ITO, Agra V. Shri Rakesh Agarwal, Agra

ITA 343/AGR/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6922 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 28-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: MAHESH AGARWAL
• Keywords: Capital asset; Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 343/AGRA/2009 ASSTT. YEAR : 2006-07 INCOME-TAX OFFICER, VS. SHRI RAKESH AGARWAL, 1 (3), AGRA. 33/67/2, AJMER ROAD, AGRA(PAN: ABHPA 1302 M) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA, JR. D.R. FOR RESPONDENT : SHRI MAHESH AGARWAL, C.A. DATE OF HEARING : 23.11.2011 DATE OF PRONOUNCEMENT : 23.11.2011 ORDER PER BENCH: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 11.06.2009 PASSED BY THE LEARNED CIT(A)-I, AGRA ON THE FOLLOWI NG GROUNDS : 1. THAT THE CIT(A)-1, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.40,79,111/- BEING LONG-TERM CAPITAL GAIN TREATED AS INCOME FROM BUSINESS, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE. 1(A). IN DOING SO, THE LD. CIT(APPEALS)-1, AGRA HA S ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION ON THE GROUND THAT T HE ASSESSEE WAS JUSTIFIED IN SHOWING THE IMPUGNED INCOME AS TAXABLE UNDER THE HE AD LONG TERM CAPITAL GAIN. 2. THAT THE ORDER OF THE CIT(A)-1, AGRA BEING ERRO NEOUS IN LAW AND ON FACTS BE SET-ASIDE AND THAT THE ORDER OF THE ASSESS ING OFFICER BE RESTORED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD PURCHASED A LAND ADMEASURING 544 SQ. YARDS IN THE YEAR 1978. HIS TWO BROTHERS, NAMELY SH RI PRAHLAD KUMAR AGARWAL AND SHRI BRIJ 2 MOHAN AGARWAL WERE ALSO OWNERS OF THE ADJOINING LAN DS ACQUIRED BY THEM IN THE YEAR 1978 BY WAY OF PURCHASE AND IN 1982 BY WAY OF INHERITANCE. THE ASSESSEE ENTERED INTO A BUILDERS AGREEMENT WITH M/S. SAAR INDUSTRIES LTD. FOR CONSTR UCTION OF COMMERCIAL COMPLEX ON THE SAID PLOT OF LAND IN THE YEAR 2002. A MEMORANDUM OF UNDE RSTANDING WAS EXECUTED BETWEEN THE ASSESSEE AND THE BUILDER WHEREBY THE BUILDER WAS TO CONSTRUCT A COMPLEX BY USING ITS OWN SKILL, LABOUR, MATERIAL AND FUND AND WAS TO BEAR ALL THE C OSTS AND EXPENSES. AFTER COMPLETION OF THE CONSTRUCTION, BUILDER WAS TO GET 1/3 RD OF SEALABLE AREA TOWARDS HIS INVESTMENT AND PROFIT AND THE REST 2/3 WAS TO REMAIN WITH THE OWNERS OF LAND, I.E ., THE ASSESSEE AND HIS TWO BROTHERS AS THEIR INVESTMENT IN LAND AND PROFIT. THE LD. ASSESSING OF FICER IN THE AFORESAID FACTS AND AFTER CONSIDERING VARIOUS CONTENTIONS OF THE ASSESSEE, C ONCLUDED THAT THE ASSESSEE WAS ENGAGED IN THE COMMERCIAL ACTIVITIES AND THE IMPUGNED RECEIPTS OF SALE WAS ASSESSED AS INCOME FROM BUSINESS AS AGAINST THE CLAIM OF ASSESSEE MADE U/S. 54EC OF THE ACT AS CAPITAL GAIN. THE ASSESSEE WENT IN FIRST APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE IMPUGNED ORDER DATED 11.06.2009 ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE SAME, THE REVENUE HAS FILED THE PRESENT APPEAL. 3. THE LEARNED DR RELIED UPON THE ORDER OF THE ASSE SSING OFFICER AND STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS WRONGLY DELETED THE ADDITIO N OF RS.40,79,111/- WITHOUT APPRECIATING THE FACTS OF THE CASE NARRATED BY THE ASSESSING OFFICER . 4. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED BRIEF WRITTEN SUBMISSIONS AND COMPILATION OF VARIOUS DECISIONS RENDERED BY VARIOU S BENCHES OF ITAT, HIGH COURTS AND SUPREME COURT. HE HAS VEHEMENTLY CONTENDED THAT THE ISSUE IN DISPUTE IS COVERED BY THE DECISION OF ITAT, MUMBAI G BENCH IN THE CASE OF ITO VS. SI TARAM CHAMARIA & ANR., REPORTED IN (2006) 3 6 SOT 594 (MUM.) WHICH HE HAS ATTACHED IN THE PAPER BOOK AT PAGE NO. 1 TO 6. IT IS ALSO CONTENDED THAT BY ENTERING INTO BUILDERS AGREEMENT , THE ASSESSEE DID NOT EMBARK UPON ANY BUSINESS ACTIVITY. BUSINESS POSTULATES SERIES OF AC TIONS RIGHT FROM PLANNING TO EXECUTION WITH INTENT TO EARN PROFIT FROM CONTINUED BUYING AND SEL LING ACTIVITIES. RELYING UPON DECISION OF HONBLE APEX COURT IN THE CASE OF SAROJ KUMAR MAZUM DAR VS. CIT, 37 ITR 242 (SC), THE LD. COUNSEL STATED THAT AN ISOLATED TRANSACTION OF PURC HASE OF LAND THAT TOO SOME 25 YEARS BACK COULD NOT BE THE STARTING POINT OF BUSINESS ACTIVITY. HE, THEREFORE, SUBMITTED THAT THE ASSESSEE HAD NO INTENTION TO ENTER INTO BUSINESS ACTIVITIES OF REAL ESTATE. IT IS FURTHER CONTENDED THAT THE LD. CIT(A ) HAS CONSIDERED ALL THE FACTS OF THE CASE IN RIGHT P ERSPECTIVE AND HAS RELIED UPON THE DECISION OF MUMBAI BENCH (SUPRA). IT IS ALSO CONTENDED THAT THE CASES OF ASSESSEES BROTHERS WHO WERE ALSO PARTIES IN THE SAID MOU, HAVE BEEN COMPLETED U/S. 1 43(3) AND THOSE CASES, INCOME FROM THE SALE OF SAID COMPLEX AREA HAS BEEN ASSESSED AS LONG-TERM CAPITAL GAIN. IT IS ALSO SUBMITTED THAT THE FACTS OF THE CASE NOWHERE WARRANT TO HOLD THAT THE CONSIDERATION RECEIVED BY THE ASSESSEE WAS IN THE NATURE BUSINESS INCOME. HE REQUESTED THAT IN VI EW OF THE DECISION OF ITAT, MUMBAI BENCH (SUPRA), THE PRESENT APPEAL FILED BY THE DEPARTMENT MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE BEFORE US ESPECIALLY THE ORDER PASSED BY THE ITAT, MUMBAI G BENCH IN THE C ASE OF ITO VS. SITARAM CHAMARIA & ANR. (SUPRA). FOR THE SAKE OF CONVENIENCE, THE CONCLUDIN G PARA NO. 16 & 17 OF THE SAID ORDER IS REPRODUCED AS UNDER : 16. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE AGREEMENT ENTERED INTO BY BOTH THE ASSESSEES. AS PER DEVELOPMENT AGREEMENT, THE DEVELOPER, NAMELY, M/S V INAYAK DEVELOPERS WAS TO DEVELOP THE LAND TO CONSTRUCT THE BUILDING AS PER APPROVED PLAN AND SELL THE BUILDING CONSTRUCTED THEREON TO THE FLAT OWNERS. IT WAS TO PASS 30 PER C ENT OF THE SALE CONSIDERATION OF THE FLAT CONSTRUCTED TO THE ASSESSEE AS THE SALE CONSIDERATI ON OF THE LAND TRANSFERRED. FROM THE 4 PERUSAL OF VARIOUS CLAUSES OF THE DEED, IT IS CLEAR THAT AS IN 1993, THE ASSESSEE HAD ONLY GRANTED THE RIGHT OF A LICENCE TO THE DEVELOPER TO CARRY OUT THE WORK OF CONSTRUCTION. THE SALES TOOK PLACE ONLY WHEN THE TRANSFER OF THE FLAT HAD TAKEN PLACE BY VIRTUE OF TRIPARTITE AGREEMENTS ENTERED INTO BY THE ASSESSEE AS THE OWNE R, THE DEVELOPER AND THE FLAT OWNER. TILL SUCH TIME, THE ASSESSEE CONTINUED TO OWN THE S AID LAND AS CAPITAL ASSET AS SHOWN IN THE WT AND IT RETURNS. IN THE SALES AGREEMENT, THE RIGHT OF THE ASSESSEE AS OWNER HAS BEEN DULY RECOGNIZED. IN THE ASSESSMENT ORDER, THE AO PRIMA FACIE TOOK THE VIEW THAT THE ASSESSEE HAS INDULGED IN AN ADVENTURE IN THE NATURE OF TRADE AS THE SALE CONSIDERATION OF THE LAND WAS NOT FIXED AND THE LAND WAS NOT EVEN RE GISTERED ON TRANSFER. IT IS PERTINENT TO NOTE THAT THE LAND HAS NOT BEEN REGISTERED IN THE N AME OF THE FLAT OWNER OR CO-OPERATIVE BODY EVEN ON SOME COMPULSIONS, BUT SO FAR AS THE AS SESSEE IS CONCERNED, THE POSSESSION OVER THE SAID LAND HAS BEEN GIVEN TO THE FLAT OWNER S BY VIRTUE OF THE AGREEMENT ENTERED INTO WITH THE FLAT OWNERS BY THE DEVELOPERS AND THE ASSESSEE AS THE LAND OWNER JOINTLY. IN VIEW OF THIS, SO FAR AS THE TRANSFER IS CONCERNED, THE POSITION OF IMMOVABLE PROPERTY, THE SAID TRANSFER HAS BEEN COMPLETED IN TERMS OF S. 2(4 7)(V) OF THE IT ACT IN WHICH AGREEMENT WITH THE FLAT OWNER HAS BEEN ENTERED INTO. THE ASSE SSEE HAS NOT INDULGED IN ANY ADVENTURE IN THE NATURE OF TRADE OF DEVELOPMENT OF LAND IN QU ESTION BECAUSE THE FACTS OF THE ASSESSEE ARE IDENTICAL WITH THAT OF MADRAS HIGH COURT DECISI ON IN THE CASE OF MLM. MAHALINGAM CHETTIAR (SUPRA), WHEREIN, THE HIGH COURT HELD THAT THE DEVELOPING OF LANDS INTO BUILDING SITES WITH A VIEW TO REALIZE THE BEST PRICE WITHOUT ANYTHING MORE IS CONSISTENT WITH THE REALIZATION OF THE CAPITAL INVESTMENT AND THE SURPL US RECEIVED BY THE ASSESSEE WILL NOT BE A TRADING OR BUSINESS PROFIT. 17. IN VIEW OF THE FOREGOING AND KEEPING IN VIEW TH E TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR CONSIDERED OPINIO N, THE LEARNED CIT(A) IS LEGALLY AND FACTUALLY CORRECT IN HOLDING THAT BOTH THE ASSESSEE S HAVE NOT ENGAGED IN AN ADVENTURE RESULTING IN THEIR RECEIPTS BEING CHARGEABLE TO TAX UNDER THE HEAD 'INCOME FROM BUSINESS AND PROFESSION'. WE, THEREFORE, ENDORSE THE REASONI NG AS WELL AS CONCLUSION OF THE CIT(A) AND REJECT BOTH THE APPEALS OF THE REVENUE. 6. KEEPING IN VIEW THE AFORESAID ORDER, THE LD. CI T(A) HAS ALSO DELETED THE ADDITION IN DISPUTE. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PARA 4 OF THE IMPUGNED ORDER OF LD. FIRST APPELLATE AUTHORITY IS REPRODUCED AS UNDER : 4. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND MY OBSERVATIONS ARE AS UNDER THE APPELLANT HAS FURNISHED A DEED DATED 13.02.1978 BETWEEN SHRI KASTOORI CHAND GULATI S/O SHRI KARTAR CHAND GULATI AND APPELLANT B Y WHICH THE APPELLANT PURCHASED THE IMPUGNED PLOT OF LAND ADMEASURING 544 SQ YDS. IN KH ASRA NO. 513, MAUZA LAKSHMANPUR, PARGANA DISTT. AGRA, HARIPARVAT ROAD. THE APPELLANT ALSO FILED PHOTOCOPY OF DEED DATED 13.02.1978 EXECUTED BETWEEN SHRI DARS HAN LAL TANDON AND SHRI PRAHLAD 5 KUMAR AGARWAL, THE APPELLANTS BROTHER, BY WHICH SH RI PRAHLAD KUMAR AGARWAL PURCHASED 553 SQ YDS OF LAND SITUATED IN SAME KHASR A NO. 513, MAUZA LAKSHMANPUR, SADAR TEHSIL, DISTT. AGRA. FURTHER A DEED OF RELEAS E / RELINQUISHMENT DATED 24.04.1982 BETWEEN SHRI ANIL KUMAR AGARWAL AND SHRI BRIJ MOHAN AGARWAL, ANOTHER BROTHER OF APPELLANT WAS FILED, EVIDENCING THE FACT THAT ANOTH ER PLOT OF LAND ADMEASURING 536 SQ YDS. IN SAME KHASRA NO. 513 OF VILLAGE LAKSHMANPUR, SADAR TEHSIL HAD BEEN PURCHASED BY SMT. GAINDA DEVI, MOTHER OF APPELLANT FOR WHICH ONE SHRI ANIL AGARWAL, RELATIVE OF APPELLANT WAS THE BENAMIDAR. SMT GAINDA DEVI EXPIRE D ON 01/10/1980 LEAVING BEHIND A WILL DATES 14/1/1980, BEQUEATHING THEREIN THE SAID PLOT OF LAND TO HER SON SHRI BRIJ MOHAN AGARWAL, BROTHER OF APPELLANT. HOWEVER, SHRI ANIL AGARWAL WAS A BENAMIDAR OF SMT GAINDA DEVI, IN VIEW OF HER WILL, HE RELINQUISH ED HIS RIGHT, TITLE AND INTEREST IN THE SAID PLOT IN FAVOUR OF SHRI BRIJ MOHAN AGARWAL, BRO THER OF APPELLANT. THUS THE THREE BROTHERS NAMELY SHRI RAKESH KUMAR AGARWAL, SHRI PRA HLAD KUMAR AGARWAL AND SHRI BRIJ MOHAN AGARWAL HAD PLOTS OF LAND IN THE SAME KH ASRA NO. 513, ACQUIRED BY TWO BROTHERS BY PURCHASE OF AND ONE BY INHERITANCE. THE APPELLANT HAS STATED THAT HE ALONG WITH HIS BROTHERS INTENDED TO BUILT THEIR RESIDENCE S ON THESE PLOTS FOR THE PURPOSE OF LIVING CLOSE TO EACH OTHER. HOWEVER, AS DETAILED IN THE WR ITTEN SUBMISSIONS REPRODUCED HERE IN ABOVE, THE PLANS DID NOT FRUCTIFY. THE APPELLANT HA S CLAIMED THAT THE PLOT OF LAND CONTINUED TO BE HELD AS SUCH AS AN INVESTMENT FROM FINANCIAL YEAR 1977-78 TILL 2005-06. IN SUPPORT THEREOF, THE APPELLANT HAS FILED PHOTOCO PIES OF BALANCE SHEETS FOR FINANCIAL YEARS 1977-78, 2001-02 AND 2005-06 REFLECTING THE S AID LAND AS 61, 160 NEHRU NAGAR JAMIN KHATE NAAM. THEREFORE, I FIND MERIT IN THE APPELLANTS CONTENTION THAT THE PLOT OF LAND WAS HELD AS INVESTMENT AND NOT AS STOCK IN TRA DE AND NO ACTIVITY AT ALL WAS CARRIED OUT ON OR IN RESPECT OF THE IMPUGNED LAND FOR 27 LO NG YEARS. THE APPELLANT HAS FURNISHED HIS COMPUTATION OF INCO ME FOR FINANCIAL YEAR 2001-02 TO 2005-06 TO SHOW THAT HE HAD NO INCOME FROM LAND DEA LINGS IN ANY OF THE YEARS EXCEPT IN RESPECT OF THE IMPUGNED LAND IN ASSESSMENT YEAR 200 5-06. THE SHARE OF SALE PROCEEDS OF LAND COMPRISED IN ONE SHOP AT NEHRU NAGAR SOLD DURI NG A.Y. 2005-06 WAS INVESTED IN NATIONAL HOUSING BANK CAPITAL GAINS BOND ON 09/12/2 004. IN THE YEAR UNDER CONSIDERATION, THE ENTIRE SHARE OF SALE PROCEEDS HA S ALSO BEEN INVESTED IN SPECIFIED SECURITIES WHICH FURTHER SUBSTANTIATE THE APPELLANT S CLAIM THAT IT WAS NOT HIS INTENTION TO CARRY ON ANY ACTIVITIES IN REAL ESTATE. THE AO HAS OBSERVED THAT THE WHOLE ARRANGEMENT OF S HARING THE SALE PROCEEDS WITH THE BUILDER M/S SAAR INDUSTRIES LTD. GOES TO SHOW THAT THE APPELLANT HAS DONE BUSINESS OF CONSTRUCTION OF SHOPS WITH THE HELP OF THE BUILDER AND HE IS ALSO A PARTNER THEREIN WITH THE FIXED SHARING RATIO IN THE PROFIT. HOWEVER, THE APP ELLANT HAS OBJECTED TO SUCH VIEW, CLAIMING THAT THE MOUS WERE DRAWN UP TO SAFEGUARD H IS INTEREST AND THE INTEREST OF HIS BROTHERS FOR FEAR OF LAND GRABBING. THERE IS NO EV IDENCE OF ACTIVE PARTICIPATION BY THE APPELLANT AND HIS BROTHERS IN THE COMMERCIAL ACTIVI TIES OF DEVELOPMENT AND SALE WHICH IS EVIDENT FROM THE MOU DATED 18/10/2002, THE RELEVANT CLAUSES OF WHICH ARE REPRODUCED BELOW - 2. THAT THE FOLLOWING TERMS SHALL ALWAYS BE DEEM ED TO BE SETTLED TERMS NO. 10, 11, 12 AND 13 OF THE MOU DATED 07/08/2002 FROM THE VERY INCEPTION AND COMMENCEMENT OF MOU DATED 07/08/2002 6 10. THAT THE ENTIRE SALEABLE SPACE WILL BE SOLD JO INTLY BY BOTH THE PARTIES. OUT OF THE SALE PROCEEDS SO RECEIVED THE FIRST PARTY SHALL BE ENTITLED TO GET 2/3RD SHARE TOWARDS RECOVERY OF ITS COST OF LAND AND PROFITS AN D SECOND PARTY SHALL BE ENTITLED TO GET 1/3RD SHARE TOWARDS RECOVERY OF HIS INVESTME NT AND PROFITS. THUS, THE APPELLANT NOT HAVING CARRIED OUT ANY ACTI VITY IN RESPECT OF THE IMPUGNED LAND, HAS REALIZED ONLY HIS INVESTMENT IN THE LAND AND PR OFITS THEREON. IN VIEW OF THESE FACTS, THE ARGUMENTS OF THE APPELLANT ARE FOUND TO BE TENABLE. THE APPELLANT HAS CLAIMED THAT THE IMPUGNED LAND WA S PURCHASED AS FAR BACK AS IN 1978 WITH THE INTENTION TO HOLD THE SAME AND THERE WAS N O INTENTION TO PURCHASE AND SELL LAND AS EVIDENT FROM THE FACT THAT THERE WAS NO TRANSACT ION AT ALL IN REAL ESTATE IN THE INTERIM YEARS. THE APPELLANT HAS NO BACK GROUND OF REAL EST ATE DEALINGS AT ALL AND IS ENGAGED IN TRADING IN HANDICRAFTS AND HANDLOOM ITEMS. ON PERUS AL OF AVAILABLE RECORDS, THIS CLAIM IS FOUND TO BE TENABLE. THE APPELLANT HAS CONTENDED THAT THE AO HAS TREATED THE PROFITS ARISING FROM THE SALE OF LAND AS BUSINESS PROFITS ARISING FROM AN ADVENTURE IN THE NATURE OF TRADE SINCE THE LAND WAS NOT SOLD AS SUCH BUT IN THE FORM OF CONSTRUCTED BUILDINGS (SHOPS). HOWEVER, IT IS THE BUILDER WHO DID THE CONSTRUCTION ON THE LAND AND NO T THE APPELLANT. INSTEAD OF COMPENSATING THE APPELLANT FOR THE VALUE OF THE LAN D BY PAYING THE ENTIRE CONSIDERATION AT ONCE, THE BUILDER PAID THE CONSIDERATION IN INSTALL MENTS BY CARRYING OUT CONSTRUCTION ON THE IMPUGNED LAND AND SELLING SUCH CONSTRUCTED AREA . THUS IN SUBSTANCE THE APPELLANT RECEIVED ONLY THE CONSIDERATION FOR HIS ASSET IE. T HE LAND. IN THIS CONTEXT, THE APPELLANT HAS CITED THE COMPARABLE CASE OF ITO VS SITARAM C HAMURIA & ANR., ITAT, MUMBAI G BENCH (2006) 6 SOT 594 (MUMBAI) A.Y. 1998 99 (REF ER PAGE NO 10 OF THIS ORDER). 7. AFTER HEARING BOTH THE PARTIES AS WELL AS GOING THROUGH THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY WHO HAS DELETED THE A DDITION IN DISPUTE BY RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT, MUMBAI G BENCH (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE DEVELOPMENT OF LAND INTO BUILDING SITES WITH A VIEW TO REALIZE THE BEST PRICE WITHOUT ANYTHING MORE IS CONSISTENT WITH THE REALIZATION OF THE CAPI TAL INVESTMENT AND THE SURPLUS RECEIVED BY THE ASSESSEE WILL NOT BE A TRADING OR BUSINESS PROFIT, AS HELD BY HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. MLM MAHALINGAM CHETTIAR, 107 ITR 23 6 (MAD), WHICH HAS ALSO BEEN FOLLOWED BY ITAT, MUMBAI G BENCH IN THE CASE OF ITO VS. SITARAM CHAMARIA & ANR. (SUPRA). IT IS ALSO NOTABLE THAT IN THE CASES OF ASSESSEES TWO BROTHER S, ASSESSMENTS WERE MADE U/S. 143(3) AND 7 SIMILAR RECEIPTS FROM THE SALE OF SAME COMMERCIAL C OMPLEX HAS BEEN ASSESSED AS LONG TERM CAPITAL GAIN IN THE SIMILAR CIRCUMSTANCES. IN THE I NSTANT CASE ALSO, WE DO NOT FIND ANY MATERIAL ON RECORD TO SUBSTANTIATE THE CONCLUSION OF THE LD. AS SESSING OFFICER THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS ACTIVITIES OF REAL ESTATE. WE, THER EFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. FIRST APPELLATE AUTHORITY WHO HAS ALLOWED T HE CONTENTIONS OF THE ASSESSEE AFTER FOLLOWING THE DECISION OF ITAT, MUMBAI BENCH (SUPRA). THEREFO RE, WE UPHOLD THE SAME BY DISMISSING THE APPEAL FILED BY THE REVENUE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.2011. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD NOVEMBER, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY