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TMI Blog2017 (10) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a capital asset is chargeable to tax under the head ‘capital gains’ and not under the head ‘income from business’. It is not a case of the Revenue that the assessee was regularly booking flats and selling the same so that it can be said that the assessee has entered into a business transaction. The income shown by the assessee has to be assessed under the head ‘income from capital gains’. The capital derived by the assessee is long term capital gain as the assessee held the right on the asset for more than 36 months. We therefore set aside the order of the CIT(A) and direct the AO to treat the said profit as long term capital gains a returned by the assessee. - Decided in favour of assessee. - ITA No. 8805 /Mum/2011 - - - Dated:- 24- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains. It was further noted that the assessee received an allotment letter for flat No. 502 dated 1st April, 2001 of payment of ₹ 1,00,000/-. He took the view that the allotment letter was a fabricated one. Till the assessee sold the flat on 20.02.2006, no agreement was executed between the assessee and the builder M/s. Amrut Dhara Enterprises. Although the agreement has been executed within six months from the date of the allotment letter. The AO also found from the sale agreement dated 10.02.2006 that the owner of the plot granted permission to the developer to develop the property only on 22.04.2002. Therefore he took the view that the allotment letter cannot be prior to this permission to develop the plot. Therefore the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled view as per the decision of the Hon'ble Supreme Court in the case of CIT vs. Daulatram Rawatmall 87 ITR 349 that the onus to prove that the apparent is not the real is on the party who alleges that the apparent is not real. Merely an agreement has not been entered into by the assessee with the Developer within a period of six months from the date of allotment did not mean that a right of the assessee has not been created in the flat to be constructed by the builder. We have also gone through the tripartite agreement dated 10th February 2006 by which the assessee has transferred his rights in the aforesaid flat. Clause J of this agreement states as under: - J The promoters alone have the sole and exclusive rights to sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002. The Additional Collector and competent authority certified on 1st April, 2002 that the said plot is not a vacant land under the provisions of Urban Land Ceiling Act, 1976 and gave permission to the promoters to redevelop the said property. All these took place before the development agreement was signed on 22nd April, 2002 between M/s. Amrit Dhara Enterprises and the owners but prior to signing of the said agreement the builder applied to the Mumbai Building Repairs and Reconstruction Board for commencement certificate and prior to the signing of the development agreement on 22nd April, 2002 the owners have authorised the developer to make necessary application to various government authorities. In the tripartite agreement dated 10th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of additional buildings in respect of the large layout of the above Plot PROVIDED the shape, size and location of the above plot is not altered. Similarly, clause d of the tripartite agreement dated 10th February, 2006 reads as under:- (d} by various agreements each made between the promoters of the one part, the owners of the second part and the tenants/occupants of the said old building of the third part, the promoters agreed to allot to each of the tenants/occupants the premises in the new building to be constructed on the said plot, as alternative accommodation in lieu of the tenants/occupants agreeing to surrender their rights in the premises in their respective occupation in the said old building and agreed to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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