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2022 (8) TMI 1430 - AT - Income TaxCorrect head of income - transaction of selling rights in flats by the Appellant - capital gain of business income - magnitude of transaction - HELD THAT:- Assessee being Non-resident Indian having Indian origin, intend to have enduring house property for his long-term use, as capital investment. This intention based on the set of facts cannot be denied as the assessee is not regularly resides in India. He being not present in India no intention to enter into an option of having adventure in the nature of trade as he is already employed out of India. The sole purpose of his investment in India to have property for enduring benefit either to have the rental income or to have the capital appreciation over the period of time. For this intention he has added her wife’s name in all the investment which he made, this also support the contention of the investment not an adventure in the nature of trade. Had the intention of the assessee is to enter into an adventure in the nature of trade he might have done the transaction in his name only and as he is employed at such level, he could get the loan sanctioned his name only but he preferred it to have the time as also co-owner of the property based on his intention of investment as his retirement plan and assessee never changed his intention. The property is purchased with a home loan so that both the investment and enduring benefit of the property achieved out of the income that he earns outside India. The investment made in India by the assessee in 2007-08 is owned and continue to hold for more than five and ten years with that intention only to hold it for capital investment. Merely, the assessee realised the price more then what he has invested cannot be the criteria the decide the nature of investment, the purpose and circumstance evidence to support the contentions is also required to be looked into. Since, his intention was to stay in India and invested for long term and that is why he has even invested in the property which are under construction and even not registered in his name - The decision to sale the property before registration will not change the income arising out of the capital investment made by the assessee. The real purpose and intention of the assessee is not in the trade or adventure in the nature of trade/business as he wanted his family to be secured in a house in his origin country mother land. As regards the contention that the property is not registered and even the agreement is also not registered and allotment right is not the capital investment is not correct view taken by the department. The revenue has not disputed presence of assessee in India for period of 22 days in the year under consideration and in last 5 years it is only 55 days. This information is already on the records and extracted in the assessment order at page 4. It is evident from the above that the stay of the assessee in the year under consideration is only to undertake the formality of the transaction that he has under taken in mother land India. As income is considered as capital gain and revenue failed sustenance their action that why the contrary view should be adopted in the year under consideration when the department has on the same very assessee’s case on same fact accepted the income as income under the head capital gain and even revenue also failed to substantiate that with the view and as they substantiate there is a substantial revenue leakage too. Appeal of assessee allowed.
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