TMI Blog2013 (11) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration received by these co-owners was on account of sale of capital asset – Decided against the Revenue. - I.T.A. No.7639/Mum/2010, I.T.A. No.8177/Mum/2010 - - - Dated:- 13-11-2013 - Shri B. R. Mittal,(JM) And Rajendra (AM),JJ. For the Petitioner : Shri Surendra Kumar For the Respondent : Shri Sunil Chopra ORDER Per Bench: These Cross-appeals are filed by department and the assessee against order of ld. CIT(A) dated 31.8.2010 for assessment year 2003-04. 2. The only issue raised by department is as to whether ld CIT(A) is justified to accept the claim of the assessee that consideration received by assessee in respect of property 'Indraprastha' is to be assessed under the head "capital gains" and not "business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the assessee's own case for Assessment Year 2004-05, order dated 14.9.2012 (supra) as under : "It is relevant to state that assessee is co-owner of the property 'Indraprastha' being 6.25% share. The said property was inherited by the co-owners in the year 1938. The family entered into an memorandum of understanding with Godrej Properties Investment Ltd (GPIL) to construct the said property for residential purposes after demolish the old bungalow vide agreement dated 12.1.2000. They received Rs.88.30 lakhs under the above arrangement. Out of that amount, Rs.80 lakhs was received in the assessment year 2003-04 and same was treated as capital gains. The balance amount of Rs.8.30 lakhs was received by the co-owners in the accounting yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d share, right title and interest in the property, i.e. piece or parcel of land with bungalow consisting of ground and one upper floor and separate structure being garage with servant quarters on the upper floor standing thereon, situate, lying and being at Prem Narayan Chowk, Linking Road, Santacruz (W), Mumbai. The assessee, Mrs Kailash Prem Narayen, was having 25% undivided share and the remaining cowers were having 6.25% each as undivided share. GPIL was appointed as Project Manager who agreed to execute and complete the construction of proposed building on the said property and on behalf of the owners by deplaning the proper building, carrying out construction of the same marketing the same and if so required, raising finance for carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set. These co-owners got constructed the building comprising of many flats for their residential purposes. Therefore, an agreement was entered into with GPIL. GPIL constructed the building as per agreed terms. Three flats were sold for paying the cost of construction to GPIL. Therefore, no doubt remains that the character of these asset, which was capital in nature, remained the same even after construction. The predecessor of the ld CIT(A) has given a categorical finding in his order for the assessment year 2003-04 that the asset is capital in nature. The operative part of that order has been recorded by the CIT(A) in his order, which also forms part of this order. The Findings contained therein are very clear which prove that the sale con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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