Sanjana S. Morajkar., Panaji vs Department Of Income Tax

ACIT, Circle-1(1), Vs. Shri Surajdatta S. Morajkar, Panaji. Morajkar House, Opp. Volley Ball Ground, Saipem, Candolem, Goa.

PAN No. AEMPM 7614 J (Appellant) (Respondent)

ITA Nos. 391/PNJ/2014 (Asst. Year : 2011-12)

ACIT, Circle-1(1), Vs. Mrs. Sanjana S. Morajkar, Panaji. Morajkar House, Opp. Volley Ball Ground, Saipem, Candolem, Goa.

PAN No. AFVPM 8836 J (Appellant) (Respondent)

C.O. No. 04/PNJ/2015 (Asst. Year : 2011-12)

Shri Surajdatta S. Morajkar, Vs. JCIT, Range - 1, Morajkar House, Panaji. Opp. Volley Ball Ground, Saipem, Candolem, Goa.

PAN No. AEMPM 7614 J (Applicant) (Respondent) 2

C.O. No. 05/PNJ/2015 (Asst. Year : 2011-12)

Mrs. Sanjana S. Morajkar, Vs. JCIT, Range - 1, Morajkar House, Panaji. Opp. Volley Ball Ground, Saipem, Candolem, Goa.

PAN No. AFVPM 8836 J (Applicant) (Respondent)

Assessee by : Shri Raghu K. Pikale - AR Department By : Shri Manjunath I. Pujar - DR Date of hearing : 23/03/2015. Date of pronouncement : 23/03/2015.

ORDER PER D.T. GARASIA, J.M

The appeals by the Department and the Cross Objections by the

different assessees are directed against the separate orders of

Ld. CIT(A), Panaji each dated 08/08/2014 for the A.Y. 2010-11. Since

the common issue involved and the matters were heard together, so

these are being disposed of by this common order.

2. First we will take up I.T.A.No. 390/PNJ/2014. The following

grounds are raised:-

"1. The order of the learned CIT(A) is opposed to law and facts of the case.

2. The Ld CIT(A) failed to appreciate that the assessee is a builder and developer and he purchased land with a view to selling it later after developing the same, he is carrying on activity resulting in profit and the activity can only be described as a business venture & assessee himself offered the profit on sale of plot of Rs.2,23,80,000 as business profit in the 3

original return of income filed. Reliance is placed on the decision of Supreme Court in the case of Raja J. Rameswar Vs CIT(SC)42ITR179.

3. CIT(A) failed to appreciate that the accounting entries in the books is not conclusive proof to determine the nature of the transaction/asset viz. whether it is a business asset or capital asset. It is the true nature and the quality of the receipt/asset and not the head under which it is entered in the account books that would prove decisive. Reliance is placed on the decision Chowringhee Sales Bureau (P.) Ltd. V. CIT(1973) 87 ITR 542 (SC) & Hoshiarpur Electric Supply Co. V. CIT(1961) 41ITR608 (SC) in deleting the addition amounting to Rs. 1,11,90,0007- (being 50% Rs.2,23,80,000/-).

4. The Ld CIT(A) failed to appreciate that the land purchased by the assessee had potentiality of being developed into building site - No agricultural operations were carried out on land by the assessee amounts to Adventure in the nature of trade. Reliance is placed on the decision in the case of Badrilal Bholaram Vs CIT (MP) 139 ITR 207, CIT Vs B.Narasimha Reddy (Kar) 150ITR347 & CIT Vs M.Krishna Rao (AP) 120ITR101.

5. Without prejudice the above CIT(A) failed to appreciate that evidence showing that no agricultural operations were carried out on land and hence the land cannot be treat as agricultural land & it is liable to capital gains. Reliance is placed on the Bombay High Court decision in the case of Fazalbhoy Investment Co. Ltd. Vs. CIT (Bom) 176 ITR 523 & Kalpetta Estates Limited Vs CIT (Ker) 185 ITR 318.

6. The CIT(A) erred in not considering report of the inspector of this office merely on the ground that the assessee is not given the opportunity to explain his stand on this report. The inspector of this office who measured the land held that the land sold by the assessee is well within the 8 Kms from Municipal Limits & CIT(A) wrongly relied on the Village Panchayat Certificate brought by the assessee which is self serving.

7. Whether the Ld CIT(A) is right in deleting the disallowance of expenses of Rs. 10,00,0007- under the facts and circumstances.

8. For these and other grounds that may be urged at the time of hearing it is prayed that the order of the learned CIT(A) may be set aside and order of Assessing Officer is restored.

9. The appellant craves, leave to add, amend or alter any of the grounds of the appeal either before or at the time of hearing."

Grounds No. 1 to 5:

3. Short facts of the case are that the assessee is in real estate

business and has filed return of income on 30/09/2011 declaring total 4

income of Rs. 72,28,588/-. During the course of scrutiny, assessee

admitted net profit from sale of plot at Rs.2,23,80,000/-. However, it

is to be noted that survey u/s 133A was conducted in the assessee's

premises on 22-02-2012. After survey, assessee has filed revised return

on 30-09-2012 in which he omitted to disclose the above receipt of

profit on sale of land and has not mentioned any note or explanation in

the revised return in respect of the above omission. In the capital

account, it is shown as of indirect income by way of sale of Agricultural

plot at Batim, for which assessee has explained that he had purchased

an agricultural land admeasuring 15,400 sq. mts located at Survey No.

119/3-C of Village Batim, Panaji-Goa. In the survey record in Form I &

XIV the land is classified as agricultural land and consists of cashew

trees, mango trees and teak wood. The local Village Panchayat of

Batim has issued a certificate to the effect that the land is more than

9 kms from the Panaji city limits and is in the agricultural zone.

Section 2(14) which defines Capital assets excludes from it's purview

agricultural land which is more than 8 kms from local limits of any

municipality. The Assessing Officer has not accepted for the reason

that the assessee is in the business of real estate and builder. The said

land was purchased and sold during the previous year relevant to this

assessment year itself. In the circumstances, it cannot be claimed that

the assessee has purchased the same as Agricultural land. The assessee 5

has also not carried out any agricultural operations or taken any steps

in furtherance thereof. Also no agricultural income has been admitted

from this plot. It is only a purchase and sale of land in the course of

assessee's business. Enquiries have also been caused to be made to

verify the nature of land and whether any Agricultural operations have

been carried out by the assessee. In the report of Inspector, it is

found that the property owned by Shri. Suraj Morajkar and Smt.

Sanjana S. Morajkar which is located at Survey No.119/3-C of Village

Batim, Tiswadi Taluka, Goa. As per the report, this property is known

as Vacombi, measuring about 15400 sq. mts and situated near Maina

and Gancim wards of Batim Village. It is seen that in this property

there are no fruit bearing trees and only wild forest trees exists. Mr.

Jemajo Braz Rego who sold the land to the assessee was met and

enquired. It is stated that no agriculture activity or cultivation was

done by him at any point of time. Further as seen from the state of the

land no agricultural activity was carried on by the assessee. At

present, there is neither agricultural activity going on nor any

agricultural laborers working anywhere in this property. It is also seen

that this said property is situated within 8km. kilometers from the

limits of Panaji Municipal Corporation as per Inspector's report. From

the above facts and the findings of the enquiry, the claim of the

assessee that the plot is Agricultural land and hence cannot be 6

considered as Capital asset as per the provisions of section 2(14)

cannot be accepted and the claim is untrue and non-genuine for the

following reasons:-

1. The land is Non-Agricultural and is only wild forest.

2. No Agriculture activity and Cultivation has been carried out at any time by the previous owner, the assessee and the present owner.

3. No Agricultural Income has been derived from the land at any time.

4. Pre-requisite for claiming exemption of Capital Gains is that agricultural activity/cultivation should have been carried out.

5. Most importantly the said land is within 8 Kms distance from the limits of Panaji Municipal Corporation.

6. It is an afterthought on the part of the assessee to change the above receipt of business profit into sale of agricultural land and assessee filed revised return for this purpose after the survey.

Reliance is placed on the decision of High Court of Bombay in the

case of Fazalbhoy Investment Co. P. Ltd. Vs Commissioner of Income-

tax, reported in 176 ITR 523 (BOM) which is squarely applicable to the

facts of the assessee's case. (In the absence of any evidence to show

that the land was put to any agricultural use at any particular point of

time even in the past, apart from the sale of some mangoes and grass,

it could not be held that he lands could be treated as agricultural

lands. The assessee used the land merely to extract timber, that they

did not plant any tree, that it was at all times a private forest and no

development was effected therein, that no agricultural operations 7

were carried on in the lands purchased, all will go to forest show\that,

at time of transfer of the capital assets, it was forest land exigible to

capital gain tax.). Accordingly, the purchase and sale of the above

land is treated as business transactions and profit derived therefrom is

assessed to tax as Business Income and thereby added to the income

returned.

4. The matter was carried to the ld. CIT(A) and the ld. CIT(A) has

deleted the addition by observing as under:-

"I have perused the evidences submitted by the appellant and find them in order. Therefore I find that there are factual mistakes in the assessment order as under:

i. The land has 'not been purchased and sold within one financial year, but the same has been done in 3 financial years.

ii. The land does not have only wild growth, but it has cashew, mango and teakwood plantation and a tenant is cultivating the land and pressing for his tenancy rights.

iii. The land is not within 8 kms. from the municipal limits of Panaji Corporation.

Thus, it can conclusively be said that the land in question is an agricultural land not situated within 8 kms. from the municipal limits of a municipal corporation. The A.O. sent his Inspector for spot verification of the land and obtained a report and the same was used by the A.O. against the assessee in the assessment order. Apparently, this inquiry was carried out by the A.O. behind the back of the assessee. There is nothing wrong with this. But since the A.O. desired to use it against the assessee as a piece of evidence, he was under obligation to confront the 8

assessee with Inspectors Report. Since the A.O. failed to do so, the Inspectors Report becomes irrelevant.

Now, coming back to the intention of the appellant, the A.O. treated the gain arising out of sale of land, as business income, because the assessee is a real estate developer and builder by profession. One's intention can be determined, through his conduct. After purchase of land, the appellant accounted for the same as 'Investment' and not 'stock-in-trade' in his books. I have verified the Balance-Sheet of the appellant and find that, the land has been recorded as Investment. Besides this, the appellant also sought permission from the Village Panchayat for construction of a 'Farm House' proving that he actually wanted to continue with agricultural operations there. He did not seek permission to construct apartments or shopping centres. He did not even apply for conversion from Agricultural to N.A. In my opinion, the conduct of the appellant is enough testimony of his intent that he wanted to carry agricultural operations and not do any business of real estate development.

Therefore, since the facts of this case are different from that of Fazalbhoy Investment Co. Pvt. Ltd., in my opinion, the A.O. reliance on this decision is misplaced.

The appellant has placed reliance on the decision of Hon. Supreme Court in the case of Sarifabibi Mohmed Ibrahim Vs. CIT [1993] 204 ITR 631. In this case the Humble Apex Court has laid down the test regarding agricultural land. These tests were considered by Hon'ble Bombay High Court while delivering verdict in the case of CIT Vs. Minguel Chandra Pais [2006] 282 ITR 618 and subsequently in the case of .CIT Vs. Ms. Debbie Alemao and Joaquim Alemao [2011] 331 ITR 59. In all these cases, the decision is that once it is established that land in question is an agricultural land, income from sale of such land will not form part of the Gross Total Income. In view of the facts of this case and the evidences placed before me, I have no doubt, that the land sold in the instant case, is an agricultural land and therefore is covered by the decision of the Jurisdictional High Court. The A.O. is, accordingly, directed to delete the addition of 9

Rs.2,23,80,000/-( Va share Rs.1,11,90,000/-). These two grounds of appeal of the appellant are allowed."

5. Learned DR submitted that assessee is in real estate business and

he has not carried out any agricultural operations or taken any steps in

furtherance thereof. Therefore, Inspector was deputed and the

Inspector has given report that this land is not agricultural land and it

is within 08 km. from municipal limits. Therefore, Assessing Officer is

justified in his action.

6. Learned AR relied upon the order of the Ld. CIT(A) and submitted

that this land is agricultural land consisting of cashew plantation,

mango trees and teak wood plantation. Panchayat permission was

obtained for building a farm house and compound wall. The said land

is agricultural land and in Form I & XIV, it is shown as garden and the

distance is 9 km. away from Panaji Municipality, therefore Ld. CIT(A)

is justified in his action.

7. We have heard rival contentions of both the parties. Looking to

the facts and circumstances of the case, we find that the Ld. CIT(A)

has verified the sale deed, record of rights and the certificate of

village Panchayat Batim. The Ld. CIT(A) has held that the land has

been purchased and it is sold within three financial year. The land has 10

cashew nuts, mango trees, teak wood plantation and tenant is

cultivating the same and pressing his tenancy right. The Ld. CIT(A) has

given this fact on the basis of the evidence that the tenant has filed

the suit against the owner of the property. Ld. CIT(A) has also further

held that the land is not within 8 km. from the municipal limit. Ld.

CIT(A) has held that assessee is a real estate developer, but he has not

shown this purchase of land as stock-in-trade in his books of accounts.

The Ld. CIT(A) has verified the balance sheet of the assessee and found

that the land is recorded as investment. The assessee sought

permission from village Panchayat for consutrciton of farm house. The

Ld. CIT(A) has held that this land is agricultural land this is a finding of

fac. The Ld. CIT(A) has also relied upon the decision of Hon'ble

Supreme Court in the case of Sarifabibi Mohmed Ibrahim Vs. CIT (204

ITR 631). These tests were considered by Hon'ble Bombay High Court

in the case of CIT Vs. Ms. Debbie Alemao and Jaoquim Alemao (331 ITR

59). Learned CIT(A) relied upn this decision and held that the land in

questionis an agricultural land and income from sale of such land will

not farm part of gross total income. Hence, Ld. CIT(A) has allowed the

appeal of the assessee. Therefore, we confirm the action of Ld. CIT(A)

and appeal of the Department is dismissed.

11

Grounds No.6 & 7:

8. Short facts relating to disallowance of expenses are that during

the scrutiny proceedings, the Assessing Officer has found that some of

the vouchers/bills for the expenses under the head purchase of

materials, payment of contract, site labour charges, commission on

sale etc. are not properly vouched for. Further the vouchers do not

contain the complete details as to the nature of expenses, services

rendered and complete address of the recipient. For the above

defects and deficiencies in the claim of expenses, the Assessing Officer

disallowed Rs. 20,00,000/- and added the same to the income

returned.

9. The matter was carried to the ld. CIT(A) and the ld. CIT(A) has

held that Assessing Officer failed to give any specific reason or quote

any specific mistake in the expense voucher of the assessee. Such

disallowances through general and casual remark cannot be sustained.

Therefore Ld. CIT(A) has deleted the addition.

10. We have heard rival contentions of both the parties. The Ld.

CIT(A) has verified the vouchers of the assessee and did not find any

mistake, therefore he has deleted the addition. During the course of 12

hearing, learned DR did not point out any material against the finding

of Ld. CIT(A). Therefore, we confirm the same.

11. Grounds No. 9 & 10 are general in nature, so do not require any

comments on our part.

12. The facts of I.T.A.No. 390/PNJ/2014 are similar to the facts of

I.T.A.No. 391/PNJ/2014. Therefore, our findings given in former part

of this order shall apply mutatis mutandis to I.T.A.No. 391/PNJ/2014.

13. During the course of hearing, learned AR has not pressed the

cross objections, therefore, both C.Os. are dismissed as not pressed.

14. In the result, appeals of the Department as well as Cross

Objections of the assessees are dismissed.

(Order Pronounced in the open Court on 23 r d March, 2015).

Sd/- sd/- (P.K. BANSAL) (D.T. GARASIA) Accountant Member Judicial Member

Dated : 23 r d March, 2015.

vr/- 13

Copy to: 1. The Appellant 2. The Respondent 3. The ld.CIT 4. The CIT(A) 5. The D.R 6. Guard file. By order

Assistant Registrar I.T.A.T., Panaji