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2016 (10) TMI 529 - AT - Income TaxCapital gains brought to tax on sale of certain lands claimed to be agricultural lands - Held that - The contention of AO that he has received full amount cannot be accepted. Even the sale deed indicate separate payments. Therefore, considering the entire amount may not be correct. However, these aspects can again be examined since the nature of ownership itself requires examination. In case assessee has not purchased lands but acquired certain rights by way of AGPA, then whether the transaction result in adventure in nature of trade also require further examinations. The issue whether the gain if any is to be assessed as Short Term Capital Gains or Business can be considered on examination of facts. In order to examine the above aspects, we hereby set aside the orders of AO and CIT(A) and restore the entire issue to the file of AO, who should examine all aspects and re-do the assessment based on facts and law. Needless to state that assessee should be given due opportunity in the proceedings.
Issues Involved:
1. Delay in filing the appeal. 2. Classification of land as agricultural land or capital asset. 3. Consideration received from the sale and its tax implications. 4. Ownership and rights over the land. 5. Applicability of HMDA jurisdiction. 6. Nature of income (Short Term Capital Gains vs. Business Income). Detailed Analysis: 1. Delay in Filing the Appeal: The appeal memo was filed with a delay of twenty-six days, including intervening holidays. Both the assessee and his counsel provided affidavits explaining the cause of the delay. The Tribunal found sufficient cause for the delay and admitted the appeal. 2. Classification of Land as Agricultural Land or Capital Asset: The assessee claimed the lands sold were agricultural and thus not capital assets. The Assessing Officer (AO) disagreed, noting the lands fell within HMDA jurisdiction per G.O. No. 274, thus not qualifying as agricultural lands. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld this view, stating the appellant did not prove agricultural operations or income from these lands. The Tribunal noted the need for clear facts and remanded the issue back to the AO for further examination. 3. Consideration Received from the Sale and Its Tax Implications: The assessee reported receiving ?9,15,000 from the sale, claiming the rest went to a consenting party per an oral agreement. The AO taxed the entire sale consideration of ?61,00,000 as Short Term Capital Gains. The CIT(A) found inconsistencies in the appellant's claims and upheld the AO's decision but directed a re-examination of the cost of acquisition. The Tribunal noted the need to verify the exact amounts received by the assessee and the consenting party, and remanded the issue for further examination. 4. Ownership and Rights Over the Land: The AO and CIT(A) presumed the assessee owned the lands. However, the Tribunal found the sale deeds indicated the assessee acted as a General Power of Attorney (GPA) holder, not the owner. The Tribunal noted the need to examine the AGPA documents to determine the nature of ownership and rights over the land. 5. Applicability of HMDA Jurisdiction: The AO and CIT(A) held that the lands fell within HMDA limits, thus classifying them as capital assets. The Tribunal noted that the applicability of HMDA jurisdiction depends on the ownership status and remanded the issue for further examination. 6. Nature of Income (Short Term Capital Gains vs. Business Income): The CIT(A) and AO treated the profits from the sale as Short Term Capital Gains. The Tribunal noted the need to examine whether the transaction was an adventure in the nature of trade, which could classify the income as business income. This determination depends on the facts and nature of ownership, which require further examination. Conclusion: The Tribunal set aside the orders of the AO and CIT(A) and remanded the entire issue back to the AO for a comprehensive re-examination of all aspects, including ownership, the nature of the land, the exact consideration received, and the classification of income. The AO is directed to re-do the assessment based on the facts and applicable law, ensuring the assessee is given due opportunity in the proceedings. The appeal is allowed for statistical purposes.
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