2013 (11) TMI 836 - AT - Income Tax

Classification of head of Income adventure in the nature of trade or sale of capital asset - sale of property after getting the flats constructed - whether it is case of conversion of property (capital asset) into the stock in trade u/s 45(2) - Whether the income falls under the head Capital Gains or Business income - Held that - Arrangement between these co-owners and GPIL cannot be termed as commercial arrangement for the simple reason that the piece of land including the bungalow inherited by these co- owners was a capital asset - Character of these asset, which was capital in nature, remained the same even after construction - Sale consideration received by these co-owners was on account of sale of capital asset Decided against the Revenue.

Summary

Issues:
- Interpretation of whether consideration received by the assessee for a property should be assessed as "capital gains" or "business income."

Analysis:
The Appellate Tribunal ITAT Mumbai heard cross-appeals by the department and the assessee regarding an order by the ld. CIT(A) for the assessment year 2003-04. The department's main issue was whether the consideration received by the assessee for the property 'Indraprastha' should be categorized as "capital gains" or "business income." The department relied on the AO's order, while the AR argued that a similar issue was decided in favor of the assessee for the assessment year 2004-05. The Tribunal had previously held in a related case that the transaction was not an adventure in the nature of trade, and the income was taxable as capital gains. The property was inherited by co-owners, and an agreement was made with a construction company. The AO treated the arrangement as a trade venture, but the CIT(A) and Tribunal disagreed, confirming that the income was from the sale of a capital asset.

The Tribunal agreed with the earlier decision and found the facts and issues to be identical in the current assessment year. The Tribunal reviewed the MOU between the co-owners and the construction company, emphasizing that the property remained a capital asset even after construction. The Tribunal confirmed that the sale consideration was on account of the capital asset's sale. As a result, the Tribunal dismissed the department's grounds, ruling in favor of the assessee based on the previous decision in the assessee's own case for the assessment year 2004-05.

During the hearing, the AR acknowledged that if the department's appeal was dismissed, the assessee's appeal would become infructuous. Consequently, since the department's appeal was dismissed, the Tribunal also dismissed the assessee's appeal. Ultimately, both the revenue's appeal and the assessee's appeal were dismissed by the Tribunal. The order was pronounced on November 13, 2013.