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TMI Blog2016 (10) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered as capital gain. Therefore, when one considers the gain or exclusion from the set off of the gain it should be related to the capital assets. When the property was not shown as capital assets but was shown as stock in trade, naturally the view taken by the Tribunal cannot be said to be erroneous. No substantial questions of law . - ITA No. 192 of 2014 - - - Dated:- 7-9-2016 - Jayant Patel And S. N. Satyanarayana, JJ. For the Petitioner : Sri. E. I. Sanmathi For the Repondent : Sri. A. Shankar And Sri. M. Lava JUDGMENT The Revenue has preferred the present appeal by raising the following substantial questions of law : 1. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.12.2011 was issued to the assessee proposing to disallow the exemption claimed U/s.54F of Rs,1,72,00,000/-. In response to this, the assessee s AR vide his letter dated 21.12.2011 stated that the income from house property offered is in respect of stock- in-trade. Hence, the assessee is entitled to deduction U/s.54F. 5.6. The Revenue s position is that exemption U/s.54F is not to be given in case of applicability of any of the conditions contained in proviso (a) or (b) of section 54F. The assessee s own declaration in his Return of Income is an admission of fact that he owned these residential houses at the time of sale of the original asset. The claim of these properties to be as stock in trade is an after thought and immaterial a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no evidence on record to show that the stock-in-trade of the assessee was treated as residential house owned by the assessee. On the other hand, it is clear from the accounting treatment that all the seven flats were treated as stock-in-trade. The income from these flats is offered to tax under the head income from house property because of the specific provisions of Section 22 of the Act read with Sec.14 of the Act. Such treatment of income by the assessee cannot be treated as an act by which the assessee has considered the seven flats as residential house owned by him. We are, therefore, of the view that denial of the claim of the assessee for deduction U/s.54F of the Act is unassailable. The AO is, therefore, directed to give the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is that stock in trade is also included for applicability of Section 54F of the Act, in our view, cannot be accepted. 10. We may also add that under the heading of Capital gains, Section 45 of the Act provides that any profits or gains arising from the transfer of capital asset can be considered as capital gain. Therefore, when one considers the gain or exclusion from the set off of the gain it should be related to the capital assets. When the property was not shown as capital assets but was shown as stock in trade, naturally the view taken by the Tribunal cannot be said to be erroneous. 11. Under the circumstances, we do not find any substantial questions of law would arise for consideration as sought to be canvassed. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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