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TMI Blog2013 (11) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. 2. On the facts and in the circumstances of the case and in law the CIT(A) failed to appreciate the fact that the basic intention of entering into the agreement with the owner was to acquire the residential flat for self occupation. 3. On the facts and in the circumstances of the case and in law the CIT(A) out to have appreciated the fact that the A.Y. 2003-2004 appellant's claim under section 54F was accepted against the purchase of the said residential flat and also no businessman would hold the stock in trade for so many years before selling it and ought to have assessed the said amount under the head capital gains. 4. On the facts and in the circumstances of the case and in law the CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, enquired about the details of the transaction along with documents as executed, by the assessee and the owners. 4. On consideration of the replies, the AO computed the LTCG as Rs.70,99,506/- as against Rs.61,34,165/- computed by the assessee. 5. Aggrieved, the assessee approached the CIT(A), who not only negated the claim of the assessee on exemption, but treated the transaction as a business venture and sent the proposal for enhancement. The assessee reiterated the arguments made before the AO. The CIT(A), therefore, rejected the contentions of the assessee and treated the transaction as a business venture and negated all claims of the assessee. 6. Aggrieved, the assessee is now before the ITAT. 7. Before us, the AR submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rader and also the AO to have negated the assessee with the full deduction, as claimed by her. 10. The DR on the other hand supported the order of the CIT(A) and submitted that though the MOU is short, but it gives the scent of an adventure in nature of trade. The DR pointed out that the basic intention of the assessee and her husband had been to do development business and because of which, they undertook to build and develop 5th, 6th & 7th floor and also that the assessee purchased the TDR, all this shows and indicate that the intention of the assessee had been to enter a trade transaction. The DR, therefore, submitted that the view taken by the CIT(A) to hold that the transaction as such was in the nature of trade was correct, along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oor, either on seventh floor or fifth floor as agreed by both the parties". and further, after getting the TDR, agreement dated 25.10.2005, the relevant clauses are 2. The Developers have completed the construction of the said building and provided to the Owners as aforesaid 1 flat bearing No. 501 on the fifth floor and 2 flats viz. Flat Nos. 701 & 702 on the 7th Floor and the Developer No. 1 i.e. Shri Bhagwandas Agrawal has retained with him 2 flats bearing Nos. 601 & 602 on the 6th Floor and the Developer No. 2 i.e. Smt Annapurna Agarwal has retained with her flat No. 502 on the 5th Floor 3. The Developers have completed the construction of the said 3 floors and handed over the possession of the 3 flats as afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see and her husband, goes to indicate trade. In case, the premises belonged to the assessee and in such a situation, the argument of the AR would have borne some weight. On a specific query from us, the AR informed that the assessee and her husband are in the business of development of real estate. 15. Another fact indicating the trade intention comes from the reading of clause 6 of the agreement dated 25.10.2005, which reads, "6. The Developers hereby cause the Society to be formed by the occupants of the said building known as Devaki to admit them as members of the Society and will execute necessary conveyance in favour of the Society". This clause clearly shows that the assessee and her husband would form the society of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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