2011 (7) TMI 958 - AT - Income Tax

Unexplained investment - AO noticed that there were cash deposits amounting to 15, 51, 543 in the savings bank account maintained by the assessee. Since the assessee was unable to explain the source of such cash deposit in his savings bank account the AO treated the entire cash deposit as unexplained investment by the assessee - assessee sold the said land in the representative capacity of Dargah Peer Bahuddin Bhandari Shah and the amount deposited in the bank belonged to the Dargah - In the present case the land was acquired by the assessee s ancestor free of cost as Inami land as Choli Bangdi for maintenance and services of Dargah Peer Bahuddin Bhandari Shah - Held that in case of Inami land as Choli Bangdi there being no cost of acquisition the question of capital gain does not arise - Appeal is dismissed

Summary

Issues:
1. Taxability of capital gain on sale of Dargah land.
2. Treatment of cash deposits in savings bank account as income.

Issue 1: Taxability of Capital Gain on Sale of Dargah Land:
The appeal by the Revenue challenged the CIT(A)'s decision regarding the taxability of capital gain arising from the sale of Dargah land. The Revenue contended that the land was awarded to the assessee and, therefore, capital gain should be recognized. The AO observed cash deposits in the assessee's bank account, treating them as unexplained investments. The CIT(A) deleted this addition, leading to the Revenue's appeal. The assessee argued that the land was received as "Inami" land and no capital gain should apply. The AO assessed the entire sale value for capital gain tax purposes, despite the actual amount received by the assessee being lower. However, the Tribunal found that as the land was acquired by the assessee's ancestors free of cost for Dargah maintenance, no capital gain liability existed. Referring to the Supreme Court's decision in CIT v. B.C. Srinivasa Setty, it was established that capital gain tax applies only to assets with an element of cost, which was absent in this case due to the land's historical acquisition. Therefore, the Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

Issue 2: Treatment of Cash Deposits in Savings Bank Account:
The AO noticed significant cash deposits in the assessee's savings bank account, which the assessee explained as proceeds from the sale of Dargah land. The CIT(A) accepted this explanation and deleted the addition made by the AO. The Revenue challenged this deletion, arguing that the entire cash deposit should be treated as income. However, the Tribunal found in favor of the assessee, emphasizing that the deposits were from the sale of Dargah land and not unexplained income. As the source of the cash deposits was established and linked to the land sale, the Tribunal upheld the CIT(A)'s decision to delete the addition of the cash deposits. Consequently, the Revenue's appeal on this issue was dismissed.

In conclusion, the Tribunal ruled in favor of the assessee on both issues, determining that the sale of Dargah land did not attract capital gain tax due to its historical acquisition without any cost involved. Additionally, the cash deposits in the savings bank account were deemed to be proceeds from the land sale and not unexplained income, leading to the dismissal of the Revenue's appeal.