TaxTMI 
TaxTMI 
2020 (10) TMI 354
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....s are identical in nature, they were heard together and are being disposed of by this common order, for the sake of convenience. 4. The Grounds of appeal urged by the revenue in AY 2013-14 are extracted below:- i. The CIT(A) erred in treating the business profits, earned by the assessee in the form of share of revenue from entire residential project from A.Y. 2012- 13 to the A.Y. 2015-16, as Capital Gain. ii. The CIT(A) erred in holding the business transaction of the assessee as investment even after acknowledging the fact that the assessee had no intention to retain any super built up area but he wanted to get an immediate return out of this adventure in the nature of trade. iii. The CIT(A) erred in treating the land of the assessee as Capital asset for the A.Y. 2012-13 to the A.Y. 2015-16 despite the fact that it was converted into a trading asset even prior to these assessment years. iv. Without prejudice to the above ground, the CIT(A) erred in placing reliance on the decision of Delhi ITAT in the case of Mohinder Kumar Jain where multiple properties were sold in different assessment years but the proceeds were applied in only one New Ass....
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....-16) - 1,86,85,404 FY 2015-16 (AY 2016-17) - 88,00,610 The assessee offered the amounts received by him as Long term capital gains in respective year of receipts. The assessee also claimed exemption u/s 54 of the Income-tax Act,1961 ['the Act' for short] against the Long term capital gains in respect of investment made by him in a house property. 9. It is stated that in AY 2012-13, the AO assessed the amount of Rs. 97,23,585/- as Short term capital gain. However, in AY 2013-14 to 2015-16, the AO held that the assessee has undertaken adventure in the nature of trade and accordingly assessed the amount received by the assessee in each of the years as income from business. 10. The Ld CIT(A), however, held that the amount received by the assessee in AY 2012-13 to 2015-16 is assessable as income from Long term capital gains. Aggrieved, the revenue has filed these appeals. As noticed earlier, the appeal relating to AY 2012-13 was dismissed on account of low monetary effect. 11. The Ld D.R submitted that the AO has taken a view that the transfer of land has taken place in FY 2008-09, when the father of the assessee had initially entered agreement with M/s Shri....
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....ain only. 15. The Ld A.R further submitted that the other co-owners of the land, i.e., mother and brother of the assessee, have declared the receipts as long term capital gains only and the same has been accepted by their respective assessing officers. Further, in the assessee's own case, the AO has assessed the receipts as Short term capital gain in AY 2012-13. He submitted that the AO has taken contradictory stand in different years. 16. We heard the parties and perused the record. A perusal of the grounds of appeal urged by the revenue would show that the revenue is aggrieved by the decision of Ld CIT(A) in holding that the amounts received by the assessee is assessable as long term capital gains. Hence we confine ourselves with the said issue alone. We notice that the Ld CIT(A) has dealt with this issue as under:- 9.5 Adventure in the nature of trade/capital gain? 9.5.1 The A.O. for treating the same as adventure in the nature of trade has sold as under: "The assessee has agreed to receiving the revenue on the sale of each of the apartment in its share and is accordingly receiving it year on year. In such a case, it can only be considered that t....
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....red that the assessee is doing business in the nature of adventure in the nature of trade or concern and hence the receipt has to be considered as business profit. 9.5.4 The fact of receipt of consideration spread over several years does not change the nature of transaction. Even in the case of receipt of sale consideration by way of super built up space also, it may happen that the seller may receive the possession of the flats at various intervals falling in different financial years, depending on the completion of various stages of the project necessitating taxing the said capital gains spread over several years. There is no other fact/argument put forth by the AO. Therefore, there is no force in the argument of the AO that the transaction is in the nature of adventure/trade. Accordingly, I am of the view that the transfer of the property shall be treated as a long term capital gain. .................................................... .................................................... 9.5.7 The appellant has also submitted that under the similar circumstances the department has treated the transaction to be that of capital gains in....
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....hat the assessing officer has treated the amounts received by the assessee as business receipts, solely for the reason that the amounts were received in instalments. The undisputed facts remain that the assessee is the owner of land and he has transferred the same to the developer, M/s Shriram Properties Ltd under a Joint Development Agreement. It is a fact that the assessee has not carried on any venture or business activity by so transferring the land. On the contrary, it is M/s Shriram Properties Ltd, which is carrying on business activity. The role of the assessee is restricted to transferring the land and receiving the consideration. There is no dispute with regard to the fact that the land was held by the assessee as "capital asset" only. Hence the transfer of land would give rise to capital gains only as per the provisions of the Act. 18. It so happened that the consideration for transfer of land was so fixed that the assessee would be receiving 2.64% of the sale consideration of flats that are going to be constructed. Hence the assessee would be receiving amounts as and when the flats are sold. As rightly observed by Ld CIT(A), the receipt of consideration over a period ....