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TMI Blog2019 (3) TMI 1656X X X X Extracts X X X X X X X X Extracts X X X X ..... H COURT] has held that the property hold as stock in trade becomes or partake character of the stock and no income derived therefrom, whatever, income from business cannot be held as income from house property. Similarly, the opposite view is taken in the case of CIT v. Ansal Housing and Construction Ltd [ 2012 (11) TMI 323 - DELHI HIGH COURT] - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated facts are that the assessee is a builder, property developer and trader in TDR. The AO during the course of assessment proceedings in AY 2013-14 noted that unsold area of 52385 sq. ft. is lying in closing stock, which are completed flats. Accordingly, he estimated the ALV by observing as under: - "Accordingly, on the total area of unsold area of 52385 sq. ft @ ₹ 50 per square feet per month comes to ₹ comes to ₹ 2619250/- per month and accordingly, the total annual rent determined at ₹ 3,14,31,000/- (₹ 2619250 X 12). After allowing the statutory deduction @ 30%, which comes to ₹ 9429300/- and the net taxable income of ₹ 2,20,01,700/- is brought to tax under the head income from house pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee stated that the Tribunal particularly in the case of Chamber Construction Pvt. Ltd. vs. DCIT in ITA No. 4418/Mum/2017 vide order dated 30.11.2018 (in assessee's own case for AY 2012-13) has considered this issue vide Para 7 to 10 as under: - "7. We have heard the authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record. We find that our indulgence has been sought by the assessee by preferring the present appeal, for adjudicating as to whether the CIT(A) is right in law and facts of the case in concluding that the deemed notional lettable value of the completed unsold flats held by the assessee company as stock-in-trade was liable to be determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. Our aforesaid view is fortified by the judgment of the Hon‟ble High Court of Gujarat in the case of CIT Vs. Neha Builders (P) Ltd. (2008) 296 ITR 661 (Guj). The Hon‟ble High Court while disposing off the appeal filed by the revenue in the case of an assessee company which was engaged in the business of construction of property, had observed that w here a property is held as stockin-trade, then the same would become or partake the character of the stock, and any income derived therefrom would be income from business and cannot be held as income from property. The Hon'ble High Court while concluding as hereinabove had observed as under: "7. From the order passed by the learned CIT(A), it would clearly appear that the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalogy." 9. Admittedly, the lower authorities had relied on the judgement of the Hon'ble High Court of Delhi in the case of CIT Vs. Ansal Housing Finance & Leasing Company Ltd. (2013) 354 ITR 180 (Delhi) and had therein concluded that the notional lettable value of the unsold flats held by the assessee was liable to be determined and brought to tax under the head "Income from house property‟. We find that the issue under consideration before us i.e whether the notional lettable value of the property held by an assessee as stock-in-trade in its business as that of a developer is liable to be assessed under the head "income from house property‟, has been differently answered by the Hon‟ble High Court of Gujarat in CIT Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the head "Income from house property‟. Still further, a similar view had also been taken by the Tribunal in the case of M/s C.R Development Pvt. Ltd. Vs. JCIT-8(1)(OSD), Mumbai [ITA No. 4277/Mum/2012; dated 13.05.2015]. It was observed by the Tribunal that estimating of the rental income of the flats held by the assesses as stock-in-trade was not justified, as the said flats were neither given on rent nor the assessee had any intention to earn rent by letting out the same. We further find that another coordinate bench of the Tribunal i.e. ITAT, Mumbai Bench "G", Mumbai in ITO-2(1)(1), Mumbai Vs. M/s Arihant Estates Pvt. Ltd. [ITA No. 6037/Mum/2016; dated 27.06.2018] had relied on an earlier view taken by the Tribunal in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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