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TMI Blog2025 (5) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason "Addition in an earlier assessment year confirmed in appeal or has become final on recurring issue of law or fact". Accordingly, statutory notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee in response to which the assessee did not file any submission. 3. During the course of assessment proceedings the Assessing Officer noted that the case of assessee was selected for scrutiny for the AYs 2011-12 to 2015-16 on recurring issues of (i) LTCG viz., treating the LTCG declared by the assessee as business income, (ii) denial of claim of indexation, (iii) addition u/s 68 and (iv) addition under section 14A of the Income-tax Act, 1961. He further noted that the assessee has declared Rs. 4,01,10,000/- tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business income. 6. Aggrieved with such order of the Ld. CIT(A) / NFAC, the assessee is in appeal before the Tribunal by raising the following grounds: 1. On the facts and circumstances of the case and in law, the assessment as completed is illegal, invalid, violative of the principles of natural justice and deserves to be quashed as per law and in the interest of justice. 2. On the facts and circumstances of the case and in law, the AO grossly erred in treating and the CIT(A) grossly erred in confirming the transaction of sale of capital assets by the Appellant as Business Income instead of Long- Term Capital Gains offered to tax by the Appellant ignoring the fact that the assets so sold were capital assets of the Appellant and which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vivad Se Vishwas Scheme does not mean that the assessee has accepted the treatment of such transactions by the Assessing Officer in the past. Relying on various decisions, he submitted that an assessee can have two portfolios i.e. one for investment purpose and another for trading purpose. He submitted that the conduct of the assessee in the instant case shows that the properties so held for more than 7 and 12 years respectively are not meant for trading purposes but for investment purposes and therefore, the gain that has arisen to the assessee has to be taxed as long term capital gain and not as business income being adventure in nature of trade. 9. The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties at Rs. 2,18,69,120/- and the expenses on such transfer at Rs. 9,96,064/-. 11. It is the submission of the Ld. Counsel for the assessee that the two flats were held for approximately 7 years while the plot was held for approximately 12 years. It is also his submission that various Courts have held that the assessee can maintain two portfolios i.e. one for investment purpose and another for trading purpose. It is also his submission that merely because the assessee in the past, to avoid protracted litigation opted for Vivad Se Vishwas Scheme does not mean that the assessee has accepted the treatment given by the Assessing Officer treating such transactions in purchase and sale of properties as business income / adventure in nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9 & 10) 5) AY 2013-14-I have filled all the due forms under Vivad se Vishwas scheme. I have received Form No 5 towards full and final settlement of tax under Section 5(2) read with Section 6 of the Direct Tax Vivad Se Vishwas Act, 2020, after all the taxes are paid and withdrawn the appeal. (Necessary documents are attached 11 & 12) 6) AY 2014-15-I have filled all the due forms under Vivad se Vishwas scheme. I have received Form No 5 towards full and final settlement of tax under Section 5(2) read with Section 6 of the Direct Tax Vivad Se Vishwas Act, 2020, after all the taxes are paid and withdrawn the appeal. (Necessary documents are attached Annexure 13 & 14) 7) AY 2015-16 I have filled all the due forms under Vivad se Vishwas sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and the assessee has paid all the taxes. This shows that the assessee is continuously engaged in trading of properties and therefore, we do not find any infirmity in the order of the Ld. CIT(A) / NFAC in confirming the action of the Assessing Officer in treating such purchase and sale of properties as business income. We find the Ld. CIT(A) / NFAC has given a finding also that all the immovable properties were shown by the assessee under investment in earlier as well as present financial year therefore, the claim of the assessee that he was maintaining two separate portfolios is not correct. The Ld. Counsel for the assessee also could not bring any material before us to substantiate that the assessee is maintaining two separate portfoli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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