2014 (3) TMI 501 - AT - Income Tax

Estimation of profits on sale of plots Held that - It cannot be said that opportunity was not given to the Assessing Officer to verify the facts - all documents were all also produced before the CIT in course of revision proceedings - CIT was of the view that the assessee is the owner of 25% of the plotted land, hence profit to the extent of 25% from the sale consideration received for the assessment year is taxable at the hands of the assessee - From the computation of income filed along with return for the assessment year, it can be seen that the assessee himself had shown short term capital gains thus, the sale consideration considered by the Assessing Officer at the hands of the assessee also includes the amount admitted by the assessee in the return of income thus, profit to that extent has to be considered at the hands of the assessee for the assessment year - Whereas the CIT (A) has deleted the entire sale consideration which also includes the amount declared by the assessee in the return of income thus, the AO is directed to retain the income offered by the assessee from sale of plots in the return filed for the assessment year and to delete the rest of the addition Decided partly in favour of Assessee.

Issues Involved:
1. Delay in filing the appeal.
2. Deletion of addition made by the Assessing Officer (AO) on estimating the profit on sale of plots.
3. Determination of the assessee's share in the plotted land.
4. Calculation of the total sale consideration and the assessment year in which it was received.
5. Verification of documents and remand report.

Issue-wise Detailed Analysis:

1. Delay in Filing the Appeal:
The department's appeal was delayed by eleven days. The tribunal considered the submission of the learned Departmental Representative (DR) and found a reasonable cause for the delay. Consequently, the delay was condoned, and the appeal was admitted for hearing on merits.

2. Deletion of Addition Made by the Assessing Officer:
The primary issue in the appeal was the deletion of an addition of Rs.1,48,47,787/- made by the AO, who had estimated the profit on the sale of plots. The AO had determined the assessee's share in the sale proceeds at 69.06% based on his share of land, contrary to the assessee's claim of a 25% share. The Commissioner of Income Tax (Appeals) [CIT (A)] deleted the addition, concluding that the assessee's share in the plotted land was only 25%.

3. Determination of the Assessee's Share in the Plotted Land:
The assessee, a Hindu Undivided Family (HUF), filed its return of income declaring a short-term capital gain. The AO noted that the assessee, along with three others, carried out a real estate business by contributing their lands. The AO miscalculated the assessee's share in the total sale proceeds as 69.06% instead of 25%. The CIT (A) found that the assessee's share in the land, as per the KUDA layout, was only 25%, and the AO's calculation was based on incorrect figures.

4. Calculation of the Total Sale Consideration and the Assessment Year in Which It Was Received:
The AO computed the income by applying a rate of Rs.430 per sq. yard to the plotted land, arriving at a total sale consideration of Rs.2,14,99,837/-. He then determined the assessee's share at 69.06%, resulting in Rs.1,48,47,787/-. However, the CIT (A) concluded that the AO wrongly assumed that the entire sale consideration was received in a single year. The CIT (A) provided a detailed breakdown of sales across different assessment years, verifying that the total sale consideration was received over multiple years.

5. Verification of Documents and Remand Report:
The assessee submitted various documents, including sale deeds and encumbrance certificates, to support their claim of a 25% share. The CIT (A) had called for a remand report from the AO during the appeal proceedings against the original assessment order. The AO had the opportunity to verify the documents, which included the KUDA approval and the sale deeds. The tribunal found that the CIT (A)'s decision was based on verified facts and documents, and the AO's findings were not supported by the evidence on record.

Conclusion:
The tribunal concluded that the assessee's share in the plotted land was indeed 25%, and the AO's estimation of 69.06% was incorrect. The tribunal modified the CIT (A)'s order, directing the AO to retain the income offered by the assessee in the return filed for the impugned assessment year and delete the rest of the addition. The appeal was allowed in part, and the order was pronounced on 12-03-2014.

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