Shri Jitendra Panraj Sonigara, Pune V. Asst.. CIT, Circle-9, Pune

ITA 849/PUN/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8489 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS S PRAVEENA
• Keywords: Capital asset; Business income; Capital receipt
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.849/PN/2012 (ASSESSMENT YEAR : 2008-09) SHRI JITENDRA PANRAJ SONIGARA, PROP. OF M/S SHREE SONIGARA DEVELOPERS, 1308, LAXMI APARTMENT, STATION ROAD, CHINCHWAD, PUNE 411 033. PAN : ACNPS6851J . APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE- 9, PUNE. . RESPONDENT ASSESSEE BY : MR. SUNIL GANOO DEPARTMENT BY : MRS. S. PRAVEENA DATE OF HEARING : 25-07-2014 DATE OF PRONOUNCEMENT : 15-09-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AG AINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DA TED 12.03.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 27.12.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS OF APPEAL :- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.[A] HAS ERRED IN HOLDING THAT THE PROFITS OF RS.1,99,02,720.00 EARNED BY THE APPELLANT DURING THE RELEVANT PREVIOU S YEAR ON SALE OF AGRICULTURE LANDS CONSTITUTE TAXABLE BUSINESS INCOM E OF THE APPELLANT. IT MAY PLEASE BE HELD THAT THE SAID SURPLUS C ONSTITUTE LONG TERM CAPITAL GAINS EXEMPT FROM TAX AS CLAIMED BY THE APP ELLANT. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE FINDING OF THE LEARNED C.I.T.[A] THAT THE PROFITS OF RS.1,99,0 2,720.00 EARNED BY THE APPELLANT DURING THE RELEVANT PREVIOUS YEAR ON SALE OF AGRICULTURE LANDS CONSTITUTE TAXABLE BUSINESS INCOME OF THE APP ELLANT BEING ARBITRARY, PERVERSE AND BASED ON SURMISES AND CONJE CTURES THE SAME MAY PLEASE BE VACATED. THE VARIOUS REASONS GIVEN BY THE LEARNED C.I.T.[A] IN SUPPORT OF HIS SAID CONCLUSION BEING D EVOID OF MERITS AND ITA NO.849/PN/2012 A. Y. : 2008-09 LEGALLY UNSUSTAINABLE THE SAME MAY PLEASE BE VACATE D AND THE FINDINGS OF THE LEARNED C.I.T.[A] MAY PLEASE BE VACATED. 3. THE APPELLANT DENIES HIS LIABILITY TO PAY ANY IN TEREST U/S 234 B AND 234 C OF THE I.T.ACT 1961 AND HENCE THE SAME MAY PL EASE BE DELETED. 3. BRIEFLY PUT, THE CONTROVERSY IS WITH REGARD TO T HE TAXABILITY OF RS.1,99,02,720/- REPRESENTING SURPLUS EARNED ON SAL E OF AGRICULTURAL LANDS. THE CONTENTION OF THE ASSESSEE IS THAT THE SURPLUS IS A CAPITAL RECEIPT EXEMPT FROM TAX AS THE AGRICULTURAL LANDS IN QUESTION DO N OT FALL WITHIN THE MEANING OF EXPRESSION CAPITAL ASSET IN TERMS OF SECTION 2(14 )(III) OF THE ACT. ON THE CONTRARY, THE ASSESSING OFFICER AS WELL AS THE CIT( A) HAVE REPELLED THE AFORESAID STAND OF THE ASSESSEE ON THE GROUND THAT THE TRANSACTIONS OF PURCHASE AND SALE OF AGRICULTURAL LANDS IN QUESTION UNDERTAKEN BY THE ASSESSEE REPRESENT A TRADING ACTIVITY AND THUS THE SURPLUS IS LIABLE TO BE TAXED AS BUSINESS INCOME. 4. BEFORE PROCEEDING TO EVALUATE THE RIVAL STANDS, IT WOULD BE APPROPRIATE TO ENUMERATE THE TRANSACTIONS WHICH ARE THE SUBJECT -MATTER OF CONTROVERSY. THE ASSESSEE HAS UNDERTAKEN PURCHASE OF AGRICULTURA L LAND AT VILLAGE PUSANE, (DISTRICT PUNE) ON VARIOUS OCCASIONS BETWEEN 02.12. 2002 AND 06.07.2006 WHEREAS THE TOTAL LAND SO PURCHASED, ADMEASURING AP PROXIMATELY 18 ACRES, WAS SOLD DURING THE YEAR UNDER CONSIDERATION ON THR EE DATES, NAMELY, 13.09.2007, 04.12.2007 AND 11.12.2007. FURTHER, TH E ENTIRE LAND HAS BEEN SOLD TO ONE SHRI N.V. ACHUTDAS, A REAL ESTATE DEVEL OPER. THE DETAILS OF PURCHASE AND SALE OF UNDERTAKEN BY THE ASSESSEE IS TABULATED HEREINAFTER :- SR.NO. GUT NO. DATE OF PURCHASE TOTAL CONSIDERATION DATE OF SALE SALE CONSIDERATION 1 GUT NO.572 17/03/2005 38,845 04/12/2007 1,781,250 2 GUT NO.597 21/10/2004 38,420 04/12/2007 718,750 3 GUT NO.579 16/08/2004 22,110 04/12/2007 750,000 4 GUT NO.610 10/01/2006 158,540 11/12/2007 3,781,25 0 5 GUT NO.576 21/08/2004 22,340 13/09/2007 6 GUT NO.613 30/07/2004 40,585 13/09/2007 7 GUT NO.614 23/08/2004 28,830 13/09/2007 5,978,125 8 GUT NO.606 06/07/2006 46,870 13/09/2007 9 GUT NO.615 21/08/2004 24,890 13/09/2007 3,312,500 10 GUT NO.611 09/08/2004 14,110 04/12/2007 1,281,25 0 11 GUT NO.617 02/12/2002 61,740 13/09/2007 2,796,87 5 1/2 SHARE 497,280 20,400,000 ITA NO.849/PN/2012 A. Y. : 2008-09 5. THE SURPLUS ON SALE I.E. RS.1,99,02,720/- (I.E. RS.20,400,000/- MINUS RS.4,97,280/-) WAS CLAIMED AS EXEMPT FROM TAX ON TH E GROUND THAT THE AGRICULTURAL LAND IN QUESTION WAS OUTSIDE THE DEFIN ITION OF CAPITAL ASSET IN TERMS OF SECTION 2(14)(III) OF THE ACT. IT WAS ASS ERTED THAT THE SAID AGRICULTURAL LAND WAS LOCATED BEYOND 8 KILOMETERS FROM THE LOCAL LIMITS OF THE MUNICIPALITY AND THE POPULATION OF PUSANE VILLAGE WAS LESS THAN TEN THOUSAND. THE ASSESSING OFFICER DID NOT DISPUTE THE AFORESAID FEA TURES OF THE LAND IN QUESTION, BUT HE PROCEEDED TO TREAT THE TRANSACTION S AS AN ACTIVITY OF TRADING IN AGRICULTURAL LANDS UNDERTAKEN BY THE ASSESSEE, AND THEREFORE HE ULTIMATELY TAXED THE SURPLUS AS BUSINESS INCOME. THE ASSESSIN G OFFICER NOTED THAT ASSESSEE IS A BUILDER AND DEVELOPER AND WAS ENGAGED IN THE BUSINESS OF BUILDING CONSTRUCTION AND SALE/PURCHASE OF PLOTS. IN PARA 3.1 OF THE ASSESSMENT ORDER, ASSESSING OFFICER HAS ENUMERATED THE PROFIT EARNED BY THE ASSESSEE OUT OF LAND TRADING I.E. SALE AND PURCHASE OF PLOTS IN VARIOUS ASSESSMENT YEARS, I.E. 2007-08 TO 2010-11, INCLUDIN G FOR THE YEAR UNDER CONSIDERATION. CONSIDERING THAT THE ASSESSEE WAS R EGULARLY ENGAGED IN THE BUSINESS OF SALE AND PURCHASE OF PLOTS, ASSESSING O FFICER PROCEEDED TO HOLD THAT THE IMPUGNED TRANSACTIONS BY WAY OF PURCHASE A ND SALE OF AGRICULTURAL LANDS WAS ALSO UNDERTAKEN BY THE ASSESSEE AS BUSINE SS TRANSACTIONS. THE CIT(A) HAS ALSO AFFIRMED THE STAND OF THE ASSESSING OFFICER AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THE CIT(A ) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BY REACHING TO THE FOLLOWING C ONCLUSIONS : (I) THAT ASSESSEE WAS A BUILDER AND DEVELOPER AND HE HAD SHO WN PROFIT FROM LAND DEVELOPMENT ACTIVITY IN THE PAST AS WELL AS IN THE FUTURE ASSESSMENT YEARS, INCLUDING THE CURRENT ASSESSMENT YEAR; (II) THAT AS SESSEE ACQUIRED THE LANDS PIECEMEAL WHICH WERE ADJACENT TO EACH OTHER FOR THE PURPOSES OF CONSOLIDATION AND FUTURE SALE TO EARN HIGHER PROFITS; (III) THAT ASSESSEE WAS NOT AN AGRICULTURIST HAVING REGARD TO THE MATERIAL ON RECO RD; AND, (IV) THAT THE MOTIVE IN THE SERIES OF LAND TRANSACTIONS CARRIED OUT WAS NOT TO UNDERTAKE CULTIVATION OF ITA NO.849/PN/2012 A. Y. : 2008-09 LAND FOR AGRICULTURAL PURPOSES BUT TO EARN VERY HIG H PROFITS AFTER SELLING THE SAME. 6. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LOWER AUTHORITIES HAVE DECIDED THE ISSUE AGAINST TH E ASSESSEE ON SURMISES AND CONJECTURES AND AFTER DISREGARDING THE PLEAS PU T-FORTH BY THE ASSESSEE. AT THE TIME OF HEARING, REFERENCE HAS BEEN INVITED TO THE DETAILED WRITTEN SUBMISSIONS MADE BEFORE THE CIT(A), WHICH HAVE BEEN EXTRACTED IN THE IMPUGNED ORDER, IN ORDER TO SUPPORT THE CASE OF THE ASSESSEE. IT HAS BEEN POINTED OUT THAT THE MAIN BUSINESS ACTIVITY OF THE ASSESSEE IS IN THE FIELD OF PROMOTERS AND BUILDERS IN WHICH HE UNDERTAKES CONST RUCTION OF FLATS/SHOPS AND SELLING THEREAFTER. IT HAS BEEN POINTED OUT THAT A SSESSEE DID NOT UNDERTAKE THE BUSINESS OF LAND DEVELOPMENT AND NEVER DID THE BUSI NESS OF PLOTTING AND THEREFORE THE ASSESSEE IS NOT IN THE BUSINESS OF DE VELOPMENT OF PLOTS. ON THIS BASIS, IT IS SOUGHT TO BE CONTENDED THAT THE LOWER AUTHORITIES HAVE MISDIRECTED THEMSELVES IN APPRECIATING THE BUSINESS OF THE ASSE SSEE. SECONDLY, IT HAS BEEN POINTED OUT THAT LAND IN QUESTION WAS AN AGRIC ULTURAL LAND AND IT FALLS IN THE NO-DEVELOPMENT ZONE AS PER THE NOTIFICATION OF THE GOVERNMENT OF MAHARASHTRA AND THEREFORE THE SAID LAND IS EXCLUSIV ELY RESERVED FOR AGRICULTURAL USE ONLY. IT IS SUBMITTED THAT THE ENTIRE LAND WAS HELD BY THE ASSESSEE IN HIS PERSONAL NAME AND NOT IN THE NAME OF HIS PROPRIETOR Y BUSINESS CONCERN. IT HAS ALSO BEEN POINTED OUT THAT THE 7/12 EXTRACTS OF THE LAND REVENUE RECORDS SHOW UNDERTAKING OF AGRICULTURAL ACTIVITY. IT IS ALSO P OINTED OUT THAT DURING THE PERIOD OF HOLDING OF LAND BY THE ASSESSEE IT HAS NOT BEEN PUT TO ANY NON-AGRICULTURAL USE. ON THESE FACTS, IT IS SOUGHT TO BE POINTED OU T THAT THE ASSESSEE PURCHASED THE IMPUGNED LANDS FOR THE PURPOSE OF INV ESTMENT AND THE SAME BEING AGRICULTURAL LANDS, THE SURPLUS ON ITS SALE I S LIABLE TO BE TREATED AS SALE OF INVESTMENT AND NOT SALE OF ANY STOCK-IN-TRADE SO AS TO BE ASSESSED AS BUSINESS INCOME. ITA NO.849/PN/2012 A. Y. : 2008-09 7. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE APPEARING FOR THE REVENUE HAS DEFENDED THE ORDERS OF THE AUTH ORITIES BELOW BY PLACING RELIANCE THEREON. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. UNDISPUTEDLY, THERE IS A PLETHORA OF JUDICIAL RULINGS ON THE ISSU E AS TO WHETHER A PARTICULAR TRANSACTION INVOLVES SALE OF INVESTMENT TO BE TAXED AS UNDER THE HEAD CAPITAL GAINS OR SALE OF STOCK-IN-TRADE SO AS TO BE TAXED UNDER THE HEAD BUSINESS INCOME. SO HOWEVER, ITS A TRITE LAW THAT WHETHER A PARTICULAR TRANSACTION IS TO BE UNDERSTOOD AS SALE OF INVESTMENT OR A TRADING AC TIVITY IS LIABLE TO BE DECIDED HAVING REGARD TO THE RELEVANT FACTS AND CIRCUMSTANC ES OF THE PARTICULAR CASE. IN THE PRESENT CASE, WHAT IS SOUGHT TO BE MADE OUT BY THE REVENUE IS THAT THOUGH THE SURPLUS IN QUESTION IS ARISING OUT SALE OF AGRICULTURAL LANDS BUT THE SAME IS LIABLE TO BE ASSESSED AS BUSINESS INCOME BECAUSE ASSESSEE HAS UNDERTAKEN A SERIES OF TRANSACTIONS IN A SYSTEMATIC WAY WHICH HAVE GENERATED PROFITS AND SUCH ACTIVITY BEING IN THE LINE OF THE EXISTING BUSINESS OF THE ASSESSEE; THEREFORE, IT IS LIABLE TO BE TREATED AS A BUSINESS ACTIVITY. 9. FIRSTLY, THE PLEA OF THE ASSESSEE THAT HE IS NOT IN THE BUSINESS OF LAND DEVELOPING OR THE BUSINESS OF PLOTTING AND SELLING THEREOF. THE SAID PLEA, IN OUR VIEW, IS QUITE IRRELEVANT. IN ANY CASE, THE AS SESSING OFFICER HAS FACTUALLY BROUGHT OUT THAT DURING THE PRECEDING AS WELL AS CU RRENT AND SUBSEQUENT ASSESSMENT YEARS, ASSESSEE HAS DECLARED INCOME FROM LAND TRADING I.E. OUT OF SALE AND PURCHASE OF LANDS. THERE IS NO NEGATION T O THE AFORESAID FACTUAL PREMISE OF THE ASSESSING OFFICER DETAILED IN PARA 3 .1 OF THE ASSESSMENT ORDER. THEREFORE, THE LOWER AUTHORITIES ARE FACTUALLY JUST IFIED IN ESTABLISHING THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF SALE AND PUR CHASE OF LANDS. 10. SECONDLY, THE PLEA OF THE ASSESSEE IS THAT THE 7/12 EXTRACTS OF THE LAND SHOW CONDUCT OF AGRICULTURAL ACTIVITY AND THAT THE ASSESSEE HAD INDEED ITA NO.849/PN/2012 A. Y. : 2008-09 UNDERTAKEN AGRICULTURAL ACTIVITY ON THE LAND DURING HIS PERIOD OF HOLDING. IN THIS CONTEXT, ASSESSEE ALSO PRODUCED BEFORE THE ASSESSIN G OFFICER ZEROX COPIES OF FEW SALE PATTIES CLAIMING SALE OF AGRICULTURAL PROD UCE/CROPS. THE ASSESSING OFFICER NOTED THAT ASSESSEE FURNISHED A SALE BILL I SSUED BY ONE M/S KAMTHE & CO. DATED 13.08.2010 IN TERMS OF WHICH ASSESSEE CAN VASSED OF HAVING SOLD GROUNDNUTS TO THE SAID CONCERN. THE ASSESSING OFFI CER CARRIED OUT A VERIFICATION EXERCISE AND RECORDED STATEMENT OF ONE SHRI PHOOLCHAND ALIAS NAVNATH EKNATH KAMTHE, WHO IS THE PROPRIETOR OF M/S KAMTHE & CO.. THE STATEMENT OF THE SAID PERSON IS FORMING PART OF THE ASSESSMENT ORDER AS ANNEXURE- C. THE DEPOSITION MADE BY THE PROPRIETOR OF M/S KAMTHE & CO. CLEARLY ESTABLISHES BOGUS NATURE OF CLAIM MADE BY T HE ASSESSEE BASED ON THE SALE BILL PURPORTED TO BE ISSUE BY M/S KAMTHE & CO. . THERE IS NO MATERIAL LEAD BY THE ASSESSEE EITHER BEFORE THE LOWER AUTHORITIES OR BEFORE US TO DISPUTE THE AFORESAID INFERENCE DRAWN BY THE ASSESSING OFFICER. THEREFORE, FACTUM OF THE ASSESSEE HAVING UNDERTAKEN AN AGRICULTURAL ACTIVITY HAS BEEN FOUND TO BE FACTUALLY ERRONEOUS BY THE LOWER AUTHORITIES. REMA INING ON THIS ASPECT, WE FIND THAT THE CIT(A) NOTED THAT ASSESSEE HAD CREDITED AN AMOUNT OF RS.319/- ON ACCOUNT OF AGRICULTURAL INCOME FROM SUCH LAND, WHIC H IS APPROXIMATELY 18 ACRES. THE CIT(A) HAS FOUND IT NOT ONLY TO BE INSU FFICIENT BUT ALSO UNTENABLE, HAVING REGARD TO THE VERIFICATION EXERCISE CARRIED OUT BY THE ASSESSING OFFICER BY RECORDING THE STATEMENT OF THE PROPRIETOR OF M/S KAMTHE & CO.. FOR ALL THE ABOVE REASONS, WE ARE IN AGREEMENT WITH THE INFEREN CE DRAWN BY THE LOWER AUTHORITIES THAT ASSESSEE HAS FAILED TO SUBSTANTIAT E THAT ANY AGRICULTURAL ACTIVITY WAS GENUINELY CARRIED OUT ON THE SAID LAND DURING T HE PERIOD IT HAS BEEN HELD BY THE ASSESSEE. BE THAT AS IT MAY, THE AFORESAID CIRCUMSTANCES ARE ENOUGH TO DEDUCE THAT THE MOTIVE OF THE ASSESSEE TO ACQUIR E THE LAND IN QUESTION WAS NOT TO UNDERTAKE CULTIVATION OR ANY OTHER AGRICULTU RAL OPERATIONS ON THE SAID LAND. THE AFORESAID INFERENCE GETS STRENGTHENED BY THE FACT THAT OTHER THAN THE LANDS IN QUESTION, THERE IS NO MATERIAL TO SHOW THAT THE ASSESSEE WAS ITA NO.849/PN/2012 A. Y. : 2008-09 HOLDING AGRICULTURAL LANDS IN PAST FOR THE PURPOSE OF UNDERTAKING AGRICULTURAL ACTIVITIES. 11. IN VIEW OF THE AFORESAID DISCUSSION, WE ARE UNA BLE TO ACCEPT THE PLEA OF THE ASSESSEE THAT THE INTENTION OF THE ASSESSEE TO PURCHASE THE IMPUGNED AGRICULTURAL LANDS WAS TO UNDERTAKE AGRICULTURAL OP ERATIONS. ON THE CONTRARY, THE MANNER IN WHICH ASSESSEE HAS UNDERTAKEN ACQUISI TION OF LANDS, WHICH ARE ADJACENT TO EACH OTHER, BY WAY OF MULTIPLE ACQUISIT IONS AND THEREAFTER SOLD THE SAME ON PROXIMATE DATES TO THE BUYER, WHO IS ALSO A LAND DEVELOPER, TANTAMOUNTS TO UNDERTAKING A TRADING ACTIVITY AND T HEREFORE SURPLUS ON SUCH SALE IS LIABLE TO BE TAXED AS A BUSINESS INCOME. 12. THE FACTUM OF THE ASSESSEE HAVING BOUGHT AND SO LD AN AGRICULTURAL LAND WHICH DOES NOT FALL WITHIN THE DEFINITION OF CAPIT AL ASSETS IN TERMS OF SECTION 2(14)(III) OF THE ACT DOES NOT MITIGATE THE TAXABIL ITY OF THE SURPLUS ARISING ON ITS SALE AS BUSINESS INCOME BECAUSE THE FACTS AND CIRCU MSTANCES OF THE CASE SHOW THAT ASSESSEE HAS INDEED UNDERTAKEN TRADING OF AGRICULTURAL LANDS. THE ACTIVITY OF TRADING IN AGRICULTURAL LANDS AS STOCK- IN-TRADE DEFINITELY IS ASSESSABLE AS BUSINESS INCOME. 13. IN VIEW OF THE AFORESAID DISCUSSION, WE THEREFO RE AFFIRM THE ORDERS OF THE LOWER AUTHORITIES AND THE ASSESSEE HAS TO FAIL IN I TS APPEAL. 14. BEFORE PARTING, WE MAY ALSO REFER TO OUR DECISI ON IN THE CASE OF SHRI KRISHNAKUMAR K. GOYAL VIDE ITA NO.1299/PN/2012 & OT HER OF EVEN DATE WHEREIN ALSO SOMEWHAT SIMILAR ISSUE WAS BEFORE US. IN THE SAID CASES ALSO ASSESSEE HAD EARNED A SURPLUS ON A SALE OF AGRICULT URAL LANDS. IN THOSE CASES, WE HAVE INFERRED, HAVING REGARD TO THEIR FACTS AND CIRCUMSTANCES, THAT THE SURPLUS COULD NOT BE TREATED AS BUSINESS INCOME. I N THOSE CASES, ASSESSEE HAD A HISTORY OF HOLDING AGRICULTURAL LANDS (APART FROM THE LANDS SOLD) AND SUCH ITA NO.849/PN/2012 A. Y. : 2008-09 LANDS WERE BEING HELD FOR A SUBSTANTIAL PERIOD OF T IME. IT ALSO STOOD ESTABLISHED THAT ASSESSEES WERE UNDERTAKING AGRICUL TURAL ACTIVITY IN THE PAST ON THE OTHER AGRICULTURAL LANDS HELD BY THEM. SUCH LI KE FEATURES ARE COMPLETELY MISSING IN THE PRESENT CASE INASMUCH AS THERE IS NO MATERIAL TO SHOW THAT EITHER IN THE PAST OR IN THE SUBSEQUENT YEARS ASSES SEE HAS ENGAGED HIMSELF IN ANY AGRICULTURAL ACTIVITY. RATHER, THE CLAIM OF TH E ASSESSEE OF HAVING UNDERTAKEN AGRICULTURAL ACTIVITY ON THE IMPUGNED LA ND HAS ALSO BEEN FOUND TO BE FACTUALLY INCORRECT. 15. BE THAT AS IT MAY, HAVING REGARD TO THE FACTS A ND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE INCLINED TO UPHOLD THE ORDERS OF THE AUTHORITIES BELOW TREATING THE SURPLUS ON SALE OF LAND AT VILLAGE PUS ANE AMOUNTING TO RS.1,99,02,720/- AS A BUSINESS INCOME. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH SEPTEMBER, 2014. SD/- SD /- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 15 TH SEPTEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE