2017 (9) TMI 719 - AT - Income Tax

Income arising from sale of flats - nature of income - capital gain or income from other sources - admission of additional evidences - Held that - We have observed that the assessee company is engaged in the development of land, construction of buildings and sale of flats. The assessee had sold five flats during the year against which three agreements were submitted by the assessee before the lower authorities. The assessee could not submit the other two agreements of the flat which was stated to be sold during the year viz. flat No. 7 & 16 in E Building, J P Nagar. Now, it has come on record that these agreements have been located and application is moved by the assessee to admit the same as an additional evidence under the Income-tax(Appellate Tribunal) Rules, 1963. The said agreements were stated by the assessee to be not traceable due to death of the Managing Director of the assessee company. As observed that these additional evidence being two agreements which the assessee could not submit before the authorities below and infact these two agreements goes to the root of the matter and are important for adjudicating the issues covered by this appeal because the authorities below made additions to the income from unsubstantiated sources mainly on the grounds that these agreements were not traceable.Thus, we are inclined to set aside and restore the issues covered by this appeal to the file of the AO for de-novo determination of the issue on merits in accordance with law. Appeal of the assessee allowed for statistical purpose.

Summary

Issues Involved:
1. Sustaining the Order of the Assessing Officer by relying on the Order passed by CIT(A) for A.Y. 2006-07.
2. Treating income from the sale of flats as arising from the business of property development.
3. Applicability of Section 50C and the adoption of Stamp Authorities' value.
4. Estimation of net profit at 12% on the value adopted by the Stamp Authorities.
5. Ignoring respective values of copies of three Agreements.
6. Taxing the entire income as "Income from Other Sources" and not giving any deduction for expenses.
7. Additional ground regarding the difference between opening and closing stock.

Detailed Analysis:

1. Sustaining the Order of the Assessing Officer by relying on the Order passed by CIT(A) for A.Y. 2006-07:
The assessee argued that the CIT(A) erred in sustaining the AO's order by relying on the previous order for A.Y. 2006-07 without proper application of mind. The Tribunal admitted the additional ground of appeal, considering it purely legal, in line with the Supreme Court's decision in National Thermal Power Corporation Limited v. CIT.

2. Treating income from the sale of flats as arising from the business of property development:
The AO treated the income from the sale of flats as business income, not as income from other sources. The assessee contended that they are property developers and thus, Section 50C should not apply. The Tribunal considered the additional evidence of sale agreements for Flat No. 7 and Flat No. 16, which were not previously available due to the death of the Managing Director and subsequent mismanagement.

3. Applicability of Section 50C and the adoption of Stamp Authorities' value:
The AO adopted the value determined by the Stamp Authorities (?14,11,000) instead of the agreement value (?6,96,000). The assessee argued that as developers, Section 50C should not apply. The Tribunal noted the additional evidence and directed the AO to re-examine the issue with the newly submitted agreements.

4. Estimation of net profit at 12% on the value adopted by the Stamp Authorities:
The AO estimated a net profit of 12% on the Stamp Authorities' value without rejecting the books of accounts. The Tribunal directed the AO to reconsider this estimation in light of the additional evidence provided by the assessee.

5. Ignoring respective values of copies of three Agreements:
The AO ignored the values of Flat No. 7, Flat No. 16, and Flat No. 306 due to the lack of agreements. The Tribunal admitted the additional evidence and remanded the case to the AO for a fresh evaluation of these agreements.

6. Taxing the entire income as "Income from Other Sources" and not giving any deduction for expenses:
The AO taxed the entire income of ?1,95,000 as "Income from Other Sources" without allowing deductions for expenses. The Tribunal instructed the AO to reconsider this classification and the associated deductions based on the additional evidence.

7. Additional ground regarding the difference between opening and closing stock:
The assessee raised an additional ground regarding the non-deduction of the difference between opening and closing stock (?13,61,415) from total sales. The Tribunal admitted this ground and directed the AO to address it during the re-assessment.

Conclusion:
The Tribunal admitted the additional evidence and remanded the case to the AO for a de-novo determination of all issues on merits, considering the newly submitted agreements. The AO is instructed to provide the assessee with a proper hearing and to adjudicate the matter in accordance with the law. The appeal is allowed for statistical purposes.