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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 ..... the agreements point to the direction that there is an element of profit and trade involved. The sharing of the constructed part, that too on the premises not owned by the assessee 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, the AR informed that the assessee and her husband are in the business of development of real estate. The Developers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case and in law the CIT(A) erred in confirming the order of the assessing officer in assessing the cost of acquisition of the said premises at Rs.25,79,904/- without allowing the benefit of indexation to the appellant. 5. On the facts and in the circumstances of the case and in law the CIT(A) erred in confirming the order of the assessing officer in not including the amounts of Rs.15,18,880/-, Rs.3,48,000/- and Rs.1,66,342/- being the amount paid to acquisition of T.D.R., payment to BMC and interest respectively in the cost of acquisition. 6. On the facts and in the circumstances of the case and in law the CIT(A) erred in confirming the order of the assessing officer in not allowing the benefits to the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 7. Before us, the AR submitted that grounds no. 1, 2, 3 4 pertain to the single issue and briefly took us through the facts of the case and submitted that the intention of the assessee, has first to be examined, i.e. the property in question has been ready and in occupation of the assessee since 2005 and the assessee sold her portion, leaving the husband s portion, where they are still residing. The AR pointed out, had there been any intention for the conduct of business, the assessee would not have waited for over three years after getting sanctions for occupation. He submitted that the CIT(A) proceeded to assess the transaction as a business, because in the agreement entered into by the assessee and the owners Jay Builders, the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of trade was correct, along with denial of benefits under the head capital gains. 11. In the rejoinder, the AR insisted that intention of the assessee was always to be an investor and not a trader and also that no trader would hold its SIT for such a long period. 12. The AR, therefore, pleaded that the order of the CIT(A) as infirm. 13. We have heard the arguments of the contesting parties and have minutely perused the agreements entered into by the assessee and the owner, M/s Jay Builders. When we look into the relevant clauses, which are being reproduced hereunder : 2. The Developers shall construct the aforesaid two floors i.e. fifth and sixth floors in aggregate admeasuring about 2600 square feet at their own costs and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Owners and provided usual amenities and the Owners hereby confirm having taken possession of the 3 flats as aforesaid and they are fully satisfied with the quality of the construction and amenities provided therein and they have no claim of whatsoever nature against the Developer. 4. The Developer No. 1 i.e. Shri Bhagwandas Agarwal has 2/3 share and the Developer No. 2 i.e. Smt. Annapurna Bhagwandas Agarwal has 1/3 share in the aforesaid development. 5. The Owners have represented to the Developer that they have paid the entire consideration price in respect of the aforesaid DRC for the construction of additional 3 floors and by way of TDR and got the plans sanctioned from Municipal Corporation of Greater Mumbai and other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after it has sold its stock to the incumbments. 16. With these observations, we can only infer that the transaction entered into by the assessee was in the nature of trade. In these circumstances, we do not intend to disturb the findings of the CIT(A), which we sustain. 17. Grounds no. 1, 2, 3 4 are therefore rejected. 18. Ground no. 5 pertains to exclusion of Rs.15,18,880; Rs.1,66,342/- and Rs.3,48,000/- from the cost of acquisition. 19. Since we have held that the transaction was in the nature of trade, these costs would have a different complexion, which the CIT(A) have taken into consideration. 20. We, therefore, do not find any reason to interfere in the order of the CIT(A), hence the ground is rejected. 21. Ground no. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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