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TMI Blog2012 (10) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... ar under consideration. Even in the sale deed alleged to be executed during the year, the assessee was not shown as a seller of the property but merely as consenter to the transaction of sale - thus treating the gain arising out of sale transaction as business income is warranted - against assessee. - I.T.A.No. 107/Ind/2012. - - - Dated:- 16-7-2012 - SHRI JOGINDER SINGH AND SHRI R.C.SHARMA, JJ. Appellant by : Shri P.K.Jain, C. A. Respondent by : Shri R. A. Verma, Sr. DR ORDER PER R. C. SHARMA, A.M. This is an appeal filed by the assessee against the order of CIT(A)-I, Bhopal, dated 11.01.2012 for the assessment year 2007-08. 2. Following two grounds have been taken by the assessee :- 1. That on the facts and in the circumstances of the case, the ld. CIT(A) erred in law and not justified in not admitting copy of Anubandh Patra (Agreement to Sale) dated 10.05.1998 as additional evidence under Rule 46A of the Income Tax Rules, 1962 read with Section 250(4)(5) of the Income-tax Act, 1961,, which goes to the very root of the matter and involves a substantial cause in determining correct income and the correct tax liability for the year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave purchased eight Acres of Rural Agricultural land situated at Khasra No. 230, Gram Ratanpur Sadak, P.H.No.44 Tah. Huzur, Bhopal vide agreement to sale dated 10.05.1998 for Rs 18,40,000/-. The seller as per this agreement is M/s. Kanha Grab Nirman Sahakari Samiti, Bhopal. Admittedly, no sale deed was executed for such purchase. The agreement to sale dated 10.05.1998 was also admittedly not produced before the Assessing Officer and for which an application for acceptance of additional evidence was filed u/r 46A during the appellate proceeding. The application for additional evidence stands rejected. The land which was stated to be purchased through agreement to sale dated 10.05.1998 for Rs. 18,40,OOO/- was sold by executing two sale deeds dated 26.09.2006 and 16.10.2006 for Rs. 25,00,000/- each and for total consideration of Rs. 50,00,000/-. As per the two registered sale deeds, the seller is M/s. Kanha Grah Nirman Sahakari Samiti, Bhopal land the buyer party is M/s. Archana Construction, a .partnership firm. In both the registered deeds, the status of appellant is shown only to be a consenter of such sale transactions. The appellant has shown surplus of Rs. 24,20,000/- and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer has rightly rejected the claim of the appellant to be as exempted capital gain. It is seen that the appellant company is engaged in the business of real estate. The appellant company by such land transaction and as consenter with M/s Kanha Grah Nirman Sahakari Samiti, Bhopal and the buyer party M/s. Archana Constructions has earned/received income to the extent of Rs. 24,20,000/-. Such income is evidenced from the books of account of the appellant. This income is prima facie in the nature of adventure in nature of trade and, therefore, the action of the Assessing Officer assessing the total income of Rs. 24,20,000/- as business income as against the claim of the appellant as exempted capital gain is confirmed. 5. Against the above order, the assessee is in further appeal before us. 6. Shri P.K. Jain, C. A., appeared on behalf of assessee and contended that agricultural land was transferred in favour of the assessee in view of the extended provisions of Section 2(24) according to which even taking the possession of land amounts to transfer. He further contended that the agricultural land was excluded from the purview of capital assets as per Section 2(14)(iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, the assessee has shown that agricultural land so acquired was situated outside the Municipal Limit so as to classify the same under Section 2(14)(iii) of the Income-tax Act, 1961. No supporting material was placed before any of the authorities to substantiate the claim that the said agricultural land was outside the purview capital assets. Since the assessee was engaged in the business of developing real estate and sale of row houses, even if it is taken that the assessee has entered into agreement for purchase of the land, the same was meant for its business purpose. The agreement to sale dated 10.05.1998, was not produced before the Assessing Officer. The agreement to sale was produced before the CIT(A) for the first time, who did not accept the same as additional evidence and decline assessee s plea by observing that the assessee did not furnish the said sale deed dated 10.5.1998 to substantiate its claim that agricultural land was actually purchased way back in the year 1998. The agreement to sale dated 10.5.1998 goes to the root of the issue and for the substantial interest of justice, the CIT(A) should have accepted the same. As pr our considered view, for substan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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