Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2019 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (3) TMI 2007 - AT - Income TaxAddition as income from business or house property u/s. 23 - income derived was stock - alternatively ALV is to be computed by taking 6% as the average rate of investment as against 8% of average rate of investment adopted by the AO - HELD THAT:- CIT(A) has sustained the addition made by the AO after placing reliance on the decision of Ansal Housing Properties [2012 (11) TMI 323 - DELHI HIGH COURT] wherein as decided that the assessee engaged in business of construction and house property would be liable to pay of ALV of flats laying unsold during the year as income from house property. Also noticed that an amendment has been made by the Finance Act in sub-section (5) of section 23 of the act w.e.f. 01-04-2018. This amendment is not applicable for the year under consideration. With the assistance of ld. representatives, we have gone through the decision CIT vs. Neha Builder Pvt. Ltd. [2006 (8) TMI 105 - GUJARAT HIGH COURT] wherein it is held that if property is used as stock in trade, then, such property would become or partake character of stock and any income derived from stock would be income from business and not income from property. We have also gone through the judgment in the case of ACIT vs. Haware Construction Pvt. Ltd. [2018 (10) TMI 1523 - ITAT MUMBAI] As in the case of Neha Builder Pvt. Ltd [2006 (8) TMI 105 - GUJARAT HIGH COURT] and after considering the decision of ITAT Mumbai Bench as cited above, we set aside the order of the CIT(A) and consider that in the case of the assessee any income derived was stock would be income from business and not income from property. Thus we set aside the order of the CIT(A) and consider that in the case of the assessee any income derived was stock would be income from business and not income from property, therefore, allow the appeal of the assessee. Accordingly the appeal of the assessee is allowed.
|