TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 710
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....t appreciating the fact that these proceeds are exempt from tax. 2.1 At the time of hearing, the learned AR not pressed this ground. Accordingly, this ground is dismissed as not pressed. 2.2 In the result, ITA No. 734/Hyd/2013 is dismissed. ITA No. 735/Hyd/2013 (A.Y. 2005-06) 3. The assessee raised the ground in this appeal that the CIT(A) erred in upholding the addition of Rs. 40,88,065 representing the capital gains arising out of giving his land for development without appreciating the fact that the assessee has already offered the same to tax in different years as and when the properties were sold. 3.1 Brief facts of the issue are that the assessee, a coowner along with others, entered into a Development Agreement-cum-GPA on 16.9.2004 with M/s. R.V. Nirman Pvt. Ltd., in respect of land admeasuring two acres situated at Sy. No. 212, Madinaguda village, Serilingampally Mandal, Hyderabad. The resultant capital gain was offered for tax in the regular returns and in the return filed u/s. 153A of Income-tax Act, 1961 for A.Ys. 2006-07 and 2007-08 on the basis of handing over of possession and sale effected. According to the lower authorities, the transfer took place on 16.9.2004....
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.... Paper Book No. 121 and 122 for A.Y. 2007- 08, for A.Y. 2008-09 123-126. 29. Further, the AR also brought on record the order u/s. 171 of the Act in the case of Ch. Malla Reddy, Ch. Narasimha Reddy and Sri C. Gopal Reddy dated 28.2.2003 vide partition deed dated 31.8.1988 which is kept on record at Paper Book No. 296. He also brought on record another order u/s. 171 dated 28.3.2000 in the case of Ch. Malla Reddy, K. Mahender Reddy, K. Bhadra Reddy vide partition deed dated 31.8.1988. It is also brought on record by the assessee that the return of income filed by the assessee as a HUF in the following assessment year: (a) Ch. Malla Reddy HUF AY 1999-00 and 2001-02; Paper Book p. 298 to 304 (b) Ch. Bhadra Reddy HUF AY 2001-02 and 2002-03; Paper Book p. 305-310. (c) Ch. Mahender Reddy, AY 2003-04 and 2002-03; Paper Book p. 321 to 327. 30. Thus, the learned AR submitted that the statement made by the assessee in the statement of facts with regard to property owned by the assessee individual is an error. There is ample evidence on record to suggest that the property was owned by the HUF and capital gain arising out of transfer of the said capital asset was offered to tax by HUF in ....
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....nst the person responsible for making the payment. It is, therefore, quite apparent that the Act itself provides for payment of tax in this manner by the assessee. The Act also enjoins upon the assessee the duty to file a return of income disclosing his true income. On the basis of the income so disclosed, the assessee is required to make a self-assessment and to compute the tax payable on such income and to pay the same in the manner provided by the Act. Thus the filing of return and the payment of tax thereon computed at the prescribed rates amounts to an admission of tax liability which the assessee admits to have incurred in accordance with the provisions of the Finance Act and the Income Tax Act. Both the quantum of tax payable and its mode of recovery are authorized by law. The liability to pay income tax chargeable under section 4(1) of the Act thus, does not depend on the assessment being made. As soon as the Finance Act prescribes the rate or rates for any assessment year, the liability to pay the tax arises. The assessee is himself required to compute his total income and pay the income tax thereon which involves a process of self-assessment. Since all this is done under ....
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....in the year in which development agreement has been entered into between the owner and the developer, considering the fact that in many cases, the development agreement was not acted upon by the developer, different views have to be expressed, as to the year of assessability, based on the facts and circumstances of each case. This position has been examined at length in the light of caselaw on the point, in the case of Smt. K. Radhika and others (supra) and it was ultimately held by the coordinate bench of this Tribunal as follows- "48. We are in considered agreement with the views so expressed in this commentary on the provisions of the Transfer of Property Act. It is thus clear that 'willingness to perform' for the purposes of Section 53A is something more than a statement of intent; it is the unqualified and unconditional willingness on the part of the vendee to perform its obligations. Unless the party has performed or is willing to perform its obligations under the contract, and in the same sequence in which these are to be performed, it cannot be said that the provisions of Section 53A of the Transfer of Property Act will come into play on the facts of that case. It ....
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....ion was incurred by the builder/developer. Hence it is to be inferred that no amount of investment by the developer in the construction activity during the assessment year in this project and it would amount to non-incurring of required cost of acquisition by the developer. In the assessment year under consideration, it is not possible to say whether the developer prepared to carry out those parts of the agreement to their logical end. The developer in this assessment year had not shown its readiness or having made preparation for the compliance of the agreement. The developer has not taken steps to make it eligible to undertake the performance of the agreement which are the primary ingredient that make a person eligible and entitled to make the construction. The act and conduct of the developer in this assessment year shows that it had violated essential terms of the agreement which tend to subvert the relationship established by the development agreement. Being so, it was clear that in the year under consideration, there was no transfer of not only the flats as superstructure but also the proportionate land by the assessee under the joint development agreement. As per clause no. ....
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.... obligations in this previous year relevant to the present assessment year, it is only a corollary to this finding that the development agreement dt. 11.5.2005 based on which the impugned taxability of capital gain is imposed by the AO and upheld by the CIT(A), cannot be said to be a "contract of the nature referred to in Section 53A of the Transfer of Property Act" and, accordingly, provisions of Section 2(47)(v) cannot be invoked on the facts of this case Chaturbhuj Dwarkadas Kapadia v. CIT's case (supra) undoubtedly lays down a proposition which, more often than not, favours the Revenue, but, on the facts of this case, the said judgment supports the case of the assessee inasmuch as 'willingness to perform' has been specifically recognized as one of the essential ingredients to cover a transaction by the scope of Section 53A of the Transfer of Property Act. Revenue does not get any assistance from this judicial precedent. The very foundation of Revenue's case is thus devoid of legally sustainable basis. 50. That is clearly an erroneous assumption, and an the provisions of deemed transfer under Section 2(47)(v) could not have been invoked on the facts of the prese....
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....ement executed on 18.10.2007). That being so, it is only upon receipt of such consideration in the form of developed area by the assessee in terms of the development agreement, the capital gains becomes assessable in the hands of the assessee. We are supported in this behalf by the decision of the Third Member Bench of the Tribunal in the case of Vijaya Productions Pvt. Ltd. V/s. Addl. CIT (134 ITD 19) (TM). 11. Even though the assessee in terms of recital on page 2 of the supplementary agreement dated 3rd February, 2006, was to receive 'a refundable deposit of Rs. 2,00,00,016, through two cheques, the said deposit was to be refunded on the complete handing over of the area falling to the share of the first party, viz. the assessee; and in the event of failure on the part of the assessee in refunding such deposit, the same shall be adjusted at the time of final delivery, by the developer against the area to be handed over to the assessee applying a mutually agreeable rate. Considering these specific clauses and peculiar facts and circumstances of the case, we are of the considered view that the capital gains in the case on hand, are liable to be taxed only in the year, in which th....
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....s assessment year. Once we come to the conclusion that the transferee's 'willing to perform' the contract is ascertainable in the assessment year, as stipulated by and within the meanings assigned to this expression under Section 53A of the Transfer of Property Act, its contractual obligations in this previous year relevant to the present assessment year, it is only a corollary to this finding that the Development Agreement dt. 15.12.2006, based on which the impugned taxability of capital gain is imposed by the AO and upheld by the CIT(A), cannot be said to be a "contract of the nature referred to in Section 53A of the Transfer of Property Act" and, accordingly, provisions of Section 2(47)(v) cannot be invoked on the facts of this case. The judgement in the case of Chaturbhuj Dwarkadas Kapadia v. CIT (supra) undoubtedly lays down a proposition which, more often that not, favours the Revenue, but, on the facts of this case, the said judgment supports the case of the assessee inasmuch as 'willingness to perform' has been specifically recognized as one of the essential ingredients to cover a transaction by the scope of Section 53A of the Transfer of Property Act. T....
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....not handed over by the assessee to the developer. It has further been found that the agreement only permitted the development to be carried out by the developer. It has been found that the entire control over the property was, in fact, with the assessee inasmuch as the licence to construct the property was also in the name of the assessee. It was, therefore, found that execution of the agreement could not amount to transfer as contemplated u/s. 53A of the Transfer of Property Act. 3.6 Following the same ratio laid down by the above judgements, we are inclined to allow the ground taken by the assessee. 4. The assessee raised an additional ground in this appeal that the CIT(A) is not justified in not directing the AO to delete the income from capital gains, admitted by the assessee for A.Ys. 2006-07 and 2007-08, since the same income was held to be assessed in the A.Y. 2005-06. 4.1 The assessee also filed a petition for admission of the additional ground stating that the additional ground is purely on legal issue and no investigation of facts is required as the facts are already available on record. The AR also placed reliance on the judgment of Gujarat High Court in the case of S....
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....over vacant and peaceful possession of the entire land to the developer, the Assessing Officer opined that the said agreement, as per the provisions of sec. 2(47)(v), constituted a transfer. He noted that in several judicial pronouncements, it has been held that any transaction which allows the possession to be taken would constitute transfer within the meaning of sec. 2(47); and that any transaction which involves a transfer of title in future or exchange of a property to be put up in future, would necessarily constitute a "transfer", within the meaning of sec. 2(47)(v) of the Act. For this proposition, he relied on the decision of the Tribunal in the case of Smt. Shantha Vidya Sagar Annam vs. ITO (ITA No. 885/Hyd/2003, dated 9-6-2006). Besides, he also referred to their decision in the case of Dr. Maya Shenoy [124 TTJ (Hyd) 692], holding that the Development Agreement has the effect of transferring the land from the owner to the developer. The Assessing Officer also relied on the decisions in the cases of Chaturbhuj Dwarakadas Kapadia vs. CIT (260 ITR 491) (Bom) and Jasbir Singh Sarkaria (2007 294 ITR 196 AAR). Accordingly, he opined that in the instant case also, the assessee wa....
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....entioned decision, it is a fact that the builder/developer cannot start any construction, unless physical possession of the land is handed over to him. The assessee has admitted that by way of the said agreement, the developer had been authorized to enter upon the scheduled property and develop the same. The very mention of this fact shows that possession of the property was indeed given on the said date itself as otherwise, the developers could not have any right to enter into the property itself. The Tribunal, Hyderabad Bench also in the case of Krishna Kumar D Shah (HUF) vs. DCIT (ITA Nos. 1164 to 1167 of 2010 dated 12-7-2012) have opined that the possession need not be necessarily sole and exclusive possession, so long as the transferee is enabled to exercise general control over property and to make use of it for the intended purpose. Therefore, the CIT(A) did not find any merit in the contention of the assessee that the Development Agreement amounted to only an empty permission to enter the property and carry on construction. 7.6 The CIT(A) further observed that even if the developers subsequently did not even obtain any approvals from the Local Authorities or undertook any ....
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....rom the Local Authorities and even if there was a grace period of six months only therein, it is clear that the said agreement did not stipulate that in the case of delay exceeding such time limits, the Development Agreement would be deemed as cancelled or abandoned. The AR of the assessee contended before the CIT(A) that the case laws cited by the Assessing Officer are not applicable, as in those cases, possession of property had been passed on to the developer and the properties were ultimately transferred by way of sale deeds, which is not existing in the present case. However, it is clear that handing over of possession is undisputed in the instant case also. As regards the ultimate transfer of properties, it is clear that till the time the impugned Development Agreement is itself rescinded, the assessee and others continue to have an enforceable right to receive the consideration as stipulated therein. 7.9 The CIT(A) observed that the reliance of the AR of the assessee in the case of K. Radhika vs. DCIT [149 TTJ (Hyd) 736], it was held that handing over of possession is only one of the conditions u/s. 53A of the Transfer of Property Act, it is necessary to go into whether the....
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....of the Act has been fulfilled. Being so, taking a consistent view, we are inclined to allow this ground of the assessee. 7.12 In the result, ITA No. 737/Hyd/2013 is allowed. ITA No. 738/Hyd/2013 (A.Y. 2009-10) 8. In this appeal, the assessee raised the ground that the CIT(A) erred in not giving full relief for the value of gold and jewellery held by the family members of the assessee. 8.1 Brief facts of the case are that the only issue in the A.Y. 2009-10 relates to the addition of Rs. 17,47,512 towards unaccounted jewellery. During the course of search proceedings, jewellery of the said value, weighing 1336.6 g was found from the residence of the assessee, which was admitted as belonging to the assessee himself, his wife, elder daughter and daughter in law. However, the assessee could not substantiate such claim with proper evidence and the investment in gold jewellery was not properly explained. During the course of assessment proceedings, the assessee was once again given an opportunity to substantiate his claim. However, no evidence could be furnished to substantiate the source of acquisition. On the other hand, the Assessing Officer noticed that there were no entries/items....
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....sees to wealth tax. However, considering the fact that the assessee hails from a socially well-off family and it is customary in the state of Andhra Pradesh to receive reasonable amount of jewellery at the time of marriage and other social functions, he was of the considered view that full benefit of the said Instruction can be given to the wife of the assessee, holding 500 g of gold jewellery as explained on this account. As regards the assessee himself, in view of these factors, benefit of 100 g can be given in his own case also. So far as the daughter of the assessee is concerned, no evidence in respect of specific acquisition of gold jewellery out of any sources in her case has been produced at any stage. Accordingly, even if benefit of the said Instruction was given in her aspect also in the course of search, no such benefit could have been given at the assessment stage. Likewise, in the case of the daughter-in-law of the assessee also, no evidence regarding any acquisition of gold jewellery by her could ever be produced. The assessee has not even proved the social standing of her parents so as to give full benefit of the limits as per the said Instruction in her case. However....
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....ins arising out of giving the land for development without appreciating the fact that the assessees have already offered the same to tax in different years as and when the properties were sold. 9.1 For the sake of brevity, as the facts are similar in both the appeals, we consider the facts as in ITA No. 739/Hyd/2013 in the case of M/s. G. Narasimha Yadav (HUF). During the course of search a Development Agreement cum GPA was found and seized at Page No. 76 to 90 of Annexure A/GNY/RES/PO/01 from the premises of the assessee. The same had been executed by the assessee and others, along with their family members, in favour of M/s. R.V. Nirman Pvt. Ltd on 16-9-2004 and possession of the impugned land had been handed over to the developer for construction of residential units. The Assessing Officer noticed that the land owners possessed Ac. 2.00 Gts. of land in survey No. 212 (part), situated at Madinaguda village, Serilingampally Mandal since 20-9- 2001. The individual share holdings of 7 owners of the said land were 10 Gts. each while Smt. Sakuntala Yadav and the assessee HUF owned 5 Gts. each. All of the same was given for development. The land owners and developers were entitled to ....
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....ase of Dr. Maya Shenoy (supra), which has been consistently followed by them in their subsequent decisions, there was indeed a "transfer" as contemplated u/s. 2(47)(v) of the Act read with the provisions of sec. 53A of Transfer of Property Act, 1882. 9.4 The CIT(A) observed that it is clear that the view taken by the Tribunal finds support from the view of the Hon'ble Bombay High Court in the case of Chaturbhuj Dwarakadas Kapadia (supra) and also by the Hon'ble Authority for Advance Ruling in the case of Jasbir Singh Sarkaria (supra). Besides, it is seen that the Hon'ble ITAT, Cochin Bench, in their relatively recent decision dated 28-9-2012 in the case of G. Sreenivasan (supra) have also expressed a similar view after referring to the above mentioned decision of the Hon'ble Bombay High Court Accordingly, following the above mentioned judicial pronouncements, it is clear that since the assessee and others had entered into the above referred Development Agreement on 16-9-2004 and had also given possession of land for construction of residential units thereon, on the said date itself, the capital gains arising from such transfer was indeed chargeable to tax in the as....
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....eme of taxation as it is a well settled proposition of law that tax can be levied in a particular assessment year only in respect of the income assessable in that year. It has also been opined that it is neither the prerogative of the assessee nor of the Assessing Officer to offer/assess the income of a particular year in any other year. Since the capital gains from the above referred Development Agreement was rightly taxable in the assessment year 2005-06, the fact of assessee's offering such income in any other year cannot alter this position. Accordingly, this plea of the assessee is also not accepted and the capital gain is held as rightly brought to. tax in the assessment year 2005-06. Against this the assessees are in appeal before us. 9.8 We have heard both the parties and perused the material on record. Similar issue came up for adjudication in ITA No. 735/Hyd/2013 in earlier paras 3.2 to 3.6 of this order in the case of Sri G. Narasimha Yadav. Following the same ratio and taking a consistent view, we are inclined to allow this ground in both the appeals. 9.9 The assessee raised an additional ground in this appeal that the CIT(A) is not justified in not directing the ....
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.... another sale deed of the same date executed by the same vendor in favour of the assessee and his family for agricultural land admeasuring Ac. 12.08 Gts. at the same survey number for Rs. 3,93,500/- only. In his statement recorded u/s. 132( 4) on the day of search, the assessee stated that the above lands were purchased from the vendors for Rs. 70 lakhs and the amount paid as per registration was Rs. 8,92,000/- through cheque, while the remaining amount was paid in cash. Subsequently, however, the assessee retracted from the above statement in his sworn deposition dated 17-11-2008 and claimed that the land was purchased for Rs. 8,92,000 only out of his regular sources of income. During the course of assessment proceedings, the assessee was once again given an opportunity to explain the fact. However, it was reiterated that the same was purchased for Rs. 8,92,000 only. 11.2 From the statement u/s. 132(4), which was recorded in the local language, viz., Telugu only, the Assessing Officer observed that while giving the details of immovable properties owned by him and his family, the assessee had clearly stated that they had purchased 35 acres of land at the cost of Rs. 2 lakhs per ac....
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....ee filed a letter dated 15.12.2010 ad stated that the consideration paid was only Rs. 8.92 lakhs. There was no other evidence other than the statement recorded u/s. 132(4) of the Act. The Department also examined the vendor who has also confirmed that the consideration received is Rs. 8.92 lakhs only. The assessee, in this case, is aged about 70 years. In our opinion, the pattern of answering giving minute details with cheque numbers at the odd hours of the day by a person of 70 years old is itself unusual and it cannot be considered as conclusive evidence. The addition cannot be made on presumptive basis. In the case of Smt. Suseela Suresh Malge vs. ACIT (55 SOT 45) (UR) (Mum) it is held that addition made by the AO on the basis of statement recorded u/s. 132(4) alone is not justified, unless there is corroborative evidence linking the statement with undisclosed income. 11.5 Being so, in our opinion, the addition cannot be confirmed in the absence of corroborative evidence. Accordingly, the addition is deleted. 11.6 In the result, ITA No. 742/Hyd/2013 is allowed. ITA No. 743/Hyd/2013 (A.Y. 2007-08) 12. The assessee in this appeal raised the ground that the CIT(A) erred in upho....
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....ddy & Chamakura Mallareddy as per the Agreement and got registered the land of Acre 7-39 gts. at Velluru Village. This registration is with my son Shri G. Suresh Yadav. Linking both the replies, we got a clear picture. The assessee purchased a land for Rs. 87,50,000. The sources were that form the sale of plot for a consideration of Rs. 87,00,000." 12.3 The AR submitted that the sale proceeds of Rs. 87 lakhs separately brought to tax as capital gain in A.Y. 2008-09 may be telescoped as sources for the acquisition of property referred to the A.Y. 2007-08. The source and application both cannot be considered for taxation at the same time. Consequently the addition of Rs. 87,72,500 made in A.Y. 2007-08 may be deleted. 12.4 As discussed in earlier para in ITA No. 742/Hyd/ 2013, herein also the addition is made on the basis of a statement recorded from the assessee u/s. 132(4) of the Act. In our opinion, the statement recorded u/s. 132(4) alone cannot be a basis for addition in the absence of corroborative material. Following the above ratio and taking a consistent view, we are inclined to delete the addition placing reliance in earlier para in ITA No. 742/ Hyd/2013. This ground is a....
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....ordingly, he obtained the cost of the property as on 1-4-1981 from the SRO @ Rs. 12/- per sq. yard, whereby the indexed cost of acquisition came to Rs. 23,693/- and the capital gains were worked out at Rs. 86,76,307/-. Though the assessee had offered capital gain of Rs. 2,50,900/- in the assessment year 2009-10, he concluded that capital gains of Rs. 86,76,307/- were to be taxed in the assessment year 2008-09. 13.3 On appeal the CIT(A) observed that in respect of sale of Bowenpalli land also, the assessee in the statement recorded u/s. 132(4) on 7-8-2008, had admitted having sold the said land for Rs. 87 lakhs as against the recorded consideration of Rs. 32,22,000/- only. Subsequently, he retracted from such admission on the ground of confusion at the time of recording of statement, despite the fact that capital gains of Rs. 25,05,700/- had been admitted by him earlier. However, it is clear that in view of discussion in para 6 above, such retraction cannot be accepted as true and correct, in view of the fact that the subsequent claim is not supported by any corroborating evidence. The mere mistake in stating the month of sale being April 2008 cannot establish that the above statem....
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..... Nirman Pvt. Ltd on 16-9-2004 and possession of the impugned land had been handed over to the developer for construction of residential units. The Assessing Officer noticed that the land owners possessed Ac. 2.00 Gts. of land in survey No. 212 (part), situated at Madinaguda village, Serilingampally Mandal since 20-9-2001. The individual share holdings of 7 owners of the said land were 10 Gts. each while Smt. Sakuntala Yadav and Narasimha Yadav (HUF) owned 5 Gts. each. All of the same was given for development. The land owners and developers were entitled to 36% and 64% of the built up area, including parking and terrace, whereas the total constructed space as per the Development Agreement was shown at 70,000 square feet. 15.2 The CIT(A) by placing reliance on the order of the Tribunal in the case of Dr. Maya Shenoy (cited supra) confirmed the addition. Against this the assessee is in appeal before us. 15.3 We have decided similar issue in paras 3.2 to 3.6 in ITA No. 735/Hyd/2013 wherein we have allowed the claim of the assessee. Accordingly, in the instant case, there was no development activity by the developer. We cannot say the condition laid down u/s. 2(47)(v) of the Act has....
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....d the developer was 33.33% and 66.67%. Possession of the land had been handed over to the developer for construction of residential units. 16.2 Since in terms of the above said Development Agreement cum GPA dated 28-3-2007, the land owners had handed over vacant and peaceful possession of the entire land to the developer, the Assessing Officer opined that the said agreement, as per the provisions of sec. 2(47)(v), constituted a transfer. He noted that in several judicial pronouncements, it has been held that any transaction which allows the possession to be taken would constitute "transfer" within the meaning of sec. 2(47): and that any transaction which involves a transfer of title in future or exchange of a property to be put up in future, would necessarily constitute a "transfer", within the meaning of sec. 2(47). For this proposition, he relied on the decision of Tribunal in the case of Smt. Shantha Vidya Sagar Annam (cited supra). Besides, he also referred to their decision in the case of Dr. Maya Shenoy (cited supra), holding that the Development Agreement has the effect of transferring the land from the owner to the developer. The Assessing Officer also relied on the decisi....
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.... the lands already owned by him, the assessee along with others, had purchased the impugned agricultural lands on 22-12-1994, which were sold to Vaishnoi Infratech & Developers Pvt. Ltd and Shri V. Bhaskar on 4-2-2009. The Authorised Representative submitted that the said lands were situated at Pet Basheerabad, Qutubullapur Mandal, R.R. district and were beyond the limits of any town, municipality with a population exceeding 10,000 or the limit notified within 8 kilometres from any such town or municipality and as such did not fall under the definition of capital asset. The CIT(A) confirmed the order of the AO. Against this, the assessee is in appeal before us. 17.3 The assessee's primary contention is that the property is an agricultural land and is situated at beyond 8 km from any notified municipality which fact is supported by VRO's letter placed at Paper Book page Nos. 78 to 79. The AR also submitted that the assessee is offering agricultural income in its regular return of income and also proceedings u/s. 153A. He submitted that though the assessee filed additional evidence before the CIT(A), he has failed to admit the same stating that these are additional evidences....
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....iew of section 2(14)(iii) either under sub clause (a) or (b) of the Act, hence the same cannot be considered as capital asset within the meaning of this section. Hence, no capital gain tax can be charged on the sale transaction of this land entered by the assessee. This is supported by the order of Kolkata Bench of this Tribunal in the case of Arijit Mitra (cited supra), Harish V. Milani (supra) and M.S. Srinivas Naicker vs. ITO (292 ITR 481) (Mad). By borrowing the meaning from the above section, we are not able to appreciate that the land falls within the territorial limit of any municipality without notification of Central Government as held by the Karnataka High Court in the case of Madhukumar N. (HUF) (cited supra). 10.23 From the facts and circumstances of the case, as narrated before us, it is important to note that what was the intention of the assessees at the time of acquiring the land or interval action by the assessee between the period from purchase and sale of the land and the relevant improvement/development taken place during this time is relevant for deciding the issue whether transaction was in the nature of trade. Though intention subsequently formed may be take....