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2016 (5) TMI 534 - AT - Income TaxUnexplained investment - assessment in the hands of AOP - purchase of the property - shares of individual co-purchasers of AOP - Held that - The land was acquired by 16 members of the family who combined together for a common purpose and common action in their own volition with a view to commercially exploit the land acquired by resale thereof at profits. It is evident that soon after purchase deed was registered, the same was handed over to the builder for development and prior thereto also the members of Khatib family were negotiating various builders for the disposal of the land. Therefore, intention of acquisition of land was to sale the same with a clear motive to make business profit. In these circumstances, the conclusion of the CIT(A) that the members of Khatib family who came together to acquire the land with intention to make profit by sale thereof as a business deal is required to be taxed in the hands of the joint owners as an AOP can not be faulted. We thus find no infirmity in the action of the CIT(A) in upholding the action of the AO exerting jurisdiction over assessee in the status of AOP. Therefore, acquisition of land and sale thereof subsequently has been rightly assessed in the hands of the AOP. Therefore, the objection of the assessee in this regard fails. We also find that the claim of the assessee that AOP family members owned the land and received the benefit/income since 1985-86 is in contradiction to the information recorded in 7/12 extracts as reproduced in para 19 of the CIT(A) order. The 7/12 extracts demonstrates that the members of the AOP were in possession of land from 1994-95 and also a part of land remain vacant and office were constructed on it. It is also clear that they were no fruit garden at though on a part of land, some seasonal crop have grown up. The situs of the land is within the municipal limits of Nasik and an urban land at the time of its sale. Therefore, it is clear in the prevailing circumstances that all the members of the AOP had combined together to purchase land with a pre-conceived idea to commercially exploit the property and make profits by immediate sale thereof as a business adventure. In totality, the circumstances are weighed against the assessee when tested on the touchstone of preponderance of probabilities. Therefore, We see no error in the action of the revenue in treating the investment in purchase of land as unexplained investment under S. 69 for the relevant assessment year 1993-94 which is rightly assessed in the hands of the AOP. We also do not find any fault in treating the transaction of purchase and sale as a part of business deal.
Issues Involved:
1. Jurisdiction of the Income Tax Officer (ITO) over the case. 2. Validity of the assessment order. 3. Timing and genuineness of the purchase of agricultural land. 4. Payment of consideration for the purchase of agricultural land. 5. Possession date of the agricultural land. 6. Genuineness of the 'Kabje Pawti' document. 7. Source of deposit in the bank account. 8. Consideration of bank withdrawals and personal income as sources of investment. 9. Use of agricultural land for agricultural purposes. 10. Taxation of investment in agricultural land as business profit. 11. Classification of the investment as an adventure in the nature of trade. 12. Confirmation of the status of Association of Persons (AOP). 13. Applicability of Section 69 of the Income Tax Act. 14. Assessment of investment in the hands of AOP versus individual co-owners. 15. Charging of interest under Sections 234A and 234B. 16. Costs of the appeal. Detailed Analysis: 1. Jurisdiction of the Income Tax Officer (ITO) over the case: The assessee objected to the jurisdiction of the ITO, Ward-1(3), Nashik. The Assessing Officer (AO) noted that the jurisdiction was shifted to ITO, Ward-2(2), Nashik, as per the order of the CIT(A)-I, Nashik. The CIT(A) upheld this jurisdictional shift and found no merit in the assessee's objection. 2. Validity of the assessment order: The assessee contended that the assessment order should be quashed as it was without jurisdiction. However, the CIT(A) and the Tribunal found that the AO had valid jurisdiction and the assessment order was upheld. 3. Timing and genuineness of the purchase of agricultural land: The assessee claimed that the land was purchased in December 1993, but the AO found that the purchase deed dated 19.03.1993 indicated the purchase. The CIT(A) and the Tribunal upheld the AO's finding that the land was purchased in the assessment year 1993-94. 4. Payment of consideration for the purchase of agricultural land: The AO concluded that the consideration of ?13,96,000/- was paid during the year under review. The assessee's claim that only ?3,39,000/- was paid during the year was rejected due to lack of documentary evidence. The Tribunal upheld the AO's conclusion. 5. Possession date of the agricultural land: The AO found that the possession of the land was taken by the members of the AOP from 1994-95, contrary to the assessee's claim of possession since 1985-86. The CIT(A) and the Tribunal upheld this finding. 6. Genuineness of the 'Kabje Pawti' document: The AO and the CIT(A) doubted the genuineness of the 'Kabje Pawti' dated 02.01.1996. The Tribunal upheld the CIT(A)'s finding that the document was not genuine. 7. Source of deposit in the bank account: The AO observed that the deposit in the bank account of Mr. Iqbal Khatib was claimed to be out of agricultural income, but no such claim was made. The CIT(A) and the Tribunal upheld the AO's finding. 8. Consideration of bank withdrawals and personal income as sources of investment: The AO rejected the assessee's claim that bank withdrawals and personal income from agricultural and dairy farming were sources of investment. The CIT(A) and the Tribunal upheld this rejection. 9. Use of agricultural land for agricultural purposes: The AO found that the land was not used for agricultural purposes. The CIT(A) and the Tribunal upheld this finding. 10. Taxation of investment in agricultural land as business profit: The AO concluded that the investment in the land was for business purposes and taxed it as business profit. The CIT(A) and the Tribunal upheld this conclusion. 11. Classification of the investment as an adventure in the nature of trade: The AO and the CIT(A) classified the investment as an adventure in the nature of trade. The Tribunal upheld this classification. 12. Confirmation of the status of Association of Persons (AOP): The AO assessed the investment in the hands of the AOP. The CIT(A) and the Tribunal confirmed this status. 13. Applicability of Section 69 of the Income Tax Act: The AO applied Section 69 to assess the investment as unexplained. The CIT(A) and the Tribunal upheld this application. 14. Assessment of investment in the hands of AOP versus individual co-owners: The AO assessed the investment in the hands of the AOP, despite it being taxed in the hands of individual co-owners on a protective basis. The CIT(A) and the Tribunal upheld the assessment in the hands of the AOP. 15. Charging of interest under Sections 234A and 234B: The AO charged interest under Sections 234A and 234B. The CIT(A) and the Tribunal found the charging of interest justified. 16. Costs of the appeal: The assessee's request for the cost of the appeal was not granted. Conclusion: The Tribunal dismissed all the appeals of the assessee for the assessment years 1993-94, 1996-97, and 1998-99, upholding the findings and conclusions of the AO and the CIT(A). The issues of jurisdiction, validity of the assessment order, timing and genuineness of the land purchase, payment of consideration, possession date, genuineness of documents, source of deposits, use of land, taxation as business profit, classification as an adventure in trade, status of AOP, applicability of Section 69, assessment in the hands of AOP, charging of interest, and costs of the appeal were all decided against the assessee.
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