TaxTMI 
TaxTMI 
2025 (5) TMI 1244
X X X X Extracts X X X X
X X X X Extracts X X X X
....selected for scrutiny for the AYs 2011-12 to 2015-16 on recurring issues of (i) LTCG viz., treating the LTCG declared by the assessee as business income, (ii) denial of claim of indexation, (iii) addition u/s 68 and (iv) addition under section 14A of the Income-tax Act, 1961. He further noted that the assessee has declared Rs. 4,01,10,000/- towards sale consideration received under LTCG and claimed indexation benefit totalling Rs. 3,50,96,000/- and declared long term capital gain of Rs. 59,14,000/- u/s 54. Since there was no response from the side of the assessee and this issue is recurrent for last five years and in all the assessment years, the Assessing Officer had assessed the sale consideration received as business income and denied indexation benefits as the assessee is involved in the business of buying and selling of properties, the Assessing Officer made the addition of Rs. 4,01,10,000/- to the total income of the assessee by treating such income as business income. 4. Before the Ld. CIT(A) / NFAC it was submitted that the assessee is not engaged in trading of immovable properties and the properties were shown under investment in his personal Balance Sheet. Relying on v....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... submitted that the immovable assets sold during the year were held for more than 7 years: Sr No Description of the Property Date of Sale Date of Purchase Holding Period (Years) 1 Asset : FLAT NO 4 AT 6 PRABHAT 30-apri-2017 24-Jan-2011 Approx 7 years 2 Asset : WAKAD SR NO 260 30-Dec-2017 24-Oct-2011 Approx 7 years 3 Asset : HINJEWADI SR NO 152/3/3 14-Mar-2018 29-Apr-2006 Approx 12 years 8. He submitted that merely because the assessee in the preceding years have filed the application under Vivad Se Vishwas Scheme does not mean that the assessee has accepted the treatment of such transactions by the Assessing Officer in the past. Relying on various decisions, he submitted that an assessee can have two portfolios i.e. one for investment purpose and another for trading purpose. He submitted that the conduct of the assessee in the instant case shows that the properties so held for more than 7 and 12 years respectively are not meant for trading purposes but for investment purposes and therefore, the gain that has arisen to the assessee has to be taxed as long term capital gain and not as business income being adventure in na....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d before the Ld. CIT(A) / NFAC by the assessee read as under (para 22 and 23 of the paper book) : "Date: 05 July 2022 To, The Commissioner of Income Tax (Appeals) Income Tax Department Sub-AY 2018-19 PAN-AATPR6854L Respected Sir, Please refer to your Clarification Letter ITBA/NFAC/F/17/2022-23/1043629271 (1) Dated 26 June 2022, I submit my clarification herewith following - 1) AY 2009-10 - I have filled all the due forms under Vivad se Vishwas scheme. I have received Form No 5 towards full and final settlement of tax under Section 5(2) read with Section 6 of the Direct Tax Vivad Se Vishwas Act, 2020, after all the taxes are paid and withdrawn the appeal. (Necessary documents are attached - Annexure 4 & 5). 2) AY 2010-11- Normal assessment completed and all taxes paid (Annexure -6) 3) AY 2011-12-I have filled all the due forms under Vivad se Vishwas scheme. I have received Form No 5 towards full and final settlement of tax under Section 5(2) read with Section 6 of the Direct Tax Vivad Se Vishwas Act, 2020, after all the taxes are paid and withdrawn the appeal. (Necessary documents are attached ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urchase and sale of the properties as business income for which the assessee has opted for Vivad se Vishwas Scheme for assessment years 2009-10, 2011-12, 2012- 13, 2013-14, 2014-15 and 2015-16. Similarly, for assessment years 2010-11, 2016-17 and 2017-18, normal assessment was completed and the assessee has paid all the taxes. This shows that the assessee is continuously engaged in trading of properties and therefore, we do not find any infirmity in the order of the Ld. CIT(A) / NFAC in confirming the action of the Assessing Officer in treating such purchase and sale of properties as business income. We find the Ld. CIT(A) / NFAC has given a finding also that all the immovable properties were shown by the assessee under investment in earlier as well as present financial year therefore, the claim of the assessee that he was maintaining two separate portfolios is not correct. The Ld. Counsel for the assessee also could not bring any material before us to substantiate that the assessee is maintaining two separate portfolios i.e. one for investment and another for trading purpose. We find the Ld. CIT(A) / NFAC while adjudicating the issue has relied on the decision of Delhi Bench of th....