Fort Properties Pvt. Ltd. v. CIT and CIT v. Fort Properties Pvt. Ltd.

ACIT 28 (2), NAVI MUMBAI vs. M/S NEEL SIDDHI DEVELOPERS, NAVI MUMBAI

Bench: Shri Amit Shukla, Jm & Shri S Rifaur Rahman, Am आयकरअपीलसं./ I.T.A. No.30/Mum/2020 (निर्धारणवर्ा / Assessment Year: 2011-12) The Assistant Commissioner M/S Neel Siddhi Developers 2Nd Floor, The Emerald Plot No. Of Income Tax 28(2), 195/B, Sec-12, Vashi, Navi Mumbai बिधम/ Mumbai- 400 703 Room No.307, 3Rd Floor, Tower Vs. No.6, Vashi Railway Station Complex, Navi Mumbai- 400 703 स्थायीलेखासं./जीआइआरसं./ Pan No. Aagfn2744N (अपीलाथी/Appellant) (प्रत्यथी / Respondent) :

…the case is to be seen to determine whether the income is capital gain or business income No one test or formula can be applied as a thumb rule. The same sentiment has been echoed by the Mumbai High Court in the case of Fort Properties (P) Ltd vs. CIT (1994) 208 ITR 232 (Bom.) wherein the Hon'ble Mumbai High Court treated the loss on sale of property classified as "stock in trade" as "capital loss" instead of "business loss". In the present case, the Department had taken a stand that even if the asset was classified as "stock in trade" yet the loss on its sale is not "business loss" but is a "capital loss". The…

KUTCH DEVELOPMENT ORGANISATION-HOPE 1000,MUMBAI vs. C.I.T.13, MUMBAI

In the result, both appeals of the assessee i

Bench: Shri M.Balaganesh, Am & Shri Ram Lal Negi, Jm M/S Kutch Development Vs. Cit, City-13, Mumbai Organisation-Hope 1000 309/310, Veena Chambers, Dana Bunder, Masjid Bunder, Mumbai-400009 Pan No.Aaaak 0225 E (Appellant) .. (Respondent) & M/S Kutch Development Vs. Ito13(2)(4), Mumbai Organisation-Hope 1000 309/310, Veena Chambers, Dana Bunder, Masjid Bunder, Mumbai-400009 Pan No. Aaaak 0225 E (Appellant) .. (Respondent) Assessee By Shri Vipul Joshi, Ar Revenue By Shri B. Srinivas, Citdr Mrs. Jathilakshmi Nayak, Dr Date Of Hearing 10/05/2019 Date Of Pronouncement 29/05/2019

…sessee. In any case, the object clause of the association is not determinative of the activity carried on by the assessee. Reliance in this regard is placed on the decision of Hon‟ble jurisdictional High Court in the case of Fort Properteis (P.) Ltd. Vs. CIT, 208 ITR 232. 18. In view of the aforesaid observations and by placing reliance on the various judicial precedents, cited hereinabove, we hold that the ld. CIT has erred in invoking the provisions of Section 263 of the Act, in the instant case of the assessee and we hereby quash the proceedings 13 ITA Nos.2629/Mum/12 & ITA No.236/Mum/2014 M/s Kutch Developme…

DCIT CIR 3(3), MUMBAI vs. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA LTD, MUMBAI

In the result, appeal of the assessee is partly allowed

Bench: Shri G.S. Pannu & Shri Pawan Singh

…the principle laid down in Commissioner of Income-tax v. Chandulal Keshavlal & Co. [1960] 38 ITR 601 (SC) and (iv) the principle laid down in Kedarnath Jute Mfg. Co. Ltd., 82 ITR 363 (S.C.), Sutlej Cotton Mills Ltd., 116 ITR 1 (S.C.), Fort Properties P. Ltd., 208 ITR 232 (Bom.) and Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 (S.C.) wherein it has been held that deductions/allowances are to be made as per provisions of law and not as per entries in the books of account of the assessee.” 12. Insofar as the Ground of appeal no. 1 is concerned, the same relates to the deduction on account of amortisat…

DCIT CIR 3(3), MUMBAI vs. SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA LTD, MUMBAI

In the result, appeal of the assessee is partly allowed

Bench: Shri G.S. Pannu & Shri Pawan Singh

…the principle laid down in Commissioner of Income-tax v. Chandulal Keshavlal & Co. [1960] 38 ITR 601 (SC) and (iv) the principle laid down in Kedarnath Jute Mfg. Co. Ltd., 82 ITR 363 (S.C.), Sutlej Cotton Mills Ltd., 116 ITR 1 (S.C.), Fort Properties P. Ltd., 208 ITR 232 (Bom.) and Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 (S.C.) wherein it has been held that deductions/allowances are to be made as per provisions of law and not as per entries in the books of account of the assessee.” 12. Insofar as the Ground of appeal no. 1 is concerned, the same relates to the deduction on account of amortisat…

SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA,MUMBAI vs. DCIT RG 3(3), MUMBAI

In the result, appeal of the assessee is partly allowed

Bench: Shri G.S. Pannu & Shri Pawan Singh

…the principle laid down in Commissioner of Income-tax v. Chandulal Keshavlal & Co. [1960] 38 ITR 601 (SC) and (iv) the principle laid down in Kedarnath Jute Mfg. Co. Ltd., 82 ITR 363 (S.C.), Sutlej Cotton Mills Ltd., 116 ITR 1 (S.C.), Fort Properties P. Ltd., 208 ITR 232 (Bom.) and Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 (S.C.) wherein it has been held that deductions/allowances are to be made as per provisions of law and not as per entries in the books of account of the assessee.” 12. Insofar as the Ground of appeal no. 1 is concerned, the same relates to the deduction on account of amortisat…

SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA,MUMBAI vs. DCIT RG 3(3), MUMBAI

In the result, appeal of the assessee is partly allowed

Bench: Shri G.S. Pannu & Shri Pawan Singh

…the principle laid down in Commissioner of Income-tax v. Chandulal Keshavlal & Co. [1960] 38 ITR 601 (SC) and (iv) the principle laid down in Kedarnath Jute Mfg. Co. Ltd., 82 ITR 363 (S.C.), Sutlej Cotton Mills Ltd., 116 ITR 1 (S.C.), Fort Properties P. Ltd., 208 ITR 232 (Bom.) and Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 (S.C.) wherein it has been held that deductions/allowances are to be made as per provisions of law and not as per entries in the books of account of the assessee.” 12. Insofar as the Ground of appeal no. 1 is concerned, the same relates to the deduction on account of amortisat…

SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA,MUMBAI vs. DCIT CIR 3(3), MUMBAI

In the result, appeal of the assessee is partly allowed

Bench: Shri G.S. Pannu & Shri Pawan Singh

…the principle laid down in Commissioner of Income-tax v. Chandulal Keshavlal & Co. [1960] 38 ITR 601 (SC) and (iv) the principle laid down in Kedarnath Jute Mfg. Co. Ltd., 82 ITR 363 (S.C.), Sutlej Cotton Mills Ltd., 116 ITR 1 (S.C.), Fort Properties P. Ltd., 208 ITR 232 (Bom.) and Tuticorin Alkali Chemicals & Fertilizers Ltd., 227 ITR 172 (S.C.) wherein it has been held that deductions/allowances are to be made as per provisions of law and not as per entries in the books of account of the assessee.” 12. Insofar as the Ground of appeal no. 1 is concerned, the same relates to the deduction on account of amortisat…

DCIT 8(2), MUMBAI vs. HEXAWARE TECHNOLOGIES LTD, NAVI MUMBAI

In the result appeal filed by revenue is dismissed whereas Cross objection filed by assessee is allowed in part for statistical purposes

…counts of an assessee or the description given to a particular transaction or any assets or liability in its accounts is not conclusive. It is necessary to consider the true nature of the transaction or assets or liability" • Fort Properties Pvt. Ltd. vs CIT {208 ITR 232} (Bom) "It is well-settled that the way in which entries are made by an assessee in his books of account is not determinative of the question whether the asset was held as a capital asset or stock-in- trade. The assessee may, by making entries which are not in conformity with the facts of the case or the proper accountancy principles, conceal the…

ARIHANT CONSTRUCTION,MUMBAI vs. ASST CIT 18(1), MUMBAI

In the result, appeal of assessee is allowed in part

…ses rather than mere entry in books of accounts. In this regard we place reliance upon the following decisions: a) CIT Vs. Hitashi Estates Ltd [313 ITR 393](Delhi) b) CIT Vs. Pai Provision Stores [203 Taxman 196](Kamataka) c) Fort Properties Pvt. Ltd Vs. CIT [208 ITR 232] (Bombay) 13. In view of above facts and circumstances as well as legal position, we direct the AO to treat the gains on sale of Badlapur Land as LTCG in place of business income. 14. Next grievance of the assessee relates to disallowance of Rs.15 lakhs incurred for transfer of property at Badlapur. From the record we found that payment has been…