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TMI Blog2013 (11) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... al gains" and not "business income". 3. Ld D.R. relied on order of AO. However, ld A.R. submitted that the issue is covered in favour of the assessee by the decision of ITAT dated 11.1.2010 in the case of co-owner namely Mrs. Kailash Premnarayan for assessment year 2004-05 in ITA No.6293/Mum/2007 in the appeal filed by the department and in ITA No.6133/Mum/2007 appeal filed by the assessee, wherein it was held that transaction is not an adventure in the nature of trade and the entire income earned by the assessee as well as other family members is taxable as capital gains. A copy of the said order is placed on record. Ld. DR has not disputed the above contention of ld.AR that the issue on similar facts in the case of co-owner of the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2004-05 considered the said arrangement as adventure in the nature of trade and not treated the amount received as long term capital gain. The AO stated that the family members converted capital assets into stock-in-trade and, accordingly, he computed the income of the co-owners as capital gain u/s.45(2) of the Act. The AO bifurcated the profit from construction activity and capital gain on conversions of capital assets as per section 45(2) of the Act. However, ld CIT(A) allowed the appeal of assessee by following order passed by him in the case of co-owner Mrs.Kailash Premnarayan by holding that the transaction is not an adventure in the nature of trade and entire income earned by assessee as well as co-owners is taxable as cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Project Manager from the share of net realization/surplus from the property constructed by GPIL as per clause 12 of the agreement entered into. As stated above, the building was constructed and all the co-owners were possessed with one flat each. Those flats were used for their residential purposes. Three flats were sold by these co-owners for the purpose of paying cost of construction including loans taken by GPIL on behalf of these co-owners. Accordingly these co-owners computed capital gains on sale of these three flats. For the purpose of clarification, it may be mentioned here that these three flats sold were belonging to all the co-owners as in the entire building the co-owners were having undivided interest. Accordingly, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the department fail and are rejected." 4. In view of above, we are of the considered view that the issue raised in the appeal of the department is covered in favour of the assessee by the decision of the Tribunal in assessee's own case. Hence, Grounds taken by department are dismissed. 5. It is relevant to state that at the time of hearing ld. AR fairly stated that if the appeal of the department is dismissed, then the appeal of the assessee will become infructuous and may be dismissed accordingly. 6. Since we have dismissed the appeal of the department, the appeal of the assessee, is dismissed. 7. In the result, the appeal of the Revenue and the appeal filed by assessee both are dismissed. Order pronounced in the open court on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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