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TMI Blog2023 (6) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... s duly been disclosed by the assessee in assessment year 2011-12 and accepted as such by the revenue, though u/s 143(1) of the Act. For the purpose of arriving at the capital gains in respect of sale of property in assessment year 2012-13, we find that the assessee had indeed considered the sale price as determined by the Stamp Valuation Authority in terms of section 50C of the Act as the actual sale consideration was less than the circle rate. This clearly shows the intention of the assessee that she always wanted to remain only as an investor and never intended to carry on any business on the property. Thus we are of the considered view that the gains arising on the sale of the property to the assessee has to be taxed only as capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 777/-, after claiming deduction of Rs. 80,91,127/- under section 54F of the Act in respect of reinvestment of capital gains in another residential property. 4. It is not in dispute that the assessee has purchased the various properties commencing from assessment year 2008-09 to assessment year 2011-12. It is also not in dispute that the assessee had sold one of the properties in assessment year 2011-12 and assessment year 2012-13. According to learned AR, the assessee had only invested in the property in the capacity of investor for the purpose of earning capital appreciation thereon. The intention of the assessee at the time of purchase of properties in the capacity of investor has also been accepted by learned Assessing Officer in page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. Thereby it is clear and accepted that immovable property purchased is not stock in trade. 2008-09 2009-10 4,85,255 In the Balance Sheet these immovable properties have been shown as Fixed Assets along with other prior owned properties. Balance Sheet as on 31.03.2009 is placed on record. Thereby it is clear that immovable property purchased is not stock in trade. 2009-10 2010-11 21,85,000 In the Balance Sheet these immovable properties have been shown as Fixed Assets a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property commercially by using it for business purposes. Hence, according to AR, there was no intention of the assessee to earn any short-term gains from the said property by engaging herself in the adventure of any trade. 7. Per contra, learned DR vehemently argued that the assessee has divided its lands into several plots and had sold those plots to several parties. The assessee has also sold the property in assessment year 2011-12 and similarly in assessment year 2012- 13. This goes to prove that the assessee had decided to transform herself as a business women to exploit commercially the properties owned by her as an adventure in the nature of trade in order to earn business income. 8. We are unable to accept to this proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual sale consideration in terms of section 43CA of the Act, if the actual sale consideration is less than the circle rate. But the provisions of section 43CA of the Act was introduced in the Statute only w.e.f. 01.04.2014 and applicable from assessment year 2014-15 onwards only and cannot be applied to earlier assessment years. Hence, the learned Assessing Officer was not justified in accepting the gain as business income as against capital gain. v. One more excruciating fact which prove the intention of the assessee to be an investor beyond any doubt is that the assessee is only 50% co-owner of the property along with his daughter-in-law, which is subjected to sale during the assessment year 2012-13 i.e. the year under consideration. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the very same transaction qua the assessee herein. 9. In view of the aforesaid observations and considering the totality of the facts and circumstances of the case, we are of the considered view that the gains arising on the sale of the property to the assessee has to be taxed only as capital gains and not as income from business. Consequently, the assessee would be eligible for deduction under section 54F of the Act in respect of reinvestment of capital gains made in the house property. 10. However, in the interest of justice and fair play, we find that since there is no finding given by learned Assessing Officer in his assessment order with regard to examination of quantum of deduction under section 54F, we deem it fit and appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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