TaxTMI 
TaxTMI 
2018 (7) TMI 1619
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....ers of which grounds 1 & 3 are general, needing no specific adjudication. 2. Ground No.2 is reproduced hereunder:- ''2.1 The Commissioner of Income Tax (Appeals) erred in relying the decision of the ITAT, Chennai in the assessee's own case for the AYs 2009-10 & 2011-12 by holding that the assessee's real estate dealing are to be treated as ''Capital gains'' which was not accepted by the Department and further appeal is pending before Hon'ble High Court of Chennai 2.2 The Commissioner of Income Tax (Appeals) ought to have appreciated the fact that the manner in usage of land, the dominant intention of the assessee firm, and even the formation of the assessee firm itself- all lead us to the inescapable conclusion that the....
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....ess''. The land and the flats therein which was sold and from which assessee derived the gains was situated in Nolambur. Payments for purchase of this land was made by one M/s. Petro Plast Industries Ltd in February and March 2005. The question whether income arising from sale of the flats and undivided share in such land could be assessed under the head income from business or capital gains had come up before this Tribunal in assessee's own case for assessment years 2009-2010 and 2011-2012. What was held by this Tribunal at para 7 to 10 of its order dated 17.06.2016 is reproduced hereunder:- ''7. We have considered the rival submissions on either side and perused the relevant material available on record. The question arises consi....
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....gistered on 23.05.2005 in the name of the assessee-firm and the land was treated as fixed asset in the books of the firm, would indicate that at the time of purchase of the property, the intention of the partners was to treat the same as capital asset. This Tribunal is of the considered opinion that the entire circumstances and the material facts need to be taken into consideration to ascertain the intention of the partners at the time of purchase of the property. After considering all the facts available on record, including the payment made before the date of formation of partnership firm, this Tribunal is of the considered opinion that the land in question was intended to be treated as capital asset by the partnership firm. 8. T....
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.... of the Administrative Commissioner, a copy of which is available at page 3 of the paper-book. Mrs. Saroj Agarwal, one of the co-owners of the land in which the project was developed by M/s Deluxe Apartments & Building Company, treated the transaction as business transaction and claimed the profit as business income. The Administrative Commissioner by exercising his power under Section 263 of the Income-tax Act, 1961 (in short 'the Act') found that the assessee never engaged in the business and the land was sold without even improvement. No supplementary work was made by the assessee other than entering into Memorandum of Understanding for development with some builder to which the present has entered into. The Administrative Commis....