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2016 (12) TMI 1797 - ITAT INDOREDisallowance of deduction of interest expenses - holding that transaction of sale and purchase of the house as not assessable as income from Business and Profession but was a transaction assessable under the head Income from Capital gain - HELD THAT:- We find from the assessment order that the assessee is a contractor dealing in construction business, which is also evident from the form 30CD audit report. We also find that no separate books of accounts were maintained in respect of business of trading in property nor any opening or closing balance in respect of the said property is shown. Therefore, this is an isolated transaction of purchase of a house, which, ofcourse, purchased in the name of individual capacity after obtaining housing loan for the said purchase. The house property is registered in his name on which stamp duty payment has also been made. Therefore, the assessee has purchased a capital asset, which has been sold in a very short span of time. Therefore, in the light of these facts, we are of the considered opinion that the lower authorities has rightly treated the same as short term capital gain transaction. Accordingly, the action of the lower authorities are confirmed. This ground of appeal is, therefore, dismissed. Income from house property after allowing deduction of interest u/s 24 - HELD THAT:- Assessee has claimed this purchase and sale of this house property and shown business income thereon at ₹ 3964/- by computing separate trading account. However, the lower authorities have found that the assessee is not engaged in the business of real estate, as this was a solitary transaction conducted by the assessee. Therefore, the income from this property was assessable as income under the head Capital Gain. Accordingly, short term capital gain of ₹ 19,61,000/- was worked out and assessed accordingly. We also find that the assessee has raised his alternative plea before the ld. CIT(A). However, the same was not found acceptable by the ld. CIT(A) on the ground that no such claim was made before the AO and the issue under consideration was not working of income from house property, but the issue of income is assessable under the head Capital Gains. In view of these facts, we find that the issue has not been examined by the AO and by the ld. CIT(A) . Therefore, in the interest of justice, we are of the considered opinion that this issue may be restored to the file of the AO for reconsideration the entire claim as income from house property. Ground No. 2 is, therefore, allowed for statistical purposes.
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