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TMI Blog2019 (12) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee. The principle underlying the distinction between a capital sale and an adventure in the nature of trade were examined in Venkataswami Naidu Co (G) v. CIT [ 1958 (11) TMI 5 - SUPREME COURT] where it was held that the character of a transaction cannot be determined solely on the application of any abstract rule, principle or test but must depend upon all the facts and circumstances of the case. Also in Janki Ram Bhadur Ram v. CIT [ 1965 (3) TMI 19 - SUPREME COURT] held that if the assessee, even at the time of acquisition had a clear intention to resell it, that would be material but not a decisive consideration. We are inclined to agree with the treatment given by the assessee in his return of income as gains/loss f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 630/-. He revised his computation of total income and such revised return of income was filed on 31.03.2015 declaring total income at ₹ 46,83,050/-, claiming current year loss of ₹ 1,94,05,149/-. The assessee is engaged in the business of dealing in shares and securities and jewellery during the year under consideration. Also the assessee sold three flats and a parking lot during the financial year (FY) 2012-13. The said assets were appearing under Investments in the balance sheet of the assessee. During the course of assessment proceedings, the AO asked the assessee to explain as to why income from sale of property which has been done in a systematic, repetitive manner should not be treated as income from bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010-11, the assessee transferred or sold those assets within a short span of approximately two years from getting its ready for occupation. Further, the assessee had sold three flats for ₹ 5,06,07,200/- and four flats for ₹ 6,33,01,000/- during FY 2010-11 and 2011-12 respectively for which agreements to purchase were also entered on 27.03.2008. All the flats sold during FYs 2010-11, 2011-12 and 2012-13 are flats of the same Project/Society i.e. Kalpataru Estate Building 1B 1C Co-operative Housing Society Ltd. Also the assessee is holding four more flats as on 31.03.2013 in the same Society. In view of the above facts observed by him, the AO came to a finding that the assessee had purchased those flats and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in shares and securities and jewellery ; further, the gains offered were long term in nature because the assessee held those flats for more than 36 months and accordingly the indexed cost of acquisition was claimed while claiming the above capital gains as per section 48 of the Act. It is further explained that if the intentions were to deal on a systematic and a repetitive manner, then no businessman will lock his funds for three years for his trading activities; the assessee after selling these flats has not acquired any additional flats by re-investing the sale proceeds of those sold flats ; if the assessee was a dealer, then the assessee would have invested the sale proceeds of those sold flats as a working capital in acquiring the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applicable to decisions of income tax authorities, an assessment for a particular year is final and conclusive between the parties only in relation to that year. Thus the Ld. DR submits that the order passed by the Ld. CIT(A) be affirmed. 7. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We refer here to the following computation arrived at by the AO at page 6 of his assessment order : Flat No. Date of agreement - purchase (sale) entered by assessee with M/s Habitat Purchase Cost Sale Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er consideration and also a parking lot and all those properties were acquired on 27.03.2008. The assessee had acquired a duly constructed property and the construction of these flats was completed in March 2008 itself. As evident from the above chart, the assessee entered into agreement to purchase these flats on 27.03.2008. Flat No. 91-IB was sold on 14.01.2013; flat No. 92-IB on 17.04.2012; flat No. 133-IB on 04.02.2013. We find merit in the contentions of the assessee that if the intentions were to deal on a systematic and repetitive manner, then no businessmen will lock its funds for three years for his trading activities. We further find that the assessee, after selling these flats has not acquired any additional flat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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