Ita/784/2008 Of The Commissioner Of Income Tax v. Shri Shahrooq Ali Khan

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27 DAY OF AUGUST 2014. PRESENT THE HON’BLE MR.JUSTICEK N.KUMAR ANT) THER HON’BLE MRS..JUSTICEK RATHNAKA INCOME TAX APPEAL NO.’784 OF 200 BRIWEHEN 1.THE COMMIssIONER OF INCOME-TAX,C.R. BUILDING,QUEENS ROAD,BANGALORE,C.R. BUILDING,QUEENS ROAD,BANGALORE, «|THE ASST. COMMISSIONER OFINCOME-TAX (INTL. TAXN.)CIRCLE-19(1),.C.R. BUILDING,QUEENS ROAD,BANGALORE.».. APPELLANTS (BY SRI K.V.ARAVIND, ADV.) AND: SHRI SHAHROOO ALI KHAN,REP. BY GPA HOLDER SHRI SAMEER A KHAN, ASHED PROPERTIES & INVESTMENT,BARTON CENTRE, 807,) FLOOR, M.G.ROAD,BANGALORE —- 560 OO1.. RESPONDENT(BY SRI S.C.TIWARI, ADV. FOR |oRI L.GOVINDRAJ, ADV.) THIS INCOMB TAX APPBAL IS FILED UNDER SBCTION|260-A OF I.T. ACT, 1961 ARISING OUT OF ORDER DATED 1o-02-2008 PASSED IN ITA NO.968/BANG/2005, FOR THEASSESSMENT YEAR 2000-2001, PRAYING THAT THIS HON BLECOURT MAY BEB PLBASED TO: L.|FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW|SLATED THEREIN,SLATED THEREIN, Il.ALLOW THR APPBAL AND SBI ASIDEKE THR ORDERPASSED BY THE INCOME TAX APPELLATE TRIBUNAL,|BANGALORE IN ITA NO.968/BANG/2005, DATED 195-02A2OO8 AND CONFIRM THR ORDER OF THR’ APPELLATCOMMISSIONER CONFIRMING THERE ORDER PASSED BTHE ASSISTANT COMMISSIONER OF INCOME TAX (INTL. TAXN.), CIRCLE-19(1), BANGALORE, IN THE INTEREST OFJUSTICE AND EQUITY.|PASSED BY THE INCOME TAX APPELLATE TRIBUNAL,|BANGALORE IN ITA NO.968/BANG/2005, DATED 195-02A2OO8 AND CONFIRM THR ORDER OF THR’ APPELLATCOMMISSIONER CONFIRMING THERE ORDER PASSED BTHE ASSISTANT COMMISSIONER OF INCOME TAX (INTL. TAXN.), CIRCLE-19(1), BANGALORE, IN THE INTEREST OFJUSTICE AND EQUITY.| THIS TTA COMING ON FOR FINAL HEARING THIS DAY,|NKUMAR J* DELIVERED THE FOLLOWING: JU DBiGMENT The Revenue has preferred this appeal against theorder passed by the Income Tax Appellate Tribunal, Bangalore (for short hereinafter referred to as ‘the Tribunal’) upholding the order of the Commissioner ofIncome-Tax (Appeals), Bangalore, which held that the transaction involving transfer of capital asset in thehands of the assessee yielded in capital gains and notbusiness income in the hands of the assessee. 2. The property known as “Hepburn Hall” situatedin Convent Road in the Civil and Military Station ofBangalore,bearing.MunicipalNo.2belongsTO Miss.Rubab Mohamed Ali Kazerani, a resident of)Bombay. She entered into a Memorandum ofUnderstanding (for short hereinafter referred to as“MOU”) with the assessee to identify buyers for herproperty..InTeErmMot the|MOU,aaSUIToT Rs.95,90,00,000/- was paid by the assessee to the ownerof the property. The said MOU is dated 8[:/]June 1995. —Contemporaneously with MOU, the owner executed aletter dated 8[:/]June 1995 confirming that she hashanded over vacant possession of the said property tothe assessee in terms of the MOU. QOne more letter to|that effect was executed on the very same day. Thereafter, the assessee entered into a MOU with theIndian Society of the Church of Jesus Christ of Latter-day Saints and received a sum of Rs.3,73,35,320/- as.advance,thetotalsale.considerationbeingRs.12,47,84,400/-. In other words, though he paidRs.5,90,00,000/- to the owner, he earned a sum ofRs.6,97,84,400/- as income from the said property. —subsequently, the owner and the assessee executed aregistered sale deed dated 10[:/]May 1999 conveying theaforesaid property in favour of the said purchaser. —Thereafter, the assessee declared the income under the)head “capital gains” as Rs.3,19,60,831/-. The saidreturn was accepted under Section 143(1) of the IncomeTax Act, 1961 (for short hereinafter referred to as ‘theAct’). Thereafter, the proceedings were initiated for re-Opening of the assessment. The assessee was issuednotice. He entered appearance through a Counsel, fileda detailed reply and requested to drop the proceedings.Thereafter, the Assessing Authority, after carefully considering all the relevant documents produced, was ofthe view that the transaction in question is in thenature of trade and thus, profits/loss incurred inrespect of the transaction would be business incomeand accordingly, the assessee was taxed. 3. Aggrieved by the said order, the assesseepreferred an appeal to the Commissioner of Income Tax(Appeals). The Appellate Authority after referring tovarious judgments and statutory provisions was of theview that the transaction involved could have been|clearly seen as an investment transaction, had theappellant purchased it outright and then resold it. Thetime gap involved of over three years between purchaseand sale and the fact that it 1s an isolated transaction|made with own money and without improving theproperty turn in assessee’s favour. The MOU was not.for the purpose of simply identifying the prospectivebuyer or the consideration received by the seller was only a security deposit. That was a transaction bywhich the assessee transferred the property in questionin the manner prescribed in clauses (v) and (vi)introduced in Section 2(47) of the Act w.e.f. 1.4.1988. ©Therefore, the finding of the Assessing Officer that thedominant purpose of MOU was to identify buyer andengage in an adventure in the nature of trade is notsupported by the legal evidence. The property alsocannot be seen as “stock in trade” of the assessee’s|business. It cannot be excluded from the definition of“capital asset” as given in Section 2(14) of the Act. —Therefore, the Appellate Authority held that Section45(1) of the Act would apply in the facts of the case andnot Section 28(1) of the Act and therefore, the income istaxable as capital gains. 4. Aggrieved by the said order, the Revenuepreferred an appeal to the Tribunal. Though theTribunal recorded a categorical finding that Section o3(A) of the Transfer of Property Act is not attracted tothe facts of the case, it proceeded to hold thatnotwithstanding the language and the contents of theMOU, the assessee would have received the rights in theproperty very much as the owner. Though isolatedtransaction could also be considered to be resulting in abusiness transaction, consideration has to be given tosimilar operations carried out by the assessee in thepast or subsequent. The transaction in questionappears to be an isolated transaction with no historyand no subsequent instances also. The length ofholding of the property by the assessee from 8.6.1995—till 1.7.1998 1.e., more than three years, iS an)indication which supports the claim of the assessee that.the intention of the assessee was not to carry on thebusiness as an estate developer or a builder in property. —Therefore, the Tribunal held that the assessee must)succeed and therefore, the appeal came to be dismissed. Agerieved by the said order, the Revenue is in presentappeal. o. The substantial question of law framed at thetime of admitting the appeal on 2.12.2010 reads asunder: “Whether the Appellate Authorities werecorrect in holding that a sum _ oRs.6,37,00, 726/-recelvedbythe|assessee for the purpose of finding apurchaser of the property of Mrs.RubabMohamed Ali Kazerani, at No.1, CubbonRoad, Bangalore-Ol1, which was sold forRs.11,87 crores and the owner paidRs.5.5 crores cannot be brought to taxunder the head business income, butShould be brought to tax under the headcapital gains?’ 6. Learned Counsel for the Revenue assailing the impugned orders contends that, a reading of the MOU. makes it clear that it is not an agreement to purchasethe property. There is no intention on the part of theassessee to purchase this property as an investment. —On the contrary, the terms of the MOU categorically “Whether the Appellate Authorities werecorrect in holding that a sum _ oRs.6,37,00, 726/-recelvedbythe|assessee for the purpose of finding apurchaser of the property of Mrs.RubabMohamed Ali Kazerani, at No.1, CubbonRoad, Bangalore-Ol1, which was sold forRs.11,87 crores and the owner paidRs.5.5 crores cannot be brought to taxunder the head business income, butShould be brought to tax under the headcapital gains?’ 6. Learned Counsel for the Revenue assailing the impugned orders contends that, a reading of the MOU. makes it clear that it is not an agreement to purchasethe property. There is no intention on the part of theassessee to purchase this property as an investment. —On the contrary, the terms of the MOU categorically state that the assessee offered to identify the buyer forand on behalf of the owner and therefore, the MOUcame to be entered into authorizing the assessee to bethe sole and exclusive person to identify the buyers forthe schedule property or portion thereof. The ownerinformed the assessee that the total sale consideration|acceptable is Rs.9,50,00,000/-, which he received fromthe assessee. Further terms of the MOU clearly indicatethat any amount in excess of Rs.5,50,00,000/- payableby a purchaser would belong to the assessee. In theevent of the assessee not being able to receive anyhigher consideration, any loss so incurred would be tohis credit. Therefore, he contends that there was nointention on the part of the assessee to purchase thisproperty. Therefore, Section 53-A of the Transfer ofProperty Act is not attracted. Even otherwise also, thecase would not fall under Section 2(47)(vi) of the Act, asthe object of entering into MOU is to identify apurchaser and sell the property to him and make profit out of it. The income derived in this transaction is inthe nature of business income and accordingly, theAssessing Authority was justified in taxing it as abusiness income. 7. Per contra, learned Counsel appearing for theassessee contended that, though the MOU is not styledas an agreement of sale, however, it is not registered. Itis a document, which falls within the definition of)section 2(47)(vi) of the Act, where any transaction whichhas the effect of transferring, or enabling the enjoymentof, any immovable property, would constitute transfer. —As defined under clause (d) of Section 269UA of the Act,theinteresttheaSSCSSEFEacquiredundertheMemorandum of Understanding would constitute animmovable property. Therefore, when the assesseetransferred this immovable property to the purchaser,what.considerationreceived1n exceSSoT Rs.5,90,00,000/- is the capital gains and therefore, he offered it for tax as such and both the AppellateAuthorities were justified in holding it as a capital gainand not as business income. Therefore, he submits thatno case for interference is made out. 8.|TheApexCourt1n theCaSE€ot G.Venkataswamti Naidu & Co. -vs- Commissioner of Income Taxreported in35 ITR 594(SC)while dealingwith the question whether an income derived from atransaction falls within the heading of “businessincome” or “capital gains” has held as under: “13. AS we have already observed it is impossibleto evolve any formula which can be applied indetermining the character of isolated transactionswhich come before the courts in tax proceedings.It would besides be inexpedient to make anyattempt to evolve such a rule or formula.Generally speaking, it would not be difficult todecide whether a given transaction is anadventure in the nature of trade or not. It is thecases on the border line that cause difficulty. If aperson invests money in land intending to hold it, 8.|TheApexCourt1n theCaSE€ot G.Venkataswamti Naidu & Co. -vs- Commissioner of Income Taxreported in35 ITR 594(SC)while dealingwith the question whether an income derived from atransaction falls within the heading of “businessincome” or “capital gains” has held as under: “13. AS we have already observed it is impossibleto evolve any formula which can be applied indetermining the character of isolated transactionswhich come before the courts in tax proceedings.It would besides be inexpedient to make anyattempt to evolve such a rule or formula.Generally speaking, it would not be difficult todecide whether a given transaction is anadventure in the nature of trade or not. It is thecases on the border line that cause difficulty. If aperson invests money in land intending to hold it, enjoys its income for some time, and then sells itat a profit, it would be a clear case of capitalaccretionandnotprofitderivedfromaT?adventure in the nature of trade. Cases ofrealisation of investments consisting of purchaseand resale, though profitable, are clearly outsidethe domain of adventures in the nature of trade.In deciding the character of such transactionsseveral factors are treated as relevant. Was thepurchaser, a trader and were the purchase of thecommodity and its resale allied to his usual tradeor business or incidental to itP Affirmativeanswers to these questions may furnish relevantdate for determining the character of thetransaction. What is the nature of the commoditypurchased and resold and in what quantity was)it purchased and resold? If the commoditypurchased is generally the subject-matter oftrade, and if it is purchased in very largequantities, itwould tend to eliminate thepossibilityofinvestmentfor|personalUSE,possession or enjoyment. Did the purchaser byany act subsequent to the purchase improve thequality of the commodity purchased and therebymade it more readily resaleable? What were theincidents associated with the purchase andresaleP Were they similar to the operations usually associated with trade or business? Arethe transactions of purchase and sale repeated?In regard to the purchase of the commodity andits subsequent possession by the purchaser, doesthe element of pride of possession come into thepicture? A person may purchase a piece of art,hold it for some time and tf a profitable offer isreceived may sell it. During the time that thepurchaser had its possession he may be able toclaimprideOf|possessionandaestheticsatisfaction; and tf such a claim is upheld thatwould be a factor against the contention that thetransaction is in the nature of trade. These andother considerations are set out and discussed injudicial decisions which deal with the character oftransactions alleged to be in the nature of trade.In considering these decisions, it would benecessary to remember that they do not purportto lay down any general or universal test. Thepresenceofall the.relevantcircumstances|mentioned in any of them may help the Court todraw a similar inference; but it is not a matter ofmerely counting the number of facts andcircumstances pro and con; what is important toconsider is their distinctive character. In eachcase, it is the total effect of all relevant factorsand circumstances that determines the character of the transaction; and so, though we mayattempt to derive some assistance from decisionsbearing on this point, we cannot seek to deduceany rule from them and mechanically apply it tothe facts before us. of the transaction; and so, though we mayattempt to derive some assistance from decisionsbearing on this point, we cannot seek to deduceany rule from them and mechanically apply it tothe facts before us. 14. In this connection, it would be relevant torefer to another test which is sometimes appliedin determining the character of the transaction.Was the purchase made with the intention toresell it at a profit? It is often said that atransaction of purchase followed by resale caneither be an investment or an adventure in thenature of trade. There is no middle course and nohalf-way house. This statement may be broadlytrue; and so some judicial decisions apply the testof the initial intention to resell in distinguishingadventuresinthe.natureoftradefromtransactionsofinvestment.Even.intheapplication of this test distinction will have to bemade between initial intention to resell at a profitwhich is present but not dominant or sole; inother words, cases do often arise where thepurchaser may be willing and may intend to sellthe property purchased at profit, but he wouldalso intend and be willing to hold and enjoy it f a’really high price is not offered. The intention to resell may in such cases be coupled with theintention to hold the property. Cases may,however, arise where the purchase has beenmade solely and exclusively with the intention toresell at a profit and the purchaser has nointention of holding the property for himself orotherwise enjoying or using it. The presence ofsuch an intention is no doubt a relevant factorand unless it is offset by the presence of otherfactors it would raise a strong presumption thatthe transaction is an adventure in the nature oftrade. Even so, the presumption ts not conclusive;and it is concewable that, on considering all thefacts and circumstances in the case, the courtmay, despite the said initial intention, be inclinedto hold that the transaction was not an adventurein the nature of trade. We thus come back to thesame position and that is that the decision aboutthe character of a transaction in the contextcannot be based solely on the application of anyabstract rule, principle or test and must in everycase depend upon all the relevant facts andcircumstances”. In the light of the above, our findings in the present case have to be based on the tacts and circumstances ot this case. It is in this context, we have to see thedocuments entered into between the parties, which arenot in dispute. They are the Memorandum of|Understanding dated 8[:/]June 1995, 2 letters executed|on that day by the owner in favour of the assessee, aMemorandum|oT|Understandingexecuted|by|theassessee in favour of the purchaser, Indian Society ofthe Church of Jesus Christ of Latter-day Saints andlastly the registered sale deed executed by the owneralong with the assessee in favour of the said purchaseron 10[:/]May 1999. The nature of transaction, the)intention of the parties, the consideration for which theagreements were entered into, and the profit derivedfrom such transaction had to be gathered from thesedocuments. QO Thefirstdocument1SmemorandumoT understanding dated 8.6.1995. In the preamble portionof this document, it is categorically stated that owner is QO Thefirstdocument1SmemorandumoT understanding dated 8.6.1995. In the preamble portionof this document, it is categorically stated that owner is desirous of disposing off the schedule property, howevershe is not residing in Bangalore nor she has anyinfrastructure for the purpose of identifying buyers. Sheis also not capable of identifying the purchasers.Therefore, she approached the assessee who has offeredto identify buyers for and on behalf of owner. Furtherclause 4 of the preamble states that the assessee beinga builder, having suitable office as well as man powerhas the necessary infrastructure for the purpose ofidentifying buyers at Bangalore. Therefore, theseclauses make it clear that the owner wanted a person toidentify a purchaser and the assessee offered to givethat assistance. Thus it is clear that the assessee was|neither interested in the property belonging to theowner nor he was interested in purchasing the property. —His role was to identify the purchaser for the owner. Inthis back ground, we have to look into the terms of theMOU. Clause (1) categorically states that owner agreesand appoints the assessee to be sole and exclusive person to identify buyers for the schedule property orportion thereof. However, the assessee paid a sum ofRs.5.5 Crores to the owner. The assessee was expectingmore than Rs.5.5 Crores from sale of the said property. —As at that point of time the Urban Land (Ceiling &Regulation) Act, 1976 was in force and the property was_more than Rs.o.5 Crores, the assessee agreed to obtainnecessary clearance for the said Act and it was his soleresponsibility. At that point of time, for completing ofsaletransaction,permissionoT|theIncomeTax|Department under Section 269 Urban Land (Ceiling &Regulation) Act, was also necessary. Therefore, a clausewas introduced stating the persons identified by theassessee should obtain the said clearance certificate|and the owner in no way responsible for the same andshe will only sign the requisite forms. The considerationotf Rs.5.5 Crores was a net consideration and theassessee has to bear the cost of stamp duty and legalcost relating to transfer of property. As the second. party will be incurring expenses for the purposes ofdeveloping and identifying buyers of the propertybelonging to the owner and that he has already paidRs.5.5 Crores, the consideration the owner was.expecting, it was made clear the right that is conferredunder the agreement is irrevocable. It was also madeclear that after the second party identifies the buyer, hewill be entitled to enter into any agreement arrangementto receive the sale consideration. It was agreed that anything received in excess of the amounts specified inClause (2) 1.e., Rs.65,50,00,000/- the said excessamount shall belong to the assessee. It was made clearthat the assessee has no right to call upon the owner toreturn Rs. Rs.5.5 Crores under any circumstances. Atthe same time, the owner has nothing to do with theprofits earned or loss incurred by the second party. Itwas also clearly understood that in the event of theassessee getting an amount of sale consideration less than Rs.5.5 Crores, the said loss should be to hisaccount and not to the account of the owner. 10. Therefore, from the aforesaid recitals, it isclear that from the day number one the assessee had nointention of purchasing this property, enjoy the propertyand holding the property for some time before even hecould think of selling the property. In other words, itwould not be an investment in the property for thepurpose of enjoying the property. The intention behindthis transaction is to sell the property at a higher pricethan what the assessee has paid to the owner and makeprofit out of it. If in the process, any loss has incurred,he cannot complain and he has to bear the loss. |Therefore, it is obvious that entire transaction is in the)nature of a trade and business where he may makeprofit or he may incur loss. Two letters written by theowner to the assessee handing over the property is toaccomplish the task of completing the sale transaction if the assessee is able to identify a buyer so that he couldalso deliver possession to them. — 11. After obtaining the aforesaid document, theassessee identified a buyer namely the Indian Society ofthe Church of Jesus Christ of Latter-Day-saints. TheaSSCSSEEhas|enteredintoamemorandum oT|understanding dated 19.2.1998 with the said buyer.The total consideration upon the sale of the property isRs.12,47,84,400/-. Out of the same, the assesseereceived a sum of Rs.5.5 Crores which he had paid tothe owner and Rs.6,97,84,400/- which is described asnomination/assignment|fee.Onexecutingthememorandum oT|understandingaSUTMot|Rs.3,73,359,320/- was paid and 45 days was the periodprescribed for completing the sale transaction. Afterentering into such agreement, a registered sale deedcame to be executed on 10.5.1999 both by the owner as.well as the assessee in favour of said buyer. In the sale deed, it is recited that in the memorandum ofunderstanding dated 8.6.1995 the owner appointed theassessee who was a confirming party to be the sole andexclusive person to identify buyers for the aforesaidproperty for a total sale transaction of Rs.5,50,000/-—and the assessee has since paid the above sum to thevendor. Further it is averred that the assessee has|identified the purchaser and an agreement of sale dated30.6.1998 was entered into and the purchaser got topurchasethepropertyfor.aconsiderationoT|Rs.11,87,00,776/-. The assessee also acknowledged aSUIToT|Rs.3,96,10,217/-aS|advancepayment.Therefore, through out the transaction culminating inthe sale of the property in favour of the purchaser, therole of the assessee is that of a person identifying abuyer and for the services rendered by him, he isentitled to receive any amount received by him in excess|of Rs.5.5 Crores. 12. As it is clear from the aforesaid judgment ofthe Apex Court that if a person invests money in a landintending to hold it, enjoys its income for some time andthen sells it at a profit, it is clear case of capitalaccretion and not a profit derived from an adventure inthe nature of trade. The test of initial intention to reselldistinguishes the adventures in the nature of trade fromthe transactions of investment. The presence of suchan intention is a relevant factor. Unless it is offset bythe presence of other factors, it would raise a strongpresumption that the transaction is an adventure in thenature oft trade. 13. Yet another factor to be taken note of iswhether, the assessee by an act subsequent to enteringinto memorandum of understanding did anything toimprove the quality of the land, or did he enjoy theproperty at any point of time, or did he make anyappreciations? If we look at the transaction, keeping in mind the aforesaid factors, it is clear that the initialintentionoT enteringintoamemorandumoT understanding is to resale the property to a higher priceand make profit out of it. He had no intention to enjoythe property or develop the property and the intention tosell is not after such enjoyment. There is no element ofpride of possession exhibited by him in the transaction. —Therefore, it is a case of an adventure in the nature oftrade. 14. It is contended that the case talls undersection 2(47)(vi) of the Income Tax Act, 1961 whichreads as under:| “2(47) “transfer in relation to a capitalasset, includes, © (vi) any transaction (whether by way ofbecoming a member of, or acquiring shares in,a co-operative society, company or_ otherassociation of persons or by way of any|agreement or any arrangement or in any| other manner whatsoever) which has the|effectof|transferring,OT.enablingtheenjoyment of, any immovable property.” 14. It is contended that the case talls undersection 2(47)(vi) of the Income Tax Act, 1961 whichreads as under:| “2(47) “transfer in relation to a capitalasset, includes, © (vi) any transaction (whether by way ofbecoming a member of, or acquiring shares in,a co-operative society, company or_ otherassociation of persons or by way of any|agreement or any arrangement or in any| other manner whatsoever) which has the|effectof|transferring,OT.enablingtheenjoyment of, any immovable property.” lo. A careful reading of the aforesaid provisionmakes it clear that though the memorandum ofunderstanding entered into between the owner and theassessee iS not an agreement of sale for transfer of acapital asset and it is not stamped or registered, anytransaction which has the effect of transferring orenabling the enjoyment of any immovable property inthe nature of a capital asset would fall within thedefinition of transfer and therefore the consideration|they seek for such transfer constitutes capital gains. Inthe hands of the owner the property, it is a capitalasset. Then the amount of Rs.5.5 Crores received underthe document by the owner would be lable to tax ascapital gains. Now the question before the court is notwhether the Rs.95.5 Crores constitutes capital gains or not. The question is whether over and above Rs.5.5—Crores paid by the purchaser to the assessee wouldconstitute capital gain. In that context, in the instantcase, it is clear that the assessee had no intention to)acquire a capital asset in lieu of transfer. His intentionwas only to identify a buyer for the property to bringabout a sale transaction and any amount paid in excess|of Rs.5.5 Crores is his profit minus the expenditurewhich he has incurred. It is clear from the recitals in |the memorandum of understanding that even if theassessee is not able to get the purchaser who is willingto pay Rs.9.9 Crores 50,000/- and pays less, the loss isto the account of the assessee. Only in the event of thepurchaser is willing to pay more than Rs.95.5 Crores,that profit is his. Therefore, the transaction wasentered into with a sole intention of making profits andgains from the aforesaid transaction and as such do notfall within the definition of capital gains. The assesseedid not hold the capital asset. He did not transfer the capital asset, he only facilitated the transfer of capitalasset from the owner to the purchaser. He took therisk. He identified the purchaser. Any amount paid inexcess of Rs.5.5 Crores which the owner was expectingfrom the transaction was his margin of profit. 16. The entire approach of the lower authorities iscontrary to the material available on record and notSupported by any legal evidence as such it cannot besustained. 17. Hence, we pass the following: ORD ER (a) The appeal is allowed. (b) The substantial question of law is answered infavour of the revenue and against the assessee. (c) The impugned order is set aside and the order passed by the assessing authority is restored. (d) Parties to bear their own costs. | $0%��/0�43:/>7;:@�5/4<<�=;10�0880A:�:>�:/;5�>7907�48:07� 4�607;>9�>8�J�B>2:/5�87>B�:/0�94:0�>8�70A0;6:�>8�A>6@�>8�:/;5�>7907��� ���- �(���-N� ����� ������ ����� ������