SHRI SHAILESHBHAI V. MANGUKIA,SURAT vs. THE INCOME TAX OFFICER, WARD-3(1)(2), SURAT

Per contra, the ld. Sr. D.R. relied on the order of the Ld. CIT(A) and submitted that 9. the issue is covered by the tribunal order in appellant’s own case for the assessment year 2009-10.

We have heard the rival submissions and perused the relevant material on record. 10. We find that capital gains on sale of 7 plots is offered for taxation under the head business income. The plots which were sold during the year have been shown in closing the stock in the profit and loss account and balance sheet of opening accounting year, hence the income from sale of such plots is claimed to be taxable under the head business income and not under the head capital gains. However, the AO did not accept the assessee’s contention on the ground that assessee is not engaged in the business of real estate and thus, sale of plots by the assessee attracted capital gain. These plots were shown in the

Shaileshbhai V. Mangukia v. ITO Wd-3(1)(2) Surat /I.T.A. No.457/AHD/2017/A.Y.10-11 Page 5 of 6

financial year 2007-08, as fixed assets in the balance sheet and not as a stock in trade. The AO noted that the arguments advanced by the assessee are not found tenable. These are neither fully convincing not fully satisfactory. The same argument has already been made before the Ld. CIT(A) for assessment year 2009-10 also. Nothing new facts has been brought on record or evidence before the AO to consider the same as business income. Therefore, keeping in view of the facts, the AO has made addition of income of Rs.6,84,138/- in the hands of the assessee under the head short-term capital gains. We find that the issue is duly covered against the assessee in assessee`s own case by the decision of Tribunal in I.T.A.No. 1818/Ahd/2013 A.Y. 2009-10 dated 02.05.2016. Wherein the Tribunal in para 6 has held as follows:- “ 6. We have heard both the parties Relevant facts narrated in preceding paragraphs are not repeated for the sake of brevity. Suffice to say there is no dispute that the assessee had included all these plots as fixed assets in the balance sheet of the purchaser year and there is no explanation as to how he could take hold together a different recourse by showing the very assets as a stock in trade in the impugned assessment year. It has come on record that this assessee is already involved in cement dealer the business not having any separate infrastructure and organised venture for making investment in such land deal. There is no other land transaction or similar business being proved in any preceding or succeeding assessment years. To prove such a business activity. We uphold CIT (A) `s finding under challenge in these facts and circumstances. 1st and 2nd substantial grounds raised in the instant appeal fail.” Since the facts of present appeal are same as the remaining 7 plots were sold during the year under consideration. Therefore, respectfully following the decision of Tribunal in the assessee’s

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own case, we uphold the findings recorded by the Ld. CIT(A). In view of this matter, the grounds of appeal raised by the assessee are therefore dismissed.

In the result, the appeal of the assessee is dismissed. 11.

The order pronounced in the open Court on 30.04.2019. 12. Sd/- Sd/- (H. S. SIDHU) (O.P.MEENA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Surat: Dated: 30th April,2019/opm Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat