I.T.A. NO.291/1,13 OF 1988-89 VS I.T.A. NO.291/1,13 OF 1988-89
1997 P T D (Trib.) 73
[Income-tax Appellate Tribunal Pakistan]
Before S.M. Sibtain, Accountant Member, Syed Safdar Hussain Shah Bokhari, Judicial Member
I.T.A. No. 405/HQ of 1988-89, decided on 30/05/1996.
Income Tax Ordinance (XXXI of 1979)--
----Ss. 2(11) & 22----Adventure in the nature of trade---Addition---Assessed a Director of a company dealing in the business of construction---Mere circumstance that a property was purchased by assessee in the hope that it would be sold at a profit at a later date was not enough to hold that it was a venture in the nature of trade-V Unless a nexus was found between the personal activities of a Director of a company and the business activities of the company in which assessee was a Director, no adverse inferences could be justifiably drawn in case of such an assessee.
Frough Naseem for Appellant.
Qamaruddin, D.R. for Respondent.
Date of hearing: 11th April, 1996.
ORDER
The main objection of the assessee in this appeal is to the upholding of the finding of the learned D.C.I.T. that the sale of the plot of land bearing No.E-10/11., 4th Street, Phase IV, D.H.S. Karachi, measuring 909.589 yds. is a venture in the nature of trade and further objection is taken to the upholding of the estimate of sale price instead of accepting the declared sale price by the learned D.C.I.T.
We have `heard Mr. Farough Naseem, the learned counsel of the appellant and Mr. Qamaruddin, the learned D.R. The consideration prevailing over the learned D.C.I.T. to treat the deal as a venture in the nature of trade in his own words are, "the assessee is a director in Private Limited Company which deals in the business of construction. Dealings in real estate by the director of such companies are quite distinguishable from dealings of other ordinary individuals. Dealings in real estate by such persons in their individual capacity are, in fact, governed by the motive of profit making. Examination of case records of the assessee revealed that in the past the assessee disposed of Banglow No.3, Latifabad. Hyderabad. Property No.47 (address of the property has not been mentioned) and Plot No.D-90, Kehkeshan, Karachi. Transactions enumerated hereinabove indicate a systematic pursuance of an organized business activity".
The learned CIT(A) has upheld the action.
Mr. Naseem Farough has submitted before us that the appellant, who was settled in Hyderabad, is being assessed since 1955-56. The position of properties purchased and sold by him ever since he is an assessee as submitted by him and confirmed by the learned D.R. 'is reproduced hereunder:
| S.No. | Description of Property | Date ofPurchase | Date of Sale |
| 1. | 13-A Unit 3 Latifabad Hyderabad | 7-5-1963 | 30-6-1972 |
| 2. | Plot No.47-A Phase V D. H. A | 28-7-1972 | 3-5-1976 |
| 3. | D-90 Kehkeshan | 6-11-1975?????? | 27-2-1979 |
| 4. | Plot No. E-10/114th Gizri Street Phase IV D.H.A. | 26-9-1975 | 29-12-1986 |
According to the learned counsel it is evident from the foregoing transactions that the appellant who was living in his house in Hyderabad since 1963 sold it when he shifted to Karachi in 1972 and purchased 8 plot of land in Karachi around the same time. He purchased another two plots of land in 1975, out of his savings, with the intention to provide an abode to his sons. However, soon thereafter, he had to dispose of two plots of land to meet other contingencies in 1976 and 1979. The plot of land which is subject-matter of this appeal was, however, retained till 1986 when he was impelled and compelled to sell it in order to meet the huge tax demands of the Department in an arbitrary manner. Thus it is evident that the deal which has been treated by the learned D.C.I.T. as a venture in the nature of trade bears not a single characteristic of a trading venture. Mr. Farough submits that a transaction of purchase with a view to settle one's off springs or even to invest one's own savings and the sale thereof after a period of 11 years since its purchase, and after a period of 7 years since the last transaction of sale of this nature, under the aforementioned compulsions can by no stretch of imagination be considered a venture in the nature of trade. It .is further submitted that immovable property has been purchased by the appellant since November' 1975. He contends that the indications of a systematic pursuance of an organized business activity found by the learned D.C.I.T. and upheld by the learned C.I.T.(A) in the foregoing transactions are hardly discernible from the any angle. Since it is an isolated transaction the learned D.C.I.T. has failed to discharge' his ones that isolated transaction constitutes an adventure in the nature of trade as held in 1984 PTD (Trib.) 127. Further since the learned D.C.I.T. has failed to place by evidence on record that the transaction is motivated by profit or to controvert the facts stated about the circumstances of purchase and sale of the plot of land in question, the learned counsel contends that it is not a trading venture. He further submits that the fact that the appellant is a director of a company dealing in construction has no bearing on the purchase or sale of the particular plot of land because it is purely his personal act. Further, it has no characteristic of construction business because the appellant has made no construction on the plot. The learned D.R. on the other hand supports the two impugned orders but he has not been able to lead us to ally specific finding of any of the two officers below to support their generalized in simulations and unfounded conclusions that "the transactions enumerated hereinabove indicate a systematic pursuance of an organized business activity". On the contrary we are inclined to agree with the learned counsel that the learned D.C.I.T. has not recorded in his order even the mere number of transactions of real estate made by the appellant in his lifetime. Vie further agree with him that one would not find any alleged systematic pursuance of an organized business activity from the few and far-fetched transactions in appellant's lifetime. We would further like to record here that there is an abundance of judicial pronouncement of superior Courts that a mere circumstance that a property is purchased in the hope that it would be sold at a profit at a later date is not enough to hold that it is a venture in the nature of trade. Similarly, it has been consistently held that unless a nexus is found between the personal activities of a Director of a company and the business activities of the Company in which one is a Director no inferences are justified to be drawn on the pattern done in the instant case.
Accordingly, we hold that the sale of the plot of land ibid has no characteristic of a venture in the nature of trade and the addition of Rs. 5,05,246 to appellants income on this account is unsustainable; hence deleted.
The appeal is allowed.
M.B.A./224/T????????????????????????????????????????????????? ??????????????????????????????????? Appeal allowed.