2002 (7) TMI 68

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.... " (a) Whether, the Income-tax Appellate Tribunal was correct in law in treating the amount of Rs. 7,58,250, being the profit made by the assessee on sale of apartments, as long-term capital gain? (b) Whether, the Income-tax Appellate Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) and thereby holding that the profit was accrued to the assessee on sale of portion of land on which the flats are constructed and not on account of cost of construction, where there was a single agreement for sale of flats? (c) Whether, the Income-tax Appellate Tribunal was correct in law in upholding the observation made by the Commissioner of Income-tax (Appeals) that the transaction of sale of flats was not in....

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....tained a clause that the allottees shall construct a residential house on the said plot within two years of the allotment. However, they could apply for extension of time for completing the construction. From time to time the assessee applied for extension of time for completing the construction and, ultimately, in the year 1989 decided to construct six flats on the said plot. To meet the cost of construction, the assessee and his brother entered into agreements to sell in respect of four flats and retained the remaining two for their own use. Permission to sell these flats was obtained from the DDA. In his return for the assessment year 1991-92, the assessee declared capital gains on account of sale of his 50 per cent. share in the said....

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....evenue. Ms. Bansal would submit that the intention of the assessee right from the day he had purchased the plot was to exploit it as a commercial venture and that is why instead of constructing a house for their self use, six flats were constructed and the same were sold at a premium. It is urged that the Tribunal having failed to apply the correct principles to determine the nature of the transaction, substantial questions of law arise for determination by this court. We do not agree. It is well settled that there cannot be an abstract rule or principle which could be applied to determine the character of the transaction. It would depend on the facts and circumstances of each case. The question of distinction between a capital sale and ....