2017 (5) TMI 1398 - AT - Income Tax

Income from business of Real Estate - Held that - From a careful perusal of the sale agreement, MoU and the letter of developer dated 18.02.2015, it appears that assessee has received certain amount over and above the amount payable under the agreement for sale at the time of execution of the sale deed in favour of prospective buyers. But the quantification of the amount is not done by the AO nor any formula was worked out. In the light of these facts, it is of the view that this issue requires readjudication by the AO in the light of the letter of the developer, agreement for sale and MoU. If need be, the AO may summon the developer and examine him in the presence of assessee. If the assessee has received amount over and above the sale consideration, the same should be assessed as income of the assessee. Accordingly, this issue is restored to the file of Assessing Officer for readjudication afresh in the terms indicated above. Appeals of the assessee stand allowed for statistical purposes.

Issues:
- Addition of income from the business of Real Estate
- Transfer of land and taxation in different assessment years
- Incorrect computation of income
- Levying of interest under sections 234A and 234B of the Income Tax Act

Analysis:

Issue 1: Addition of income from the business of Real Estate
The appellant contested the addition of ?33,79,546 to their income as income from the business of real estate. The Assessing Officer (AO) concluded that the appellant had developed sites in the land and sold them to purchasers directly through a developer. The AO considered the appellant engaged in a business venture and taxed the income under the head 'income from business.' The CIT(Appeals) upheld this decision. However, the appellant argued that they had only executed sale deeds in line with the sale agreement and MoU with the developer, and the business income assessment was improper. The Tribunal found that the issue required further examination by the AO in light of the developer's statement and agreements. The matter was remanded for fresh adjudication.

Issue 2: Transfer of land and taxation in different assessment years
The appellant highlighted that the land was transferred in one assessment year, but the income was taxed in another. The appellant had entered into a sale agreement for the land, offered long-term capital gains for the relevant year, and later constructed flats for sale. The AO, after conducting an inquiry with the developer, concluded that the appellant was involved in a business venture. The Tribunal noted discrepancies in the AO's calculations and the need for a detailed assessment based on the agreements and developer's statement.

Issue 3: Incorrect computation of income
The appellant raised concerns about the incorrect computation of income, arguing that both the sale price and cost were inaccurately assessed, leading to excessive income determination. The Tribunal did not delve deeply into this issue due to the primary focus on the nature of the appellant's activities and the need for a reassessment based on additional information.

Issue 4: Levying of interest under sections 234A and 234B of the Income Tax Act
The appellant challenged the AO's decision to levy interest under sections 234A and 234B of the Income Tax Act, stating it was done erroneously. The Tribunal did not provide a detailed analysis of this issue but noted that if the primary assessment was incorrect, the interest levied would also be affected.

In conclusion, the Tribunal allowed the appeals for statistical purposes, remanding the case to the AO for a fresh assessment considering the developer's statement and agreements to determine the correct taxation of the appellant's income from the real estate business.

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