TMI Blog2023 (2) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital gain. Being so, lower authorities are not justified to treat the profit from same Ramya Residency as income from business instead of claim of assessee as income from short term capital gain/long term capital gain as the case may be in the assessment order passed u/s 143(3) - Accordingly, we direct the AO to treat the income from profit earned from the sale of flat in Ramya Residency through JDA as income from short term capital gain/long term capital gain only instead of income from business. - ITA No.4/Bang/2023 - - - Dated:- 16-2-2023 - Shri N.V. Vasudevan, Vice President And Shri Chandra Poojari, Accountant Member For the Appellant : Shri Bharath L., A.R. For the Respondent : Dr. Shankar Ganesh K., D.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act was concluded vide an order under section 143(3) of the Act dated 28.03.2016 by treating income from LTCG from sale of residential flats under JDA and LTCG from sale of agricultural plots as 'Income from Business'. In this regard, the Assessing Officer arrived at a taxable income of Rs. 3,85,29,300/- and a tax demand of Rs. 1,09,19,590/-. While treating the income as Business Income, the ld. AO has not examined or provided cogent reasoning as to whether the income arising from sale of asset (flats from JDA and land received from inheritance) was held as a 'capital asset' or as a 'stock in trade'. Aggrieved by the assessment order, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to file Form 35 in electronic mode. In compliance with the directions of the Tribunal, the assessee has duly filed Form 35 in electronic mode on 09.05.2019. Pursuant to this, Tribunal vide its orders on 17.05.2019 directed CIT-A to adjudicate the issues on merits. The matter was subsequently centralized the Appellate jurisdiction vested with the Commissioner of Income-tax (Appeals) - 11, Bangalore ('LAA'). Pursuant to the directions of the Tribunal, hearings were conducted by the ld. CIT(A) on various dates, detailed submissions and explanations were provided by the authorized representative of the assessee. The ld. CIT(A) however did not consider the submissions of the assessee and dismissed the appeal by passing the order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal of estoppel and consistency which has been affirmed in the following rulings: a. Dalmia Promoters Developers (P.) Ltd. (151 Taxman 202) - refer page 1 of the CLC. b. NeoPoly Pack (P.) Ltd. (112 Taxman 363)-refer page 8 of the CLC. c. Man Mohan Kedia (50 taxmann.com 237) - refer page 10 of the CLC. d. Sunil Kumar Ganeriwal (16 taxmann.com 311)- refer page 15 of the CLC. 3.2 Hence, the ld. A.R. submitted that applying the above principles of estoppel and consistency given the identical facts, the consistent position as adopted in the subsequent proceedings as capital gains is the appropriate treatment. 3.3 The ld. A.R. further submitted that if a contrary view is taken, it would result in the income of the same transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Ramya Residency project has been accepted by the department as income from short term capital gain. Being so, lower authorities are not justified to treat the profit from same Ramya Residency as income from business instead of claim of assessee as income from short term capital gain/long term capital gain as the case may be in the assessment order passed u/s 143(3) of the Act dated 28.3.2016. Accordingly, we direct the AO to treat the income from profit earned from the sale of flat in Ramya Residency through JDA as income from short term capital gain/long term capital gain only instead of income from business. Ordered accordingly. 4.2 Since we have decided the impugned issue in ground Nos.2(b) and 3, other grounds become infructuou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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