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TMI Blog2016 (8) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Ramdas Dhore who had later sold 14 plots to one M/s United Builders and Developers for 15 lacs and 14 plots to Shri Sahebrao Wadekar for 15 lacs and the sale proceeds totalling 30 lacs were directly paid to the assessee by these two purchase parties. Further more the assessee has also made application for conversion of the said land for non agricultural land for residential purpose. Thus the assessee was aware of the purpose for which the entire transaction was being entered at the threshold. There is no evidence of any cultivation activity on the said land. The assessee has not disclosed any agricultural activity/income/expenditure on the said land. Rather the facts of the case clearly indicate that the assessee was in the process of converting the land into non agricultural land and he eventually sold for non agricultural activities. Hence agree with the conclusion of the learned CIT(Appeals) that the facts of the case that no agricultural operation being carried out in the said property, the efforts to convert the said land into non agricultural land, taking advance from the eventual purchaser even before the said property had been purchased and being aware all along that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ₹ 20 lacs. ₹ 15 lacs. 3. It was further submitted that the post dated cheques were not honoured by the buyer and the transaction was not completed by them and substantial consideration of the property was not received and therefore the possession of the property was also not handed over. The AO made further enquiries by way of recording the statement of Shri Rajendr Ramdas Dhore (the purchaser of the property) wherein the above fact of payment of ₹ 5 lakhs and the dishonouring of the post dated cheques was confirmed by him. It was further stated by him that he had received possession of the said property on 22-04- 2009 and that he had later sold 14 plots to one M/s United Builders and Developers for ₹ 15 lakhs and 14 plots to Shri Sahebrao Wadekar for ₹ 15 lakhs and the sale proceeds totalling ₹ 30 lakhs were directly paid to the appellant by these two purchase parties. 4. The AO further noted that on perusal of the said sale deed of plot sold by Rajendra Ramdas Dhore to M/s United Builders and Developers and to Shri Sahebrao Wadekar it could be seen that the appellant was also a signatory to the said sale deeds in the capacity of being a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances and not by applying any single factor or test. 5.1 In the case at hand, the intention of the appellant can be most clearly made out by the fact that even before the said property was purchased by the appellant on 25-03-2008 for a consideration of ₹ 31,50,000/-, he had received the advance payment of ₹ 5 lacs on 10-03- 2008 against the sale consideration of ₹ 60 lacs for the said property. This fact emerges from the sale deed itself. Thus the fact that the appellant had entered into the transaction of sale even before executing the purchase deed makes the business intention of the appellant more than evident. In this context it is important to note that eventually the sale consideration of ₹ 30 lacs was received by the appellant directly from the builders to whom the said land was eventually sold and who plotted the land and sold it in pieces. The appellant was one of the 'witnesses' who signed the sale deed when the land was sold to Rajendra Ramdas Dhore who had later sold 14 plots to one M/s United Builders and Developers for ₹ 15 lacs and 14 plots to Shri Sahebrao Wadekar for ₹ 15 lacs and the sale proceeds totaling ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The court has to answer the question on a consideration of all of them a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts. " Several judgments of this court and the Nigh Courts were referred to including a judqment of the Bombay High Court Vs V. A. Trivedi [1988J 172 fTR 95. On a consideration of the factors for and against, the Bombay High Court observed in V. A. Trivedi's case [1988] 172 fTR 95 that for ascertaining the true character and the nature of the land, il must be seen whether it has been put to use for agricultural purposes_for a reasonable span of time prior to the date of sale and further whether on the date of sale the land was intended to be put to use for agricultural purpose for a reasonable span of time in future. Examining the case from the said point of view, the High Court held that the fact that the agreement of sale was entered into by the assessee with a housing society is of crucial relevance since it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto non agricultural land was moved that was done on the behest of the ultimate purchaser. Learned counsel of the assessee further placed reliance upon the following : 1. Decision of Bombay High Court in Smt. Maltibai R. Kadu. 2. Decision of ITAT Nagpur Bench in ITA Nos. 112, 113 & 147/Nag/2012. 3. Circular No. 17/2015 dated 06-10-2015. 4. Decision of Karnataka High Court in 341 ITR 289. 5. Decision of Delhi High Court in 335 ITR 77 Hindustan Industrial Resources Ltd. Hence learned counsel of the assessee submitted that the assessee has sold an agricultural land and the same is exempt from the purview of taxation. 9. Per contra, learned D.R. relied on the orders of the authorities below. He submitted that even before execution of the purchase deed of the said land the assessee had entered into an agreement to sell the same. That the assessee has also obtained an advance in this regard. That the assessee was party as a witness to the sale of land to the builders. That from them the assessee has directly received substantial part of the consideration. That the assessee has also moved application for conversion of the said land for non agricultural uses. That there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of guidelines. The question has to be answered in each case having regard to the facts and circumstances of that case. There may be factors both for and against a particular point of view. The court has to answer the question on a consideration of all of them a process of evaluation. The inference has to be drawn on a cumulative consideration of all the relevant facts. " Hence I agree with the conclusion of the learned CIT(Appeals) that the facts of the case that no agricultural operation being carried out in the said property, the efforts to convert the said land into non agricultural land, taking advance from the eventual purchaser even before the said property had been purchased and being aware all along that the said land will be used for plotting by builders clearly reflects the commercial and profit element in the purchase and sale of the said property. 14. In this regard the decision of Hon'ble Apex Court relied upon by the learned CIT(Appeals) in the case of Gemini Pictures Circuit Private Ltd. 220 ITR 43 wherein the observation of the Hon'ble Apex Court in the case of Sarifabibi Mohmed Ibrahim vs. CIT 204 ITR 631 has also been considered is germane and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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