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TMI Blog2021 (1) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessment order and there is no clarity with respect to details. CIT (Appeals) has also observed that no evidence was filed before the lower authorities in respect of serious efforts made by the assessee. We on perusal of the legal notices and facts narrated by the assessee are of the opinion that these facts are not discussed by the Assessing Officer or the CIT (Appeals) and the assessee firm could substantiate serious efforts made for recovery of advance amount. We considering the principle of natural justice, shall provide one more opportunity to the assessee to substantiate with the evidence before the Assessing Officer. Assessee's appeal is allowed for statistical purposes. - ITA No.2522/Bang/2018 - - - Dated:- 19-8-202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case as, by paying advance money, the Appellant did not get any right which could be termed as capital asset within definition of section 2(14); 6. The Learned CIT(A) has erred in perversely stating that the Appellant is primarily into construction activity and not of outright purchase/sale of property; 7. The Learned CIT(A) has erred in law and on facts in requiring series of operations or transactions of similar nature to treat the impugned transaction/activity as business in nature in accordance wih provisions of section 28 read with section 2(13) of the Act; 8. The Learned AO and CIT(A) have erred in law in not appreciating that it is for the appellant to decide future course of action and the Assessing Office cannot ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id as advance. The Assessing Officer has issued summons to seller of the property Mr. Mukesh Kumar to furnish the return of income for the Assessment Year 2013-14. Whereas, the Assessing Officer found that the seller of the property has not disclosed this advance receipt for income tax. Further, Show cause notice was issued to the assessee to explain the details, and the assessee has filed submissions on 12.02.2016 referred at Para 4.2 of the assessment order. The observations of the assessing officer are that the transaction has to be treated as Capital Asset and forfeiture loss cannot be allowed as deduction. Whereas the submissions made before the Assessing Officer are that the assessee firm intents to resale the property in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. Aggrieved by the order of CIT (Appeals), the assessee has filed an appeal with the Tribunal. 4. At the time of hearing, the learned Authorized Representative submitted that the CIT (Appeals) has erred in confirming the addition overlooking the facts which goes to the roots of the case. The learned Authorized Representative has substantiated his arguments with Paper Book and judicial decisions and emphasized that the transaction entered by the assessee firm was intend to make profit out of the sale and not to keep as a fixed asset and demonstrated with copy of partnership deed, where the objects of the assessee business are referred. The contention of the ld.AR that the assessee has submitted the details before the CIT (Appeals), whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther The Ld. AR referred to the legal opinion and the Notice sent by the seller of the property for payment of balance consideration. The assessee firm has sought legal opinion on Agreement of Sale and also reply was submitted by the assessee to the seller referred at pages 45 to 51 of the Paper Book, further the assessee never intended to hold the property but due to adverse market conditions and financial difficulties has to cancel the agreement referred to pages 52 to 55 of the Paper Book. The learned Authorised Representative relied on the judicial decision in the case of Prin. CIT Vs. Khyati Realtors (P) Ltd reported in 108 taxmann.com 449 (Bom). The learned Authorised Representative contentions that the Hon'ble Court has considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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