Mohd. Shakil Gouri, JODHPUR V. ITO, JODHPUR

ITA 84/JODH/2014

• Counselvise Citation: 8423314 RSA 2014
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: SHI U C JAIN; GOUTAM BAID
• Keywords: Sale consideration of property below Jantri Value; Business income; Opportunity of being heard; Cost of acquisition; Validity of assessment; Non compliance
• Section: 50C; 234B; 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 84 /JODH/2014 (A.Y. 200 8 - 09 ) MOHD. SHAKIL GOURI, 99, KAMLA NEHRU NAGAR, CHOPSANI HOUSING BOARD, JODHPUR. VS. ITO, WARD - 3(4), JODHPUR. PAN NO. AGEPG 0844 L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GOUTAM BAID & SHI U.C. JAIN . DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 0 1 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 23 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25/ 11 /2013 OF L D . CIT(A), J ODHPUR . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) ERRED IN UPHOLDING THE VALIDITY OF ASSESSMENT PROCEEDING INITIATED BY 2 ISSUING NOTICE U/S 143(2) ON 11/05/2011 FOR THE AY 2008 - 09 WITHOUT APPRECIATING THAT NO RETURN OF INCOME WAS FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S 148 AND NO NOTICE U/S 143(2) CAN BE ISSUED ON 11/05/2011 FOR THE AY 2008 - 09 FOR THE RETURN FILED U/S 139 ON 17/11/2008. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN UPHOLDING THE ASSESSMENT ORDER FRAMED U/S 144 WITHOUT APPRECIATING THAT THE ASSESSMENT ORDER U/S 144 WAS FRAMED BY THE LD. AO FOR NON COMPLIANCE OF NOTICES U/S 143(2) AND NOT FOR NON COMPLIANCE OF NOTICE U/S 148. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN SUSTAINING THE ADDITION OF RS. 63,17,885/ - AS LONG TERM CAPITAL GAIN IN THE HANDS OF ASSESSEE WITHOUT CONSIDERING THE COST OF LAND AND FURTHER WITHOUT APPRECIATING THAT THE ASSESSEE WAS OWNER OF ONLY L/4 TH PORTION OUT OF TOTAL LAN D SOLD. 4. WITHOUT PREJUDICES TO ABOVE AND IN THE ALTERNATIVE: A. THAT THE ASSESSEE PURCHASED THE LAND WITH INTENT TO RESALE THE SAME WITH PROFIT AND AS SUCH THE GAIN ARISES ON SALE HAS TO BE TAXABLE AS BUSINESS INCOME AND AS SUCH TA XING THE BUSINESS INCOME AS CAPITAL GAIN IS ERRONEOUS. 5. THAT THE CONSEQUENTIAL RELIEF FOR CHARGING INTEREST U/S 234A, 234B & 234C MAY KINDLY BE GIVEN. 6. THE APPELLANT CRAVE LIBERTY TO ADD, AMEND, ALTER, MODIFY, OR DELETE ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 7. THE APPELLANT PRAYED FOR THE JUSTICE. 2 GROUND NOS. 6 & 7 ARE GENERAL IN NATURE, SO DO NOT REQUIRE ANY COMMENTS ON OUR PART. AS REGARDS TO THE GROUND NOS. 1 & 2 , LEARNED COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARING STATED THAT HE HAS INSTRUCTION NOT TO PRESS THESE GROUNDS AND GAVE IN WIRING AS UNDER: - NOT PRESSED SD/ - X X X X 3 IN VIEW OF THAT, THESE GROUNDS ARE DISMISSED AS NOT PRESSED . 3. VIDE GROUND NOS. 3 & 4 , THE GRIEVANCE OF THE ASSESSEE RELATES TO THE SUSTENANCE OF ADDITION OF RS. 63,17,885/ - CONSIDERING THE SAME AS LONG TERM CAPITAL GAIN AND NOT AS BUSINESS INCOME . 4. FACTS RELATING TO THIS ISSUE, IN BRIEF, ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 17/11/2008 DECLARING AN INCOME OF RS. 1,58,000/ - . LATER ON, THE ASSESSING OFFICER ON THE BASIS OF INFORMATION FROM SUB - REGISTRAR, JODHPUR CAME TO KNOW THAT THE ASSESSEE SOLD A PROPERTY ON 13/08/2007 WHICH WAS NOT SHOWN IN THE BOOKS OF ACCOUNTS, ACCORDINGLY THE CASE WAS REOPENED U/S. 147/148 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) . S INCE THE ASSESSEE DID NOT RESPOND TO THE NOTICES ISSUED BY THE ASSESSING OFFICER, THE ASSESSMENT WAS FRA MED U/S. 144 OF THE ACT AND AN ADDITION OF LONG TERM CAPITAL GAIN AMOUNTING TO RS. 63,17,885/ - WAS MADE. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED AS UNDER: - I. THAT THE ASSESSEE ALONG WITH HIS MOTHER SMT. JAYDA GAURI ON 26/08/2004 PURCHASE D A PIECE OF LAND MEASURING 1 BIGHA AND 6 BISWA, SITUATED AT KHASRA NO 1105/740 AT JODHPUR. THE PURCHASE CONSIDERATION PAID FOR TOTAL LAND WAS RS. 3,00,000/ - . 4 II. THAT THE LAND WAS PURCHASED WITH THE INTENTION TO RESALE T HE SAME IN NEAR FUTURE WITH PROFIT. III THAT THE LAND SO PURCHASED MEASURING 1 BIGHA AND 6 BISWA ALONG WITH THE ADJOINING LAND MEASURING 1 BIGHA AND 6 BISWA OWNED BY SMT UMAID W/O SHRI NAJIR KHAN TOTALING 2 BIGHA AND 12 BISWA WAS SOLD BY A CONSOLIDATED SAL E DEED 13/08/2007. TOTAL CONSIDERATION OF THE LAND MEASURING 2 BIGHA AND 12 BISWA WAS RS. 20,00,000/ - OUT OF WHICH RS. 5,00,000/ - WAS RECEIVED BY THE ASSESSEE BY C H NO 976252 DATED 13/08/2007. RS. 5,00,000/ - WAS RECEIVED BY CO OWNER AND MOTHER OF THE ASSES SEE SMT JAYDA GAURI BY C H NO 976253 DATED 13/08/2007 AND RS. 10,00,000/ - WAS RECEIVED IN CASH BY SHRI MUKESH AGARWAL POWER OF ATTORNEY HOLDER OF THE LAND OWNED BY SMT UMAID W/O SHRI NAJIR KHAN. IV THAT THE SHARE OF INCOME FROM SALE OF SUCH LAND BELONGING T O THE ASSESSEE WAS NOT SHOWN IN THE RETURN OF INCOME FILED U/S 139. AFTER RECEIPT OF THE ASSESSMENT ORDER U/S 143(3)/ 144 AFTER THE ISSUANCE OF NOTICE U/S 148, THE ASSESSEE PAID THE INCOME TAX INCLUDING INTEREST ON HIS SHARE OF INCOME FROM THE SALE OF LAND . THE INCOME EARNED BY THE ASSESSEE ON THE LAND TAXABLE AS BUSINESS INCOME IS COMPUTED AS UNDER: PARTICULAR AMOUNT AMOUNT SALE CONSIDERATION OF LAND MEASURING 1 BIGHA AND 6 BISWA JOINTLY OWNED BY ASSESSEE & HIS MOTHER RS. 10,00,000/ - LESS: COST OF LAND PURCHASE COST RS. 3,00,000/ - REGISTRY EXPENSES ON PURCHASE RS. 55,400/ - RS. 3,55,400/ - TOTAL INCOME ON SALE OF LAND RS. 6,44,600/ - 50% SHARE OF THE ASSESSEE IN THE INCOME RS. 3,22,300/ - V THAT THE LD. AO WITHOUT CONSIDERING THE FACTUAL POSITION THAT THE ASSESSEE WAS NOT THE ABSOLUTE OWNER OF THE LAND MEASURING 2 BIGHA AND 12 BISWA AND ONLY 25% OF THE SALE CONSIDERATION RECEIVED WAS BELONGS TO THE ASSESSEE. 5 VI THAT THE HONBLE SUPREME COURT IN THE CASE OF STATE OF ORISSA V. MAHARAJA SHRI B.P. SINGH DEO [76 ITR 690 (SC)] HELD THAT: THE POWER TO LEVY ASSESSMENT ON THE BASIS OF BEST JUDGMENT IS NOT AN ARBITRARY POWER; IT IS AN ASSESSMENT ON THE BASIS OF BEST JUDGMENT. IN OTHER WORDS, THAT ASSESSMENT MUS T BE BASED ON SOME RELEVANT MATERIAL. IT IS NOT A POWER THAT CAN BE EXERCISED UNDER THE SWEET WILL AND PLEASURE OF THE CONCERNED AUTHORITIES. THE SCOPE OF THAT POWER HAS BEEN EXPLAINED OVER AND OVER AGAIN BY THIS COURT. VII THAT THE RELEVANT MATERIAL CLE ARLY SHOWS THAT ONLY 25% OF THE LAND SOLD BY REGISTERED DEED ON 13/08/2007 WAS BELONGING TO THE ASSESSEE AND THEREFORE INCOME EARNED BY THE ASSESSEE SHALL BE COMPUTED ACCORDINGLY AND ASSESSMENT OF WHOLE LAND NOT BELONGING THE ASSESSEE IS ERRONEOUS AND SHOW S THE ASSESSMENT WAS ARBITRARY AND LIABLE TO BE QUASHED. VII I THAT THE ASSESSEE HAD PURCHASED THE LAND WITH THE INTENTION TO RESALE THE SAME IN THE NEAR FUTURE ON PROFIT, THEREFORE THE PROFIT ON SALE OF LAND IS TAXABLE AS BUSINESS INCOME AND NOT AS CAPITAL GAIN AND THEREFORE THE LD. AO ERRED IN TAXING THE PROFIT ON SALE OF LAND AS CAPITAL GAIN. IX THAT SINCE THE PROFIT ON SALE OF LAND IS TAXABLE AS BUSINESS INCOME THE PROVISION OF SECTION 50C CANNOT BE INVOKED. BUT TO BRING THE CORRECT FACTUAL POSITION OF THE CASE IS SUBMITTED THAT THE VALUATION FOR THE PURPOSE OF STAMP DUTY TAKEN BY THE REGISTERING AUTHORITY FOR THE WHOLE LAND MEASURING 2 BIGH A AND 12 BISWA WAS RS. 27,30,000/ - AND THE VALUE TAKEN BY THE ASSESSING OFFICER FOR RS. 63,17,885/ - WAS ERRONEOUS. THE AMOUNT STATED IN THE GROUNDS OF APPEAL FOR RS. 43,17,885/ - WAS ALSO NOT CORRECT AND THE CORRECT VALUE ADOPTED BY THE REGISTERING AUTHORITY WAS RS. 27,30,000/ - AND TO THAT EXTENT THE GROUND MAY KINDLY BE TREATED AS AMENDED. 6 . THE SUBMISSIONS OF THE ASSESSEE WAS FORWARDED BY THE LD. CIT(A) TO THE ASSESSING OFFICER VIDE LETTER DATED 10/12/2012 AND THE ASSESSING OFFICER VIDE LETTER NO. 8 7 3 DATED 18/03/2013 HAS REPLIED AS UNDER: - 6 THE ASSESSEE HAS STATED THAT THE LAND IN QUESTION WAS S O LD BY THE ASSESSEE IN ASSOCIATION WITH OTHER CO - OWNERS AND HIS SHARE WAS ONLY 25% IN THE SAID LAND. WITH RESPONSE TO THE SUBMISSION, IT MAY BE STATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FURNISH ANY DETAILS AT ALL AND D ID NOT RAISE THE ISSUE THAT HE WAS ONLY A CO - OWNER AND THE ABSOLUTE OWNER OF THE SAID LAND. THE ASSESSEE HAS FURTHER STATED THAT OUT OF THE TOTAL SALE CONSIDERATION, HIS SHARE WAS ONLY RS. 5 LACS AND THE INCOME ARISING FROM THIS SALE HAS BEEN COMPUTED BY T HE ASSESSEE UNDER THE HEAD BUSINESS INCOME. WITH RESPECT TO THE SAME, IT MAY BE STATED THAT THE ASSESSEE HAS HIMSELF ADMITTED THAT HE DID NOT DECLARE ANY INCOME ARISING OUT OF THIS SALE IN HIS RETURN. FURTHER, THE COMPUTATION OF BUSINESS INCOME OF THIS SAL E HAS BEEN DONE ONLY AS AN AFTER THOUGH SIMPLY TO AVOID THE PROVISIONS OF SECTION 50C OF THE I.T.ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT SUBMIT ANY DETAILS WHATSOEVER REGARDING THE FACT THAT HE INTENDS TO OFFER THE INCOME ARI SING OUT OF THIS SALE AS BUSINESS INCOME. FURTHER, THE ASSESSEE DID NOT PROVIDE ANY EVIDENCE OR DETAILS REGARDING THE CALCULATION OF INCOME ARISING OUT OF THIS SALE AND PAYMENT OF TAXES ON THIS INCOME. MOREOVER, HE DID NOT DISCLOSE ANY INCOME WHATSOVER IN HIS RETURN ON ACCOUNT OF THIS SALE. LOOKING TO THE ABOVE FACTS AND THE UTMOST NON - COOPERATION OF THE ASSESSEE IT MAY BE STATED THAT THE CONTENTIONS OF THE ASSESSEE REGARDING BUSINESS INCOME OUT OF THE SAID SALE OF LAND IS ONLY AN AFTERTHOUGHT AND THE ASSE SSE E IS LIABLE TO PAY CAPITAL GAIN S ON IT. WITHOUT PREJUDICE TO THE ABOVE, IT MAY BE STATED THAT A SINGLE TRANSACTION CANNOT BE CALLED TO BE IN THE NATURE OF A BUSINESS. FURTHER, THE FACT THAT THE ASSESSEE DID NOT MAKE ANY SUBMISSION WHATSOEVER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THERE IS NOTHING ON RECORD TO PROVE THAT THE INTENTION OF THE ASSESSEE WAS TO CARRY OUT ANY BUSINESS TRANSACTION THUS IT MAY BE STATED THAT THE AO JUSTIFIABLY TREATED THE TRANSACTION OF SALE AS LEADING TO CAPITAL GAIN IN T HE HANDS OF THE ASSESSEE. IT WOULD BE PERTINENT TO MENTION HERE THAT THE ASSESSEE DID NOT PROVI D E ANY DETAILS REGARDING THE PURCHASE OR COST OF ACQUISITION OF THE SAID LAND. THEREFORE THE AO PASSED THE ORDER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD . AND THE SINGULAR TRANSACTION AVAILABLE ON RECORD CLEARLY INDICATES THAT THE ASSET WAS IN THE NATURE OF AN INVESTMENT AND THEREFORE THE SALE WOULD LEAD TO CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. THUS IT MAY ALSO BE STATED THAT THE COMPUTATION 7 OF B USINE SS INCOME IS ONLY AN AFTER TH O UGHT OF THE ASSESSEE AS NO SUCH ISSUE WAS RAISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSEL F. 7 . THE ASSESSING OFFICER FURTHER VIDE LETTER NO. 880 DATED 22/03/2013 HAS STATED TO THE LD. CIT(A) AS UNDER: - THAT THE LAND IN QUESTION WAS SOLD FOR RS. 27,30,000/ - AND THE ASSESSEE HAD 25% SHARE IN IT. IN CONNECTION WITH THE SAME, IT MAY BE STATED THAT IT HAS RECENTLY COME TO THE NOTICE THAT THE DLC VALUE OF THE SAID LAND WAS DETERMINED BY THE DIG STAMP AT RS. 63 ,17,885/ - VIDE HIS ORDER DATED 27.09.2010. A COPY OF THE LETTER OF THE DIG STAMP DATED 27.09.2010 IS ENCLOSED HEREWITH FOR YOU KIND PERUSA L ' 8 . THE LD. CIT(A) PROVIDED THE REPORT OF THE ASSESSING OFFICER TO THE ASSESSEE FOR REJOINDER AND THE ASSESSEE STATED AS UNDER: - THAT THE LD. AO ON THE MERIT OF THE ADDITION SUBMITTED THAT THE ASSESSEE DID NOT CO OPERATE IN THE ASSESSMENT PROCEEDING THE ADDITION IS TO BE SUSTAINED. THE ASSESSMENT PROCEEDING INITIATED BY ISSUING NOTICE U/S 143(2) IS ITSELF ILLEGAL AND NON FURNISHING ANY INFORMATION IN SUCH PROCEEDING CANNOT TREATED AS A RESTRICTION ON THE APPELLATE AUTHORITY TO CONSIDER THE SUBMISSION AND EVIDENCE PRODUCED DURING THE APPELLATE PROCEEDING. FURTHER IT IS ON RECORD THAT THE ASSESSEE SOLD THE PROPERTY UNDER CONSIDERATION ALONG WITH OTHER PERSONS AND OWN ONLY 1/4 . EVEN IN THE ASSESSMENT FRAMED U/S 144 THE ASSESSMENT SHOULD BE REASONABLE AND NOT ARBITRARY. THAT THE PROPERTY PURCHASED ALONG WITH THE MOTHER WAS SOLD WITHIN A SHORT PERIOD OF TIME CLEARLY D EMONSTRATE THAT THE TRANSACTION UNDER CONSIDERATION WAS NOT REALIZATION OF INVESTMENT BUT SALE OF PROPERTY PURCHASED TO SALE THE SAME ON HIGHER AMOUNT. IN LIGHT OF ABOVE SUBMISSION THE ASSESSMENT ORDER FRAMED U/S 144 FOR THE NON COMPLIANCE OF NOTICES ISSUE D IN THE ASSESSMENT PROCEEDING INITIATED BY ISSUANCE OF NOTICE U/S 143(2) MAY KINDLY BE QUASHED . 8 9 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT OF THE ASSESSING OFFICER , OBSERVED AS UNDER: - THE ASSESSEE HAS STATED THAT THE LAND IN QUESTION WAS S O LD BY THE ASSESSEE IN ASSOCIATION WITH OTHER CO - OWNERS AND HIS SHARE WAS ONLY 25% IN THE SAID LAND. WITH RESPONSE TO THE SUBMISSION, IT MAY BE STATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FURNISH ANY DETAILS AT ALL AND DID NOT RAISE THE ISSUE THAT HE WAS ONLY A CO - OWNER AND THE ABSOLUTE OWNER OF THE SAID LAND. THE ASSESSEE HAS FURTHER STATED THAT OUT OF THE TOTAL SALE CONSIDERATION, HIS SHARE WAS ONLY RS. 5 LACS AND THE INCOME ARIS ING FROM THIS SALE HAS BEEN COMPUTED BY THE ASSESSEE UNDER THE HEAD BUSINESS INCOME. WITH RESPECT TO THE SAME, IT MAY BE STATED THAT THE ASSESSEE HAS HIMSELF ADMITTED THAT HE DID NOT DECLARE ANY INCOME ARISING OUT OF THIS SALE IN HIS RETURN. FURTHER, THE C OMPUTATION OF BUSINESS INCOME OF THIS SALE HAS BEEN DONE ONLY AS AN AFTER THOUGH T SIMPLY TO AVOID THE PROVISIONS OF SECTION 50C OF THE I.T.ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT SUBMIT ANY DETAILS WHATSOEVER REGARDING THE FA CT THAT HE INTENDS TO OFFER THE INCOME ARISING OUT OF THIS SALE AS BUSINESS INCOME. FURTHER, THE ASSESSEE DID NOT PROVIDE ANY EVIDENCE OR DETAILS REGARDING THE CALCULATION OF INCOME ARISING OUT OF THIS SALE AND PAYMENT OF TAXES ON THIS INCOME. MOREOVER, HE DID NOT DISCLOSE ANY INCOME WHATSO E VER IN HIS RETURN ON ACCOUNT OF THIS SALE. LOOKING TO THE ABOVE FACTS AND THE UTMOST NON - COOPERATION OF THE ASSESSEE REGARDINGS, IT MAY BE STATED THAT THE CONTENTIONS OF THE ASSESSEE REGARDING BUSINESS INCOME OUT OF THE SAID SALE OF LAND IS ONLY AN AFTER THOUGHT AND THE ASSESSEE IS LIABLE TO PAY CAPITAL GAINTS ON IT. WITHOUT PREJUDICE TO THE ABOVE, IT MAY BE STATED THAT A SINGLE TRANSACTION CANNOT BE CALLED TO BE IN THE NATURE OF A BUSINESS. FURTHER, THE FACT THAT THE ASS ESSEE DID NOT MAKE ANY SUBMISSION WHATSOEVER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THERE IS NOTHING ON RECORD TO PROVE THAT THE INTENTION OF THE ASSESSEE WAS TO CARRY OUT ANY BUSINESS TRANSACTION THUS IT MAY BE STATED THAT THE AO JUSTIFIABLY TREATED THE TRANSACTION OF SALE AS LEADING TO CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. IT WOULD BE PERTINENT TO MENTION HERE THAT THE ASSESSEE DID NOT PROVID E ANY DETAILS REGARDING THE PURCHASE OR COST OF ACQUISITION OF THE SAID LAND. THEREFORE THE AO PASSED TH E ORDER ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. AND THE SINGULAR TRANSACTION AV A I LABLE ON RECORD CLEARLY 9 INDICATES THAT THE ASSET WAS IN THE NATURE OF AN INVESTMENT AND THEREFORE THE SALE WOULD LEAD TO CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. T HUS IT MAY ALSO BE STATED THAT THE COMPUTATION OF BUSINESS INCOME IS ONLY AN AFTE RTHOUGHT OF THE ASSESSEE AS NO SUCH ISSUE WAS RAISED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF.' 10 . THE LD. CIT(A) ALSO OBSERVED THAT THE ASSESSING OFFICER STATED THAT IT CAME TO HIS NOTICE THAT THE DLC VALUE OF THE SAID LAND WAS DETERMINED BY THE DIG STAMP AT RS. 63,17,885/ - VIDE HIS ORDER DATED 27/09/2010 , COPY OF THE SAID LETTER WAS FURNISHED TO THE L D. CIT(A) . THE LD. CIT(A) WAS OF THE VIEW THAT THE RECORD REVEALED THAT IT WAS A SI NGULAR TRANSACTION AND THE ASSET WAS IN THE NATURE OF INVESTMENT. THEREFORE, SALE WOULD LEAD TO BE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. HE, ACCORDINGLY SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL. 11 . LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE ALONG WITH HIS MOTHER SMT. JAYDA GAURI ON 26/08/2004 PURCHASED A PIECE OF LAND MEASURING 1 BIGHA AND 6 BISWA SITUATED AT KHASRA NO. 1105/740 AT JODHPUR FOR A CONSIDERATION OF RS. 3 LAC . THE LAND WAS PURCHASED WITH THE INTENTION TO RESALE THE SAME IN NEAR FUTURE WITH PROFIT. IT WAS FURTHER STATED THAT THE LAND SO PURCHASED ALONG WITH ADJOINING LAND MEASURING 1 10 BIGHA AND 6 BISWA OWNED BY SMT. UMAID W/O SHRI NAJIR KHAN TOTALING TO 2 BIGHA AND 12 BISWA WAS SOLD BY A CONSOLIDATED SALE DEED DATED 13/08/2007 AND TOTAL CONSIDERATION OF THE LAND MEASURING TO 2 BIGHA AND 12 BISWA WAS RS. 20 LAC, OUT OF WHICH RS. 5 LAC WAS RECEIVED B Y THE ASSESSEE VIDE CHEQUE NO. 976252 DATED 13/08/2007 AND RS. 5 LAC WAS RECEIVED BY CO - OWNER AND MOTHER OF THE ASSESSEE SMT. JAYDA GAURI BY CHEQUE NO. 976253 DATED 13/08/2007 AND RS. 10 LAC WAS RECEIVED IN CASH BY SHRI MUKESH AGARWAL POWER OF ATTORNEY HOLDER OF THE LAND OWNED BY SMT. UMAID W/O SHRI NAJIR KHAN . IT WAS CONTENDED THAT THE SHARE OF INCOME FROM SALE OF SUCH LAND BELONGED TO THE ASSESSEE WAS NOT SHOWN IN THE RETURN OF INCOME FILED U/S. 139 OF THE ACT , BUT THE ASSESSEE AFTER RECEIVING THE ASSESSMENT ORDER U/S. 143(3)/144 OF THE ACT PAID THE INCOME TAX INCLUDING INTEREST ON HIS SHARE OF INCOME FROM THE SALE OF LAND. IT WAS FURTHER STATED THAT THE INCOME EARNED BY THE ASSESSEE ON THE LAND WAS TAXABLE AS BUSINESS INCOME , B UT THE LD. CIT(A) WITHOUT APPRECIATING THE FACTUAL POSITION THAT THE ASSESSEE WAS NOT THE ABSOLUTE OWNER OF THE LAND MEASURING 2 BIGHA AND 12 BISWA AND ONLY 2 5% OF THE TOTAL SALE CONSIDERATION RECEIVED BELONGED TO THE ASSESSEE, UPHELD THE ENTIRE ADDITION WITHOUT ASSIGNING ANY REASONS FOR REJECTING THE SUBMISSIONS OF THE ASSESSEE. RELIANCE WAS PLACED ON THE JUDGMENT OF THE 11 HON'BLE SUPREME COURT IN THE CASE OF STATE OF ORISSA VS. MAHARAJA SHRI B.P. SINGH DEO REPORTED IN 76 ITR 690. OUR ATTENTION WAS DRAWN ALSO TOWARDS PAGE NOS. 20 TO 28 OF THE ASSESSEES PAPER BOOK AND IT WAS STATED THAT THERE WERE THREE SELLERS OF THE LAND I.E. THE ASSESSEE, HIS MOTHER HAVING 25% SHARE EACH AND SMT. UMAID THROUGH POWER OF ATTORNEY HOLDER S HRI MUKESH AGARWAL WAS HAVING 50% SHARE IN THE LAND . IT WAS FURTHER STATED TH A T THE ASSESSING OFFICER HAD ADMITTED THE SALE TRANSACTION AS BUSINESS INCOME AND 25% SHARE IN THE HANDS OF MOTHER OF THE ASSESSEE. THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION MADE IN THE HANDS OF THE ASSESSEE. IT WAS CONTENDED THAT THE LAND WAS PURCHASED WITH AN INTENTION OF TRADE AND WAS SOLD WITHIN TWO YEARS FROM ITS PURCHASE, SO IT WAS AN ADVENTURE IN TRADE AND NOT AN INVESTMENT. 12. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED TH A T IT WAS NOT A TRADE BECAUSE THE INTENTION OF THE ASSESSEE WAS ONLY TO EARN PROFIT ON THE INVESTMENT, SO THE INCOME EARNED WAS A LONG TERM CAPITAL GAIN AND WAS RIGHTLY ASSESSED IN THE HANDS OF THE ASSESSEE. 13 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT 12 CASE, IT IS NOTICED FROM THE SALE DEED PLACED AT PAGE NOS. 20 TO 28 OF TH E ASSESSEE S PAPER BOOK THAT THE LAND IN QUESTION WAS SOLD BY THREE PERSONS AND THE ASSESSEE CLAIMED THAT HE WAS HAVING ONLY 25% SHARE IN THE LAND SOLD, HOWEVER, THE ASSESSING OFFICER CONSIDERED THE ASSESSEE AS THE SOLE OWNER OF THE SAID LAND . IN THE PRESENT CASE, FRO M THE PURCHASE DEED, ( COPY OF WHICH IS PLACED AT PAGE NOS. 12 TO 17 OF THE ASSESSEES PAPER BOOK ) I T IS EVIDENT THAT THE LAND MEASURING 1 BIGHA 6 BISWA WAS PURCHASED BY THE ASSESSEE ALONG WITH HIS MOTHER FOR A SUM OF RS. 3 LAC . S O , IT CANNOT BE SAID THAT THE ASSESSEE WAS THE ONLY SOLE OWNER OF THE SAID LAND. IN THE PRESENT CASE, IT IS ALSO NOTICED THAT THE LD. CIT(A) POINTED OUT THAT THE DLC RATE DETERMINED FOR THE SAID LAND WAS AT RS. 63,17,885/ - WHICH HAS BEEN ADDED IN THE HANDS OF THE ASSESSEE BUT WITHOUT GIVING ANY BENEFIT OF THE COST INCURRED FOR THE PURCHASE OF THE SAID LAND. THE ASSESSEE DURING THE COURSE OF HEARING, FURNISHED COPY OF THE ASSESSMENT ORDER OF SMT. SMT. JAYDA GAURI MOTHER OF THE AS SESSEE WHEREIN VIDE ORDER DATED 05/02/2014, THE SHORT TERM CAPITAL GAIN FROM THE SAME LAND HAS BEEN WORKED OUT AT RS. 14,06,271/ - . THEREFORE, IT IS NOT CLEAR THAT WHY THE DEPARTMENT HAS TAKEN A CONTRADICTORY STAND IN THE CASE OF THE ASSESSEE VIS - - VIS HIS MOTHER. IN OUR OPINION, NEITHER LD. CIT(A) NOR ASSESSING OFFICER HAS APPRECIATED THE FACTS OF THE PRESENT CASE IN RIGHT 13 PERSPECTIVE . WE, THEREFORE, ARE OF THE VIEW THAT THIS CASE REQUIRES FRESH ADJUDICATION . ACCORDINGLY, THE IMPUGNED ORDER IS SET AS IDE AND THE MATTER IS SENT BACK TO THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 14 VIDE GROUND NO. 5, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE CHARGING OF INTEREST U/S. 234A, 2324B & 234C OF THE ACT . AS REGARDS TO THIS ISSUE, IT WAS COMMON CONTENTION OF BOTH THE PARTIES THAT IT IS CONSEQUENTIAL IN NATURE. WE ORDER ACCORDINGLY. 1 5 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ( ORDER PRONOUNCED IN THE COURT ON 23 RD SEPTEMBER , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD SEPTEMBER , 201 4 . VR/ - COPY TO: 14 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .