1980 (11) TMI 64

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.... 1964 the assessee came to India for good and later started the business in the style M/s. African Engineering Works. He was not dealer in property. 3. The facts as seen by ITO are that the assessee had sold one property at Rajpardi which was received as gift from his father. According to the assessee this resulted into long term capital gains. This contention was accepted by the ITO. The assessee also sold a plot at Umarwada, Surat. This was purchased in 1967 and was sold on 15th Nov., 1971. On 28th Jan., 1972 the assessee purchased another plot near Ambaniketan. The assessee had purchased 15 rooms on 10th May, 1967 and sold 11 of this in S.Y. 2029 (in between 7th Nov., 1972 to 26th Oct., 1973). From this the ITO concluded that the asse....

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....lot was sold on 28th Jan., 1972. He, therefore, urged that the assessee was a dealer in land in view of these transactions. He also relied heavily on the orders of the ITO and the AAC. He also pointed out that the assessee was maintaining a separate account for property purchase and sale and was taking out different profits made in transactions which were then taken to capital account. He stated that this indicated that the assessee was treating the properties his business assets. He also stated that in subsequent years some profit in respect of the property was shown as business income. Shri Deodhar however did not point out the specific year and the transaction which was taxed as business income; it may also be noted that neither the ITO ....

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.... adventure in the nature of trade. In that particular case their Lordships noted that the assessee had entered into 15 transactions of sale and purchase of immovable property from November, 1958 to February, 1963. But that was not considered adequate to hold that the assessee was a dealer in property. 10. In the case before us the ITO has not made any attempt to show that the Umarwada plot was purchased with the intention to resell it. He has only noted that after selling this property the assessee purchased another plot and further that out of 15 rooms purchased on 10th May, 1967 the assessee had sold sometime in 1972 or 1973 11 of these rooms. No attempt has been made to show that nature of purchase was with the intention to resell it.....