9911796707
TMI Blog2012 (9) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed to dispose of the appeal of department on the basis of material available on record and considering the submissions of ld D.R. 4. Ld D.R. relied on order of AO. However, ld D.R. conceded that the issue is covered by the decision dt. 11.1.2010 of the ITAT in the case of co-owner namely, Mr Krishan Premanarayen for assessment year 2004-05 in assessee s favour in I.T.A.No.6293/M/2007 in appeal filed by department and I.T.A. No.6133/M/2007 filed by assessee by holding that the transactions is not an adventure in the nature of trade and the entire income earned by the assessee as well as other family members is taxable as capital gains. It is relevant to state that assessee is co-owner of the property Indraprastha being 6.25% share. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire income earned by assessee as well as co-owners is taxable as capital gains. It is relevant to state that the Tribunal by its order dated 11.1.2010 (supra) confirmed the findings of ld CIT(A) vide para 10 which reads as under: We have heard the rival submissions and considered them carefully. After considering the submissions and perusing the material on record including the MOU entered into between the assessee and other shareholders with GPIL, we find that a Memorandum of total partition dated 31.8.1995 was prepared. Each of the co-owners has undivided share, right title and interest in the property, i.e. piece or parcel of land with bungalow consisting of ground and one upper floor and separate structure being garage with servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the co-owners were having undivided interest. Accordingly, the assessee computed long term capital gains at 25% as her share and has shown the same in the return of income. The AO is also not disputing the shareholding pattern of these co-owners. However, the AO treated the sale consideration as an adventure in the nature of trade. In our considered view, the 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. These co-owners got constructed the building comprising of many flats for their residential purposes. Therefore, an agreement was entered into with GPIL. GPIL constructed the bui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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