIO N SHOWN IN THE FINANCIAL STATEMENTS FOR THESE YEARS IS ALSO NOT IN DICATING IT AS STOCK IN TRADE. THEREFORE, I AM OF THE CONSIDERED VIEW THAT T HE SALE OF PLOT OF 1660 SQ. MTR. LOCATED AT SURVEY NO. 272/3/3, NASHIK FOR THE SALE OF CONSIDERATION OF RS.1,15,80,000/- ON 11.10.2010 IS NOT TO BE TREATED AS BUSINESS TRANSACTION, BUT IS TO BE BROUGHT TO THE T AX UNDER THE HEAD CAPITAL GAIN. AS THE PROPERTY WAS HELD FOR THE PERI OD 31.12.2007 TO 11.10.2010, I.E. LESS THAN THE PERIOD OF 36 MONTHS, THE SHORT TERM CAPITAL GAIN HAS ARISED FROM THE SALE OF THIS PROPE RTY AND NEEDS TO BE BROUGHT TO TAX. THE ASSESSEE HAS SHOWN THE PROFITS FROM THE SALE OF IMMOVABLE PROPERTY AS THE BUSINESS INCOME INSTEAD OF OFFERING THE CAPITAL GAIN DERIVED FROM THE SALE OF THIS PROPERTY , TO TAX. THUS, THE ASSESSEE HAS FURNISHED THE INACCURATE PARTICULARS O F HIS INCOME FOR THE A.Y.2011-12. HENCE, THE PENALTY PROCEEDINGS U/S. 27 1(1)(C) WILL BE INITIATED SEPARATELY. 9. THE SHORT TERM CAPITAL GAIN ON THE SALE OF FLAT BY THE ASSESSEE IS COMPUTED AS UNDER : COST OF ACQUISITION OF THE FLAT : RS.23,16,000/- ADD: STAMP DUTY RS.1,15,800/- REGISTRATION FEE RS. 23,580/- 4 ITA NO. 749/PUN/2016 A.Y.2011-12 OTHER EXPENSES RS. 4,620/- NET COST OF THE PLOT: RS.24,60,000/- SALE CONSIDERATION OF THE PLOT: RS.1,15,80,000/- (APPLYING SECTION 50C OF THE ACT.) SHORT TERM CAPITAL GAIN EARNED: RS.91,20,000/- 50% SHARE OF THE ASSESSEE IN STCG RS.45,60,000/- 4. AGGRIEVED WITH THE ASSESSMENT ORDER, ASSESSEE FILED AP PEAL BEFORE THE CIT(A). DURING FIRST APPELLATE PROCEEDINGS, THE ASSESSEE COU LD NOT IMPROVE HIS CASE. THE MAIN ISSUE BEFORE THE FIRST APPELLATE AUTHOR ITY RELATES TO THE INTENTION OF THE ASSESSEE WHEN THE ASSESSEE FIRST PURCHA SED THE SAID PLOT OF THE LAND WORTH RS.12.30 LAKHS. THE ASSESSEE COULD NOT DE MONSTRATE THAT THE ASSET PURCHASED BY THE ASSESSEE CONSTITUTES BUS INESS ASSET OR A STOCK- INTRADE. THE CIT(A) DISCUSSED THIS ISSUE ELABORATELY VIDE P ARA 10 OF HIS ORDER AND EXAMINED THE FINANCIAL STATEMENT AND HELD THAT THE IMPUGNED ASSET WAS FIXED ASSET AND NOT A STOCK-IN-TRADE. C ONTENTS OF PARA 10 OF THE CIT(A)S ORDER IS RELEVANT IN THIS REGARD AND SAME IS EXTRACTED AS UNDER: 10. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND RIVAL CONTENTIONS. ON PERUSAL OF THE SAME IT HAS BEEN NOT ICED AT THE OUTSET THAT THE CONTENTIONS RAISED BY THE APPELLANT WERE REASONABLY REBUTTED BY THE A.O. IN THE ASSESSMENT O RDER. IN ORDER TO DECIDE WHETHER THE ASSESSEE HAD EARNED BUSINESS INCOME OR CAPITAL GAIN OF SALE OF PLOT/LAND, THE INTENTION OF THE PURCHASER AT THE TIME OF PURCHASE WAS RELEVANT. THIS PROPOSITION OF LAW IS SUPPORTED BY THE DECISION OF HON'BLE SUPREME COURT IN THE FOLLOWING CASES. I) CIT VS. PVK CO. LTD. (1966) 66 ITR 65 (SC) II) JANKI RAM BAHADUR RAM VS. CIT (1965) 57 ITR 21 (SC) III) SAROJKUMAR MAZUMDAR VS. CIT (1959) 37 ITR 242(SC) THE DECISIONS RELIED ON BY THE APPELLANT ARE NOT AP PLICABLE TO THE FACTS OF THE CASE UNDER APPEAL, AS IN THE SAID DECISIONS THE ASSESSEE HAD TRANSFERRED PLOT WHICH WAS STOCK IN TR ADE OF THE ASSESSEE, WHEREAS IN THE CASE UNDER APPEAL THE IMPU GNED PLOT WAS NOT STOCK IN TRADE BUT FIXED ASSET. 5 ITA NO. 749/PUN/2016 A.Y.2011-12 FROM THE BALANCE SHEETS FILED BY THE APPELLANT FOR ASSESSMENT YEARS 31/03/2008 AND 31/03/2009 IT HAS BEEN NOTICED THAT THE IMPUGNED PLOT WAS SHOWN ALONG WITH OTHER FIXED ASSE TS AND WAS NOT SHOWN AS STOCK IN TRADE. IT HAS ALSO BEEN NOTIC ED THAT THE RETURN OF INCOME FOR A.Y. 2010-11 WAS FILED BY THE APPELLANT ON 22/10/2011 I.E. AFTER SALE OF THE IMPUGNED PLOT OF LAND ON 11/10/2010 AND IN THE SAID BALANCE SHEET FOR A.Y. 2 010-11 THE APPELLANT HAD SHOWN THE IMPUGNED PLOT AS STOCK IN T RADE. IT IS EVIDENT THAT AFTER SALE OF THE PLOT ON 11/10/2010 T HE APPELLANT WAS AWARE ABOUT THE APPLICABILITY OF PROVISIONS OF SECTION 50C AND HENCE THE APPELLANT HAD ACCORDINGLY SHOWN THE I MPUGNED PLOT AS STOCK IN TRADE IN THE BALANCE SHEET FILED A FTER ENTERING INTO THE SALE DEED. FURTHER THE APPELLANT HAD ALSO CLAIM ED THAT IN THE SALE DEED IT HAS BEEN MENTIONED THAT 'SINCE SELLERS ARE NOT IN THE POSITION TO DEVELOP THE PLOTS THEREFORE THEY ARE SE LLING THIS PLOT.' IN THIS REGARD ALSO IT IS EVIDENT THAT AT THE TIME OF SALE OF PLOT ON 11/10/2010 THE APPELLANT WAS AWARE ABOUT THE APPLIC ABILITY OF PROVISIONS OF SECTION 50C AND HENCE THE APPELLANT H AD ACCORDINGLY MENTIONED THE ABOVE PREAMBLE IN THE SAL E DEED. IN VIEW OF THE ABOVE FACTS OF THE CASE WHAT IS REL EVANT TO DECIDE THE ISSUE UNDER APPEAL IS THE INTENTION OF T HE APPELLANT AT THE TIME OF PURCHASE OF THE IMPUGNED PLOT IN VIEW O F THE ABOVE MENTIONED DECISION OF HON'BLE SUPREME COURT. IN THE CASE UNDER APPEAL THE INTENTION OF THE APPELLANT AT T H E TIME OF PURCHASE OF PLOT IS SUPPORTED BY THE BALANCE SHEETS AS AT 31/03 /2008 AND 31/03/2009, WHEREIN THE APPELLANT HAD SHOWN THE IMP UGNED PLOT AS FIXED ASSET. FURTHER THERE IS NO CIRCUMSTANTIAL EVIDENCE IN FAVO UR OF THE APPELLANT, SUPPORTING HIS CONTENTION AS DURING 2007 TO 2011 , THE APPELLANT HAS NOT POINTED OUT THAT HE HAD ENTERED I NTO ANY OTHER TRANSACTION IN REAL ESTATE. FURTHER THE CONTENTION OF THE APPELLANT THAT THERE WAS ORAL AGREEMENT OF JOINT VENTURE FOR DEVELOPING THE IMPUG NED PLOT IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE AND HENCE CAN NOT BE ACCEPTED. IN VIEW OF THE ABOVE FACTS AND DISCUSSION, I AM OF THE CONSIDERED VIEW THAT THE A.O. IS JUSTIFIED IN REJECTING THE CONTENTION OF THE APPELLANT THAT THE IMPUGNED TRANSACTION IS B USINESS TRANSACTION. THE A.O. IS THEREFORE JUSTIFIED IN ASSESSING SHORT TERM CAPITAL GAIN ON SALE OF PLOT AT RS.45,60,000/- AS A GAINST BUSINESS INCOME DECLARED BY THE APPELLANT AT RS.7,70,000/-. THE ADDITION OF RS.37,90,000/- IS THEREFORE CONFIRMED. GROUND NO S. 1, 2 & 3 ARE DISMISSED. 5. AGGRIEVED BY THE ABOVE FINDINGS OF THE CIT(A), THE ASSESSEE IS IN AP PEAL BEFORE US RAISING GROUNDS AS EXTRACTED ABOVE. 6 ITA NO. 749/PUN/2016 A.Y.2011-12 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE NARRATED THE FACTS OF THE CASE AND SUBMITTED THAT THE ASSESSEE PURCHASED THE S AID LAND ALONG WITH TWO OTHER CO-OWNERS NAMELY, SHRI PRAKASH S. DIYALANI AND NAVIN AMRUTLAL TULSHIYANI HUF. HE FURTHER STATED THAT THE SAID TWO CO- OWNERS TREATED THEIR SHARE OF INTEREST IN THE LAND AS BUSINESS ASSET AND FILE D COPIES OF ASSESSMENT ORDER AND CONCERNED BALANCE SHEET IN THE C ASE OF NAVIN AMRUTLAL TULSHIYANI HUF WHERE THE SHARE OF LAND IS SHOWN AS CLOSING STOCK. FURTHER, HE BROUGHT OUR ATTENTION TO BALANCE SH EET AS ON 31 ST MARCH, 2008 AND MENTIONED THE SAID PLOT LOCATED AT NASHIK (SURVEY NO.272/3/3) WAS SHOWN AS ASSET WITH A VALUE OF RS.12,30, 000/-. CONTENTS OF PAGE 66 OF THE PAPER BOOK ARE RELEVANT IN THIS REGAR D. FURTHER, BRINGING OUR ATTENTION TO THE SUBSEQUENT YEARS BALANCE SHEET I.E. AS ON 31 ST MARCH, 2009, LD. COUNSEL SUBMITTED THAT THE LAND IS NEVER CATEGO RIZED AS FIXED ASSET (PAGE NO. 59 OF THE PAPER BOOK). IN THIS REGARD, LD. COUNSEL SUBMITTED THAT CATEGORIZATION OF THE ASSET MERELY AS AN ASSET IN THE YEAR OF ACQUISITION I.E. ASSESSMENT YEAR 2008-09 MUST NOT BE DECID ED AS AN CAPITAL ASSET AND AGAINST THE ASSESSEE. FURTHER, LD. CO UNSEL REITERATED THE OTHER ARGUMENTS MADE BEFORE THE REVENUE AUTHORITIES. LD . COUNSEL FOR THE ASSESSEE PRAYED FOR TREATING THE ASSET AS BUSINESS AS SET OR STOCK-IN-TRADE AND REQUESTED FOR NOT INVOKING THE PROVISIONS OF SECTION 5 0C OF THE ACT IN RESPECT OF THE SAID PLOT OF LAND. HE FURTHER MENTIONED THE PROVISIONS OF SECTION 43CA OF THE ACT ARE NOT IN STATUTE AT THE RELEV ANT POINT I.E. ASSESSMENT YEAR 2011-12. THIS AMENDMENT IS BROUGHT UND ER STATUTE IN FINANCE ACT, 2013 W.E.F. 01.04.2014. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAV ILY ON THE ORDER OF ASSESSING OFFICER AND THE CIT(A). LD. DR SUBMITTED THAT T HE ASSET IN 7 ITA NO. 749/PUN/2016 A.Y.2011-12 QUESTION WAS NEVER THE STOCK-IN-TRADE; BUT IT IS A FIX ED ASSET. THE SAME IS EVIDENT FROM THE FINANCIAL STATEMENT RELEVANT TO ASSESSM ENT YEAR 2008-09 AND 2009-10. BRINGING OUR ATTENTION THE PAPER BOOK I.E. B ALANCE SHEET FOR SAID FINANCIAL YEARS, LD. DR SUBMITTED THAT THE ASSESSEE NE VER CATEGORIZED THE SAID ASSET AS BUSINESS ASSET I.E. CLOSING STOCK FOR C LAIMING THE PROFIT ON SALE OF IT AS BUSINESS INCOME. LD. DR FURTHER SUBMITTE D THAT THE PROVISION OF SECTION 50C OF THE ACT IS SQUARELY APPLICABLE T O THE CAPITAL ASSET OF THIS KIND AND THEREFORE, ORDER OF CIT(A) SHOULD BE CONFIRMED IN FULL. 8. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE OF NATU RE OF ASSET SOLD BY THE ASSESSEE ON 11.10.2010. THERE IS NO DISPUTE ON (I) THE EXTENT OF SHARE IN THE LAND LOCATED AT NASHIK, (II) THE ASSESSEE OWNS 50% (III) PURCHASE COST OF THE SAME IS UNDISPUTEDLY RS.12,30,000/- (IV) RS.1,15,80,000/- IS THE FAIR MARKET VALUE AS PER REGISTRATION AUTHORITIES AND THE ASS ESSEE HELD THE LAND FOR A PERIOD OF AROUND 34 MONTHS. WE HAVE ALSO CONSIDERED THE FACT THAT ASSESSEE IS A COMMISSION AGENT. COMING TO THE BALANCE SH EET ENTRIES BY THE ASSESSEE, WE FIND THE ASSET IS SHOWN IN THE BALANCE SH EET NOT AS CLOSING STOCK. ALONG WITH OTHER FIXED ASSETS, ASSESSEE ENLISTED T HE PRESENT LAND I.E. PLOT OF LAND AT NASHIK AS ONE OF THE ASSET. THE SAID ASSET IS SHOWN IN THE BALANCE SHEET ALONG WITH FLAT AT SARVOTTAM SOCIETY, LAND AT CHANDSI, AGRICULTURAL LAND, LAND AT GOTHEGHAR ETC. SIMILAR ENTRIES ARE MADE IN FINANCIAL STATEMENT FOR BOTH THE FINANCIAL YEARS 2008-09 AND 2009- 10. 9. WE HAVE ALSO EXAMINED THE COPIES OF RETURN FILED BY THE ASSESSEE IN THE CASE OF NAVIN AMRUTLAL TULSANI HUF FOR ASSESSMENT YEA R 2011-12 AND FOUND THE SAME IS NOT USEFUL IN ANY WAY BECAUSE THE ASSE T WAS ALREADY SOLD IN THE YEAR UNDER CONSIDERATION. THE LD. COUNSEL COULD NOT FILE RETURN OF INCOME FOR THE OTHER CO-OWNERS. THE LD. COUNSEL FOR THE A SSESSEE SHOULD 8 ITA NO. 749/PUN/2016 A.Y.2011-12 HAVE FILED BALANCE SHEET, IF ANY, FOR THE ASSESSMENT YEAR 20 08-09 AND 2009- 10 FOR KNOWING THE INITIAL INTENTION OF THE CO-OWNERS OF THE ASSET TOO. THUS, COPY OF RETURN FILED BY THE LD. COUNSEL IN THE CASE OF SHR I NAVIN AMRUTLAL TULSHIYANI HUF IS OF NO ASSISTANCE. IN ANY CASE, THE INTENT ION OF THE CO- OWNER CAN VARY AND THE SAME IS NOT BINDING ON THE ASSE SSEE. THEREFORE, WE ARE OF THE OPINION THAT INITIAL INTENTION OF THE ASSESSEE IS S HOWING THE IMPUGNED ASSET ALONG WITH OTHER CO-OWNERS AS CAPITAL A SSET ONLY. ACCORDINGLY, THE ASSET ACQUIRED BY THE ASSESSEE SHOULD BE CONSIDERED AS CAPITAL ASSET ONLY. THERE IS NO WAY TO CONSIDER THE S AID ENTRY OF THE LAND I.E. PLOT OF LAND AT NASHIK, SURVEY NO. 272/3/3 VALUED RS.12,3 0,000/- AS CLOSING STOCK. THE PROVISIONS OF SECTION 43CA OF THE ACT CANNOT BE INVOKED AS ADVANCED BY THE LD. COUNSEL BEFORE US AND THE SAME IS NOT RELEVANT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, WE ARE OF THE OPINION THAT DECISIONS OF THE AO/CIT(A) IS FAIR AND REASONABLE IN THIS REGARD AND THE SAME DOES NOT CALL FOR ANY INTERFERENCE. RELEVANT PARAGRA PHS ARE ALREADY EXTRACTED IN THE PRECEDING PARAGRAPHS OF THE ORDER. ACC ORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 26 TH DAY OF SEPTEMBER, 2018. SD/- SD/- ( ! /VIKAS AWASTHY) ( . / D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; !' / DATED : 26 TH SEPTEMBER, 2018. SB 9 ITA NO. 749/PUN/2016 A.Y.2011-12 ) * +',- . ', / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL)-2, NASHIK. 4. THE PR. CIT-2, NASHIK. 5. %&' () , * () , +,- , / DR, ITAT, A BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // * 2 / BY ORDER, 3 (- /PRIVATE SECRETARY * () , / ITAT, PUNE.