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TMI Blog2017 (2) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... peal preferred by the assessee, the assessee has preferred present Tax Appeal with the following proposed question of law. "A. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal was justified in conforming that cash sum of Rs. 1.50 crore was received by the appellant in respect of the land deal of survey no. 206 of Chandlodiya and further that, it was received only by the appellant to the exclusion of others so that the entire sum of Rs. 1.50 crore was assessable on substantive basis in the hands of the appellant as business income instead of short term capital gains ? B. Whether on the facts and in the circumstances of the case as well as in law, the Appellate Tribunal was justified in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total consideration of Rs. 4,25,000/by a purchase deed executed on 17.07.2007. Late on, two of its coowners released their share in favour of the assessee for consideration of Rs. 1,00,000/. Thus, according to the assessee, the assessee had 60% share in the said property. 2.2 During the course of search under Section 132 of the Act carried out in Umiya Group on 4.3.2010 incriminating material / document and loose papers relating to the said land were found and seized which included the Kaccha receipts in respect of the said land with particulars of deal and the assessee having acknowledged in all Rs. 11 lakh consisting of Rs. 1 lakh on 3.5.2008 and Rs. 10 lakh on 6.5.2008. That the said deal was between the assessee and four other coowne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also treated the payment of Rs. 2 lakhs paid to two coowners towards release of their share as unexplained expenditure on the ground that source was not explained. 2.4. Feeling aggrieved and dissatisfied with the assessment order passed by the AO, the assessee preferred appeal before the learned CIT(A). The learned CIT(A) treated undisclosed short term capital gain as business income and also worked out the undisclosed income from the said transaction at Rs. 1,50,91,800/. 2.5. Feeling aggrieved and dissatisfied with the impugned order passed by the learned CIT(A), the assessee preferred appeal before the learned ITAT. The learned ITAt by impugned judgment and order has dismissed the said appeal preferred by the assessee and has confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the 40% of the share was with other to co-owners. It is submitted that merely because the cash receipt, MOU, Banakhat were signed by the assessee and entire amount cannot be included in the account of assessee on substantive basis. 4.3. It is further submitted by Shri Divatia, learned counsel for the assessee that even otherwise, the learned Tribunal has materially erred in confirming the order passed by the learned CIT(A) by treating the entire gain on sale of the land in question as business income as against the short term capital gain assessed by the AO. Making above submissions, it is requested to admit / allow the present appeal. 5.0. Present appeal is vehemently opposed by Ms. Mauna Bhatt, learned counsel for the revenue. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also the case on behalf of the assessee that even his share in the land was 60% only and therefore, even, on money received in cash will come to share of the assessee to the extent of 10% only and 40% with other co-owners. However, considering the order passed by the learned CIT(A) confirmed by the learned Tribunal on appreciation of evidence, more particularly, so far as document i.e. Kaccha receipt, Banakhat, MOU signed by one Vikas Patel and the assessee and details of the payment mentioned in the said MOU which was signed by the assessee and which was duly executed by the assessee both learned CIT(A) as well as learned Tribunal have held that unaccounted payment of Rs. 1.50 Crore has been made on the land in question. While holding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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