vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A”JAIPUR Mk0 ,l- lhrky{eh]U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihy la-@IT(IT) A No.02/JP/2018 fu/kZkj.ko"kZ@AssessmentYears :2014-15 Shri Arun Nagar 1A, Gokul Nagar, Udaipur. cuke Vs. DCIT (International Taxation) Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AESPN6424M vihykFkhZ@Appellant izR;FkhZ@Respondent vk;djvihy la-@IT(IT)A No.04/JP/2018 fu/kZkj.ko"kZ@AssessmentYears :2012-13 DCIT (International Taxation) Jaipur. cuke Vs. Shri Arun Nagar 1A, Gokul Nagar, Udaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AESPN6424M vihykFkhZ@Appellant izR;FkhZ@Respondent CO No.41/JP/2018 (Arising out of IT(IT) A No. 04/JP/2018) fu/kZkj.ko"kZ@AssessmentYears :2012-13 Shri Arun Nagar 1A, Gokul Nagar, Udaipur. cuke Vs. DCIT (International Taxation) Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AESPN6424M vihykFkhZ@Appellant izR;FkhZ@Respondent vk;djvihy la-@IT(IT)A No. 12/JP/2019 fu/kZkj.ko"kZ@AssessmentYears :2016-17 Shri Arun Nagar cuke DCIT 2 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 1A, Gokul Nagar, Udaipur. Vs. (International Taxation) Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AESPN6424M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjl s@Assesseeby :Shri Mukesh Soni (C.A.) jktLo dh vksjls@Revenue by: Smt. Monisha Choudhary (JCIT) lquokbZ dh rkjh[k@Date of Hearing : 22/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 17/08/2022 vkns'k@ORDER PER BENCH: The assessee has filed the appeals as well as cross appeals while the department has filed an appeal whose details are as under:- Sl. No. Appeal/ CO / Department Assessment year CIT(A) Order dt. 1. IT(IT)A No. 02/JP/2018 2014-15 CIT(A)-42, Delhi 21.11.2017 2. IT(IT)A No. 04/JP/2018 2012-13 CIT(A)-1, Udaipur 04.07.2018 3. CO No. 41/JP/2018 2012-13 CIT(A)-1, Udaipur 04.07.2018 4. IT(IT)A No. 12/JP/2019 2016-17 CIT(A)-42, Delhi 24.06.2019 2. Since the issues involved in all the appeals are almost common, inter related and also have been heard together disposed of with this common order. 3 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 3. The hearing of the appeal was conducted after issue of proper notice to both the parties. 4. For deciding these appeals, we taken IT(IT)A No. 02/JP/2018 for the A.Y. 2014-15 as lead case for wherein following grounds have been raised by the assessee: “1. Under the facts and circumstances of the case and in law, Ld. CIT (Appeals) has erred in upholding assessment order dated 26.12.2016 passed u/s 143(3) of the Act, which is perverse, arbitrary and bad in law. 2. Under the facts & circumstances of the case and in law, the Ld. CIT (Appeals) has erred in confirming addition of Rs. 1,30,16,030/ by upholding the conclusion of the Ld. AO that transaction of selling rights in flats by the Appellant was adventure in the nature of trade and construing the same as business of the Appellant. 3. Under the facts & circumstances of the case and in law, the Ld. CIT (Appeals) has erred in disallowing capital loss claimed and carried forward by the Appellant as per its return of income. 4. Under the facts & circumstances of the case and in law, without prejudice to the claim of the Appellant in aforesaid grounds, the Ld. CIT (Appeals) has erred in partially allowing interest expenditure incurred by the Appellant and not allowing the loss from alleged business while treating the income from transaction of selling rights in flats as business income. 5. Under the facts and circumstances of the case and in law, Ld. CIT (Appeals) has erred in maintaining the interest liability u/s 234B of the Income Tax Act, 1961. 6. The appellant craves to alter, amend and modify any grounds of appeal.” 5. Originally the appeal was disposed by the bench vide order dated 21.05.2018. Against this orderassessee moved a Miscellaneous application 4 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar (MA) No. 148/JP/2018 for assessment year 2014-15. The co-ordinate bench of this tribunal has decided said MA of the assessee on 15.04.2019. The observation of the bench on this MA is extracted here in below for the sake brevity of the case on disposal: “3. After hearing both the parties and perusing the material available on record, we find that the Coordinate Bench in para 12 has noted two broad issues that arise for consideration in the present appeal. Firstly, whether the transaction is in the nature of investment or it is nature of “adventure in the nature of trade” and secondly, where it is held that the transaction is “adventure in the nature of trade”, whether interest cost for all the years can be clubbed together so as to arrive at the aggregate carry cost of stock-in-trade at the time the flats were sold. Thereafter, in paras 13, 14 and 15 the Coordinate Bench has discussed the second issue relating to carrying cost of the inventory. Regarding the first issue, the Coordinate Bench has held that the various decisions have been relied upon by the assessee wherein there is no singular test which has been laid down to determine whether a particular transaction is in the nature of investment or adventure in the nature of trade. Thereafter the Coordinate Bench has held that the the said issue has become purely academic and the same was deemed as not appropriate to discuss in detail. We, therefore, find the contention of the ld. AR to be correct and we accordingly recall of the order of the Coordinate Bench for the limited extent of adjudication of grounds no. 1, 2, and 3 of the assessee’s appeal except that there is no other change in the order or the findings given by the Coordinate Bench.” 6. So, considering the decision of the co-ordinate bench this appeal recalled to decide the ground no. 1, 2 & 3 which was not decided by the earlier order dated 21.05.2018 and the decision of the bench on the Ground no. 4 will remain as given in the said order. 7. Before proceeding further, pithily stated fact as culled out from the records is that the assessee is a non-resident Indian. He left India in 1986 5 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar as he employed outside India. The assessee is working with Spice Africa during the year consideration. The assessee filed his return on 28.07.2014 declaring total income of Rs. 17,54,580/- under the head interest income and loss under the head capital gain. The case was selected for scrutiny and accordingly notice u/s 143(2) on 21.09.2015 was issued and duly served upon the assessee by RPAD. 8. During the assessment proceeding, the ld. AO observed that assessee has shown Long Term Capital loss of Rs. 3,00,675/-. From the details provided by the assessee it was observed that the assessee sold his rights over two flats through sale agreement which were purchased through buyers agreement on 12.02.2008 M/s. Emaar MGF Land Limited as mentioned below: SN particulars Date of Sale Sale consideration 1. L-302, Premier Terrances, Palm Drive, Gurgaon 02.04.2013 1,45,55,500/- 2. J-1105, Premier Terrances, Palm Drive, Gurgaon 10.06.2013 1,67,57,313/- 8.1 The ld. AO further observed that none of the above flats were got registered with any competent Registration Authority and also the assessee did not even have the agreement registered with any authority. Although the flats sold were actually at higher rates then purchases but because of indexation the assessee incurred capital loss. It prima facie indicated business motive of the assessee that the assessee has shown all the sale proceeds as Long term capital gain and showed a Long term capital Loss with the benefit of Indexation and interest. But it is seen that none of the 6 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar flats sold were registered with the local authority. This shows that the assessee never intended to keep them as investments but to use them like a business asset. These two flats sold are purchased in the same year and sold in the same year. A person can make investment in one, two or maximum three residential houses. But purchasing two houses and then selling them all shows that there is business motive. Hence the assessee was asked vide show cause notice dated 16.12.2016 that as to why the income from sale of flats be assessed as business income as calculated under:- SN Particulars Sale consideration Purchase cost Amount to be charged as business income 1. L-302, Premier Terrances, Palm Drive, Gurgaon 1,45,55,500/- 87,64,469/- 57,91,031/- 2. J-1105, Premier Terrances, Palm Drive, Gurgaon 1,67,57,313/- 95,32,313/- 72,25,000/- 8.2 The ld. AR for the assessee filed a detailed reply vide letter dated 19.12.2016 objecting the proposed action of the assessing officer. The reply of the assessee is duly incorporated in the assessment order and therefore is considered but not repeated here for the sake of repetition. The ld. AO has also given his detailed observation on the submission of the assessee and finally he has formed his view that the transaction of the assessee is not of the capital gain but it is adventure in the nature of trade on the following brief contentions:- 7 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar “(a) the volume of transaction the assessee has entered into is a main criterion as discussed in the circular also. The assessee has sold two residential flats and the same are in the same Financial Year. (b) In total two flats in the same city were bought by the assessee in F.Y. 2007-08 and sold by the assessee during the previous year. (c) The volume of sale of flats by the assessee during the previous year was Rs. 3,13,12,513/- which is a substantial amount. (d) The purchase and sale of these flats was the only activity of the assessee. (e) The period of holding being very short, it was reasonable to presume that the purchase was made with an intention to resell. (f) The scale of activity was sustainable. (g) Assessee is not maintaining proper books of accounts which show the proper intention of assessee. (h) Assessee has not submitted any profit & loss account and balance sheet which show the nature of accounting in books of assessee.” 8.3 In addition, the ld. AO has relied upon the various judicial pronouncement and also differentiated the decision cited by the assessee. Based on the findings given in the assessment order he has assessed the transaction of selling of two flats of Gurgaon during the year under consideration by the assessee as adventure in the nature of trade and taxed as business income for this transaction and consider the income of the assessee from this transactions as computed here in below :- SN Particulars Sale consideration Purchase cost Amount to be charged as business income 1. L-302, Premier Terrances, 1,45,55,500/- 87,64,469/- 57,91,031/- 8 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar Palm Drive, Gurgaon 2. J-1105, Premier Terrances, Palm Drive, Gurgaon 1,67,57,313/- 95,32,313/- 72,25,000/- 1,30,16,031/- 9. As is evident the assessee was not given the benefit of interest incurred and indexation benefit available to him. He has preferred an appeal before the first appellate authority against the assessment order but remained unsuccessful. In first appeal the CIT(A) has confirmed the action of the AO by observing as under:- “6.13 It is relevant to mention here that adventure in the nature of trade has six badges. The major relevant circumstance that bear upon the identification of these “badges of trade” are as under:- "(1) The subject-matter of the realisation. — It is generally considered that a property which does not yield an income or personal enjoyment for its owner is more likely to be held for trading purposes. In this case, the flats invested by the appellant till the stage of its sale by the assessee did not yield rental income or personal enjoyment for its owner. Therefore, such flats (under construction) were more likely held for trading purposes. (2) The length of the period of ownership. - Generally speaking, property meant to be traded is realised within a short time after acquisition. However, the timing of selling the property is also dependent on the trend in the property market. Since, in this case, the real estate was in boom during 2007 to 2013, the appellant timed the sale of the property to earn maximum profit when the rates were getting into saturation phase. (3) The frequency or number of similar transactions by the same person. —The appellant has purchased 15 flats in four different years and sold eight flats to different buyers in three different years. 9 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar (4) Supplementary work on or in connection with the property realised. — In this case, the property was under construction with the builder throughout the period of holding it. (5) The circumstances that were responsible for the realisation. — As per the assessee, he had invested with an intention to let out the property to earn rent, however, he had to sell the flats in view of the change of scenario due to global recession which led to delay in completion of flats/apartments that were booked in FY 2007-08 for a period of more than six years and it was not possible for the Appellant to have the registry made in his favour. However, the plea of the assessee does not hold good because on one hand, the assessee claimed that that he had to dispose of the DLF &Emaar property invested in 2007-08 in FY 2011-12 & 2012-13 due to global recession and delay in completion and on other hand, he made investment into flats with same builder DLF in 2011-12. (6) Motive. — The motive can be inferred from surrounding circumstances, in the absence of direct evidence of the seller’s intentions. The fact of making investment after obtaining loan itself reflects that the investment is not purely with own funds but the assessee has leveraged loan and thereby has taken risk in making investment. The fres h i nv est ment made by th e assess ee i n 201 1- 12 wi th DLF bui l der clearly highlights the fallacy of argument of the assessee because on one hand, the assessee claimed that he had to dispose of the DLF & Emaar property (invested in 2007-08) in FY 2011-12 & 2012-13 due to global recession and delay in completion and on other hand, he made investment into two flats with same builder (DLF) in 2011-12. Further, as discussed above, the assessee timed his sale to earn the maximum profit. Therefore, these activities of the purchase as well as sale by the asssessee in FY 2011-12 & 2012-13 highlight the motive of the assessee to earn profit in the property market rather than earning the rental income on its completion. 6.15 It may be relevant to refer to the news report (Written by Nayeem Showkat Khan) in "Financial Express" news paper on 30/01/2014 with a heading "Real estate market in Delhi NCR up 22% in 2013", which reads as under:- "Stating that IT/ITeS remained the major occupiers contributing 50% of the total absorption, commercial space absorption in Delhi NCR witnessed 22% rise in 2013 as compared to 2012, according to a report by Colliers International. 10 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar The study reveals that 26% of the total absorption of more than 31 million sqft across top 6 cities was contributed by NCR. 'Engineering and 8FSI, together account for 25% of the total absorption. Of the 8.31 million sqft commercial lease in Delhi NCR, 70% of the space was leased in Gurgaon, 23% in Noida and the remaining 7% in Delhi. Gurgaon is expected to witness further segmentation of micro-markets in cost terms in 2014. "Gurgaon is expected to witness a lot of lease renewals in 2014 and 2015, as companies that set up offices in 2004 to 06 (the first wave of occupiers) approach the end of their lease terms," report states. However, as in 2013, sales volume and sale market of commercial space in Delhi will remain low and stressed. There was a marginal 3% Year-on-Year decrease in rentals in Delhi. Average rental values in Delhi NCR will remain stable and vacancy rate will fall marginally. "Gurgaon and Noida witnessed stable rental values during 2013 baring few micro markets such as Cyber city in Gurgaon and sector 18 in Noida which witnessed an increase of 7% and 2.5% respectively, on year on year basis," report adds" 6.16 It is evident from the above report that Gurgaon witnessed stable rental values during 2013. The above report also mentions that the commercial space absorption in Delhi NCR (which includes Gurgaon) witnessed 22% rise in 2013 as compared to 2012, according to a report by Colliers International. 6.17 In view of the above facts, it is evident that the argument taken by the appellant of global recession in real estate market does not hold good. Therefore, there was no reason for the assessee to sell the property as against the stated intention of renting out of the property on its completion. Hence, the ground of appeal is dismissed.” 10. Being aggrieved from the order of the first appellate authority the assessee has preferred this appeal before us on the grounds extracted here in above in the initial paras. 11. During the hearing of this appeal the ld. AR for assessee submitted abrief of his contentions raised in support of his grounds which were 11 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar contended before the lower authorities and on these issues written brief summary of arguments reads as under:- “1.The Appellant is a non-resident Indian since past several year as he left India in 1986 and he was employed outside India with Spice Africa during the years under consideration. Appellant has been regularly filing its return of income in India in status as Non-resident since past several years, in which income from investments, interest income and income from other sources are declared and taxes paid. 2. Assessee made investments in India from year 2007 with the object of capital appreciation and earning rental incomes, which were subsequently realized in years under consideration. The said investments were jointly held with his spouse, however, he was assessable for any income from such investments. 3. The investments made by him as being rights to acquire flats/apartments were held for considerable period of time before their transfer in the years under consideration. The agreements in respect of the same were executed by Assessee himself and not through any agent or through any Power of Attorney transactions. 4. Appellant is not carrying on any business in India as he is in full time employment outside India. Further, there is no case made out by the Department that Assessee has any fixed place of business or agent employed in India through which alleged business activities were carried out by him during the years under consideration. 5. In assessment made by Ld. AO and upheld by Ld. CIT(A), transaction of selling allotment/rights in flats/apartment were treated as stock in trade instead of capital assets and accordingly, the long-term capital loss claimed by the Appellant in his return of income filed for year under consideration was disputed and not allowed rather income was determined as business income. 6. In this regard the Appellant most respectfully submits that the right in flat/apartments acquired by the Appellant and subsequently sold by him were held and treated as investments by Assessee as intention at the time of purchase was not to trade in the same or earn profit rather intention was to earn capital appreciation, rental income or to assign some of the property for residence as and when Assessee or his family visits India or permanently settles in India in future. 7. The said intentions of keeping the capital assets as investment and not as stock in trade is evident from following facts and circumstances of the case in hand: 12 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar a) Assessee is employed outside India in South Africa as the chief executive officer of Spice VAS Africa Pte Ltd during year under consideration and was employed there during the years under consideration. b) Assessee visit to India is very minimal (55 days in Past 5 years). c) Capital assets being allotment/booking rights in flat/apartment was held for considerable period of time (more than 5 years) before their transfer/assignment in favour of prospective buyer. d) The transfer/assignment of rights in years under-consideration was effected during year under consideration on account of delay in constructions and other relevant factors prevalent at that time. e) In the returns filed by Assessee for years under consideration as well as past years, Assessee has not claimed any business loss or interest expenditures incurred over the period for loans taken. f) Returns filed by the Assessee for past years being the years of acquisition of rights in flat has been accepted as such, wherein income in the form of interest income was not adjusted against any so-called business loss/expenditures g) Buyer's Agreement with Developer and Agreement to Sale has been executed by Assessee himself. h) There are no power of attorney transaction for purchase or sale of properties under consideration. i) Capital assets have been acquired through own funds as well as bank loan being home loan. j) Investments under consideration are jointly held by Assessee with his spouse, who is also a non-resident. k) There is no frequent trading in the allotment right in each year after their acquisition without prejudice to the fact that the said right is not in the nature of commodity which is traded in the market rather of the nature of Investment which is kept for long with an intent to hold for capital appreciation and earn regular income in future, 8. As against the intention of the Assessee at the time of purchase and Assessee 's treatment of transaction as Investment in his returns of income filed, the Ld. AO has treated the transaction as business, without appreciating that there is no place of business in India of Assessee as he is full time employee and his visit to India is very minimal over the period and capital asset was held for considerable period of time before transfer and other facts and circumstances as explained 13 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar herein above. Further if the department contention is accepted that Assessee was doing business, then it is highly improbable that a Non-resident was doing business in India in joint name with his spouse who is also not a resident of India. Further, contrary stands have been taken when there is negative income (loss) from capital assets held for considerable period of time and when there is positive income (gain) from another capital assets. The summary chart in this context is submitted herewith as Annexure-1. 9. The Ld. CIT(A) is not justified in taking adverse view against the Assessee on the rationale that Assessee on one hand has transferred the properties of DLF in AY 2012-13 and on the other hand has made fresh investment in the different project of the DLF in the same AY 2012-13. The said contention does not deviate the intention of the Assessee at the time of purchase of investment which is of paramount consideration to decide the nature of transaction. Even otherwise, it is not the prerogative of assessing authority to dispute the prudence of the investors and step into their shoes, because it is always prudent for an Investor to diversify its portfolio based on their own investment criteria. Assessee out of the available option of taking money out of India has rather again invested in India, which decision cannot be taken against Assessee as relevant factor to allege the transaction as business rather than investment as it is the intention at the time of purchase of investment which is most relevant factor to decide whether the transaction is adventure in the nature of trade or Investment Transaction. 10. In support of the contentions placed on records, Assessee further would like to place its reliance on the various judgments placed on records via case compilation submitted on 26.11.2019 including the CBDT Circular 6/2016 dated 29.02.2016. The Assessee also place reliance on judgment of the Hon'ble Bombay High Court in the case of Principal Commissioner Of Income Tax-19, Mumbai Versus Jogani and Dialani Land Developers and Builders[2020] 117 Taxman.com 140 (SC), wherein the Hon'ble Hight Court Of Bombay has held that "it is always open to an assessee to hold the same class of assets as investment and also as stock-in-trade. There is no bar in law for a person dealing in land to also have investment in land". In the said judgment even in case of the dealer in land, the transaction of investment in land was considered as investment and not trade, whereas in the case of the Appellant, where all class of assets are investment only, the department is not justified to dispute the same. Further reliance is placed on judgment of Hon'ble Bombay High Court in case of Principal Commissioner of Income-tax 17, Mumbai v. Hardik Bharat Patel [2018] 100 taxmann.com 410 (Bombay). In view of the above, considering the intention of the Assessee at the time of purchase, period of holding, full time employment outside India and other relevant factors as submitted above, it is established that acquisition and transfer of rights in flats/apartments under consideration is transaction of 14 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar Investment only and not business as alleged by Department. Accordingly, it is prayed to allow the appeal of the Assessee.” 12. In addition, the ld. AR of the assessee has submitted a comparative chart of Ground raised, contention of the ld. AO/ld. CIT(A), assessee’s contention before us and supported circular/judgement related to those arguments raised before us. We deem it fit to make this comparison as Annexure-A as part of this order as we are considering that chart for disposing the grounds raised by the assessee. 13. The ld. AR of the assessee also submitted a year wise investment made by the assessee and the treatment given by the assessee and its treatment considered by the department also annexed with this order as Annexure -B. 14. The ld. AR of the assessee submitted following judicial decision and ratio decided on that judgment by the various Hon’ble Courts and the gist of the same is submitted before us to drive home the contentions raised by him which is summarized as under:- 15 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 16 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 17 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 18 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 19 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 20 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 21 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 22 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 23 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 15. The ld. AR of the assessee further placed on record an order passed pursuant to the ITAT, Jaipur bench order dated 21.05.2018 passed while deciding the ground no. 4 of the assessee whereby he submitted that the contention taken by the assessee and taken by the department has no loss to the revenue and is tax neutral transaction. The same is extracted here in below for the sake of brevity of the facts and to understand the real tax treatment and to check whether the grievance of the revenue is affected on account collection of the legitimate tax from the assessee. 24 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 16. The ld. AR of the assessee submitted that after giving effect to the order of the ITAT only on ground no. 4 the result is also loss and the same is much 25 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar higher than what is claimed in the return of income filed by the assessee originally at Rs. 3,00,675/-. Thus, in fact on the view of the department the loss is much at higher the amount than what has been claimed by the assessee. 17. In addition, the ld. AR of the assessee relied upon the circular issued by the CBDT vide its No. 6/2016 [ F.No.225/12/2016-ITA-III dated 29.02.2016. The relevant extract is as under:- “Sub-section (14) of section 2 of the Income-tax Act, 1961 ('Act') defines the term "capital asset" to include property of any kind held by an assessee, whether ,or not connected with his business or profession, but does not include any stock-in-trade or personal assets subject to certain exceptions. As regards shares and other securities, the same can be held either as capital assets or stock-in-trade/trading assets or both. Determination of the character of a particular investment in shares or other securities, whether the same is in the nature, of a capital asset or stock-in-trade, is essentially a fact-specific determination and has led to a lot of uncertainty and litigation in the past. 2. Over the years, the courts have laid down different parameters to distinguish the shares held as investments from the shares held as stock- in-trade. The Central Board of Direct Taxes ('CBDT') has also, through Instruction No. 1827, dated August 31, 1989 and Circular No. 4 of 2007 dated June 15, 2007, summarized the said principles for guidance of the field formations. 3. Disputes, however, continue to exist on the application of these principles to the facts of an individual case since the taxpayers find it difficult to prove the intention in acquiring such shares/securities. In this background, while recognizing that no universal principal in absolute terms can be laid down to decide the character of income from sale of shares and securities (i.e. whether the same is in the nature of capital gain or business income), CBDT realizing that major part of 26 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar shares/securities transactions takes place in respect of the listed ones and with a view to reduce litigation and uncertainty in the matter, in partial modification to the aforesaid Circulars, further instructs that the Assessing Officers in holding whether the surplus generated from sale of listed shares or other securities would be treated as Capital Gain or Business Income, shall take into account the following — (a) Where the assessee itself, irrespective of the period of holding the listed shares and securities, opts to treat them as stock-in-trade, the income arising from transfer of such shares/securities would be treated as its business income, (b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years; (c) In all other cases, the nature of transaction (i.e. whether the same is in the nature of capital gain or business income) shall continue to be decided keeping in view the aforesaid Circulars issued by the CBDT. 4. It is, however, clarified that the above shall not apply in respect of such transactions in shares/securities where the genuineness of the transaction itself is questionable, such as bogus claims of Long Term Capital Gain/Short Term Capital Loss or any other sham transactions. 5. It is reiterated that the above principles have been formulated with the sole objective of reducing litigation and maintaining consistency in approach on the issue of treatment of income derived from transfer of shares and securities. All the relevant provisions of the act shall continue to apply on the transactions involving transfer of shares and securities.” 27 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 18. Our attention is also drawn to the certificate issued by the ld. AO u/s. 197 of the Act on 08.08.2018 &19.02.2021, where in the sale of property transaction considered as capital assets transaction on which the lower deduction claimed was considered as long-term capital gain has been allowed by the department on two occasions. 19. The ld. AR of the assessee further drawn our attention to a sanction letter of the Citibank dated 11.11.2011 to prove that the loan availed was housing loan and the intention was to use the assets as capital asset. 20. Au contraire, ld. DR appearing for revenue read various findings of the ld. AO and ld. CIT(A) and vehemently argued that the assessee has sold the flats in India, there cannot be a doubt that the income derived from the two flats sold by the assessee is chargeable to tax. The flats sold by the assessee cannot be charged under the head capital gain as these flats are not registered in their name and has been sold before the registration. Thus, the contention the income is in the nature of capital gain is incorrect. The intention of the assessee to hold these flats for earning rental income is also not correct. The volume of buying and selling, amount of heavy gain are to be seen and that itself proves intention and this gain is nothing but an adventure in the nature of trade and rightly taxed by the ld. AO. The assessee has not filed any return from 2007-08 so his intention can only be seen when he files the return and that has been correctly determined when filed the ITR. For assessment year 2014-15 further appeal was not filed as there was low tax effect. In assessment year 2012-13 the department is in appeal before the ITAT. The ld. DR argued that the even the CIT(A) has not considered the arguments placed by the ld. AR of the assessee in 28 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar first appeal and the views of the AO is confirmed as far the adventure in the nature of trade to be considered on the sale of two flats by the assessee. The ld. DR argued that the frequency of the investment and the volume may be considered while deciding this issue and the assessee is buying under construction property. The loan taken by the assessee itself prove that the assessee intends to have the business motive only. He further relying on the Hon’ble apex court decision and stated that even a single transaction can be considered as adventure in the nature of trade. 21. We have heard the rival contentions, submission made before us and the ratio of decision relied upon by both the parties. The point of arguments raised before us by the ld. AR of are wittily stated and are potted as under: a) Assessee being Nonresident Indian having Indian origin, intend to have enduring house property for his long-term use,as capital investment. This intention based on the set of facts cannot be denied as the assessee is not regularly resides inIndia. He being not present in India no intention to enter into an option of having adventure in the nature of trade as he is already employed out of India. The sole purpose of his investment in India to have property for enduring benefit either to have the rental income or to have the capital appreciation over the period of time. For this intention he has added her wife’s name in all the investment which he made, this also support the contention of the investment not an adventure in the nature of trade. Had the intention of the assessee is to enter into an adventure in the nature of trade he might have done the transaction in his name only and as he is 29 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar employed at such level, he could get the loan sanctioned his name only but he preferred it to have the time as also co-owner of the property based on his intention of investment as his retirement plan and assessee never changed his intention. The property is purchased with a home loan so that both the investment and enduring benefit of the property achieved out of the income that he earns outside India. The investment made in India by the assessee in 2007-08 is owned and continue to hold for more than five and ten years with that intention only to hold it for capital investment. Merely, the assessee realised the price more then what he has invested cannot be the criteria the decide the nature of investment, the purpose and circumstance evidence to support the contentions is also required to be looked into. b) Since, his intention was to stay in India and invested for long term and that is why he has even invested in the property which are under construction and even not registered in his name. The decision to sale the property before registration will not change the income arising out of the capital investment made by the assessee. The real purpose and intention of the assessee is not in the trade or adventure in the nature of trade/business as he wanted his family to be secured in a house in his origin country mother land. As regards the contention that the property is not registered and even the agreement is also not registered and allotment right is not the capital investment is not correct view taken by the department. The allotment right is not a commodity be taxed; it gives the vested right on the property the registration is a process which can be deferred but the vested right cannot be doubted merely on a contention that the property is not registered in the name 30 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar of the assessee. The assessee himself remain present at the time of the deed that he has executed. He has not given any rights or power of attorney to any third person, if so the view taken by the department may also support the contention but here it is not so. The assessee has not fixed place of business to term him that he is engaged in the business activities. The revenue has not disputed presence of assessee in India for period of 22 days in the year under consideration and in last 5 years it is only 55 days. This information is already on the records and extracted in the assessment order at page 4. It is evident from the above that the stay of the assessee in the year under consideration is only to undertake the formality of the transaction that he has under taken in mother land India. c) The other laws in India does not permits NRI business entity to enter into such type of the activities but at the same time it permits to hold the property by NRI. Thus, the intention of the assessee is also required to seen as per the prevailing laws other than the taxation laws, which the assessee comply. The department cannot be permitted to take a different view which is not permitted under another law. Even subsequent year even the ld. AO considered the similar income as income under the head capital gain has given the lower deduction certificate on two instances. d) CBDT’s circular which state that once the stand taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent year also and the taxpayers shall not be allowed to adopt a different / 31 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar contrary stand in this regard in the subsequent years. The ld AR further submitted that this circular is issued by the CBDT to avoid litigation which the department should not use to create litigations. The ld. AR for the assessee stated that the new plea amounts to a flip flop as it is diagonally opposite to what was taken subsequently and in fact it supports the stand taken in the year under consideration. The issue considered in the assessment is also required to be seen at the time issue of lower deduction certificate. According to him this is a ploy of the department to collect the higher tax on one score or the other is not permitted under the law and even the CBDT circular is very clear on the intention of the assessee and the department should not change their stand year to year for the same assessee and should try to follow the Board’s circular in its letter and spirit. He has further stated that the property in question is a capital asset on which tax is chargeable as per law which is to seen based on the circular, purpose and circumstantial evidence. He also supports this argument based on the various cases laws. e) As per order of the ITAT if the interest is allowed as deduction the related business loss is much more then what is claimed as capital loss in the computation of income and thus by disturbing the result declared by the assessee revenue has no loss for the year under consideration and based on the circular of the CBDT and looking to the intention of the assessee to invest in the enduring benefit in the asset may be treated as capital assets as his intention to hold the assessee to secure his family and the reason he has invested the money along with his wife with a borrowed fund and the same is invested over a period of 32 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar time out of the income he earned from the employment outside India, which cannot be termed as an adventure in the nature of trade. f) The ld. AR for the assessee based on the various legal decision relied upon and stated that the investment may be treated as capital investment and the resultant gain or loss be assessed as income under the head capital gain as department has subsequently accepted the stand of the assessee be allowed to given in the year under consideration. 22. Further, the ld. AR for the assessee contended that the CBDT instruction to be read with the intention of the assessee and the subsequent action of accepting the investing action of the assessee chargeable to tax as capital gain there is no apparent reason so as to change the treatment given by the assessee in his return of income. We find force in the arguments of the ld. AR and based on the doctrine of "Res-judicata"when translated to English means "a matter decided". Simply put the doctrine predicates that no man can be tried twice for the same cause or to put it in legal terms a matter/issue which has already been adjudicated cannot be raised again either in the same court or in a different court. This doctrine mitigates the possibility of multiple, repetitive and vexatious legal proceedings thereby avoiding unnecessary wastage of resources and strain on the legal system while also leading to a modicum of consistency in proceedings over time. 23. In common law the doctrine of Res-judicata enables a judge in a suit, when confronted with a suit that is identical to or substantially the same as an earlier/periods one, to by applying this principle to preserve the effect of the 33 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar earlier judgement. The justification for applying this doctrine lies in the desire to promote efficiency and fairness and reduce unnecessary litigation. Even the CBDT’s instruction is on the same line to reduce the litigation is not considered by the lower authorities where there is not substantial question of leakage of revenue as it is evident from the appeal effect order placed on record. 24. For a defendant, this doctrine enables him by relying in the absence of any change in the underlying facts or circumstances to obtain the same judgement as in an earlier case or in the subsequent year to be applied consistently. This doctrine is based on the following three Roman maxims which embody the combined result of the public policy [reflected in maxims (ii) and (iii) ]and private justice [expressed in the maxim (i)] and applies to all judicial proceedings whether civil or criminal: - (i) Nemo debetlisvaxari pro eadem causa -i.e. no person should be vexed annoyed, harassed or vexed two times for the same cause; (ii) Interest republicaeut sit finislitium - i.e., it is in the interest of the state that there should be an end of litigation; and (iii) Re judicata pro veritateoccipitur - i.e. the decision of the court should be adjudged as true 25. The following conditions need to be satisfied for the doctrine of Res- judicata to be applicable: - (i) There must be a final judgment; (ii) The judgment must be on the merits; 34 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar (iii) The claims must be the same in the first and second suits; (iv) The parties in the second action must be the same as those in the first, or have been represented by a party to the prior action. This doctrine has widespread relevance in Civil Law. In fact section 11 of The Code of Civil Procedure, 1908, recognises this doctrine as under:- "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court." The above Section in the Code of Civil Procedure gives statutory teeth to the basic proposition that once a matter is finally decided by a competent court no party can be permitted to reopen it in a subsequent litigation. On the taxation front, in general, the doctrine has no application since each assessment year is an independent unit and its assessment, based as it is on the specific facts prevalent for that year, is final for and determines the tax only for that year and cannot govern or be made applicable to any later years.In one of the earliest decisions on the issue the Bombay High Court in the case of H.A. Shah and Co. v. CIT[1956] 30 ITR 618 (Bom.) held that "the principle of estoppel or resjudicata does not strictly apply to the Income-tax authorities" but also clarified that:- 35 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar "An earlier decision on the same question cannot be reopened if that decision is not arbitrary or perverse, if it had been arrived at after due inquiry, if no fresh facts are placed before the Tribunal giving the later decision and if the Tribunal giving the earlier decision has taken into consideration all material evidence." This view was unequivocally also upheld by the Supreme Court in the case of Instalment Supply (P.) Ltd. v. Union of India [1962] AIR (SC) 53 whereby the general rule is to make this doctrine inapplicable for tax matters as the findings/opinions recorded by either an Assessing or even an Adjudicating authority have no binding effect on even the same issue in subsequent years. The views of the Supreme Court in the case of Instalment Supply Ltd (referred above) were very soon thereafter clarified and amplified in the case of Amalgamated Coalfields v. Janapada Sabha [AIR 1964 SC 1013] with the following remarks:- "In considering this question, it may be necessary to distinguish between decision on questions of law which directly and substantially arise in any dispute about the liability for a particular year, and questions of law which arise incidentally or in a collateral manner ... the effect of legal decisions establishing the law would be a different matter. If, for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate asresjudicata against the assessee for a subsequent year". The Supreme Court in the a landmark decision on the issue in the case of Radhaswami Satsang v. CIT [1992] 60 Taxman 248/193 ITR 321 (SC) while 36 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar holding that the principle of res-judicata does not apply to income-tax proceedings since each is an independent unit in itself made the following subtle, yet relevant remarks which signified somekind of a shift in approach:- "We are aware of the fact that strictly speaking resjudicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year". The above view also finds echo in the following judgements: ♦ Therefore, in the absence of any valid and convincing reason, if same issue has not been pursued by the Revenue in appeal, there is no justification as to why such principles on res-judicata should not apply. MaharaoBhim Singh of Kota v. CIT [2016] 76 taxmann.com 274/[2017] 244 Taxman 139/390 ITR532, (SC). ♦ But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam. Bharat Sanchar Nigam Ltd. v. UOI [2006] 3 STT 245; Meeraj Estate Developers v. CIT [2020] 113 taxmann.com 231/269 Taxman 134/[2019] 418 ITR 681 (Allahabad). ♦ The principles of res-judicata will not apply only if the Revenue is able to establish compelling reasons for a departure from settled position. 37 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar Godrej & Boyce Manufacturing Co Ltd. v. Dy. CIT [2017] 81 taxmann.com 111/247 Taxman 361/394 ITR 449(SC). ♦ There should be a finality attached to the issue once it stands decided by the higher courts on the merits. Parashuram Pottery Works Co Ltd. v. ITO [1977] 106 ITR 1 (SC). ♦ The Revenue should not be allowed to flip-flop on the issue 25 Based on the above findings that the assessee contention based on the similar fact income is considered as capital gain and revenue failed sustenance their action that why the contrary view should be adopted in the year under consideration when the department has on the same very assessee’s case on same fact accepted the income as income under the head capital gain and even revenue also failed to substantiate that with the view and as they substantiate there is a substantial revenue leakage too. 26. In view of the above findings of facts we see no reasons that the revenue should disturb the income offered by the assessee and in terms of this observation the ground No. 1,2 & 3 raised by the assessee is allowed. 27. In effect, the appeal filed by the assessee in ITA NO. 02/JP/2018 is allowed. 28. In the case of this assessee for assessment year 2012-13 Revenue’s ground in IT(IT) A No. 04/JP/2018 38 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar “1. The CIT(A) erred in facts as well as in law in holding that interest cost of all the previous years can be clubbed together to arrive at the cost of opening stock for the year under consideration. 2. The CIT(A) failed to appreciate that interest cost is to be accounted for on accrual basis and once it was held that the assessee was involved in adventure in the nature of trade, profit or loss was to be determined for each year, separately in which interest accrued in that particular year only can be allowed an expenditure. 3. By holding that interest cost for all the previous years can be clubbed to arrive at cost of opening stock. CIT(A) defined the basis principles of accounting. 4. CIT(A) failed to appreciate that by aggregating previous years interest in the opening stock he, in a way allowed carried forward of losses in earlier years when the assessee had not filed return of income hence was not entitled for carried forward of losses. 5. CIT(A) failed to appreciate that ITAT order for A.Y. 2014-15 was not accepted by department on merits, that the department could not challenge said order in High Court was because of low tax effect as per circular No. 3/2018 of CBDT. The appellant crave the indulgence to modify, alter, add any other ground of appeal.” 29. The issue raised vide Ground no. 1 to 3 in this appeal of department is squarely covered by order of this tribunal’s co-ordinate bench order dated 21.05.2018 and the issue is not recalled as department has not contested the said decision in MA filed by the assessee. The issue is covered by the order dated 21.05.2018 vide para 12 to 18 and in terms of this observation the Ground no. 1 to 3 of the revenue in IT(IT) A No. 04/JP/2018 is dismissed. As regards the ground no. 4 of this appeal the same is squarely covered and consequential in nature as the activity of the assessee is considered chargeable to tax under the head as capital gain and necessary cost incurred by way interest be clubbed as cost and accordingly ground No. 4 is dismissed. 39 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 30. Assessee for assessment year 2012-13 preferred cross objection in CO. No. 41/JP/2018 and the grounds taken in this co are as under; “1. Under the facts and circumstances of the case and in law, Ld. CIT (Appeals) has erred in upholding assessment order dated 11.02.2015 passed u/s 143(3) of the Act, which is perverse, arbitrary and bad in law. 2. Under the facts & circumstances of the case and in law, the Ld. CIT (Appeals) has erred as it was not justified in upholding the conclusion of the Ld. AO that transaction of selling right in flats by the appellant was adventure in the nature of trade and constructing the same was business of the appellant. 3. Under the facts & circumstances of the case and in law, the Ld. CIT (Appeals) has erred in treating the rights in flats of appellant as stock in trade instead of capital assets and not accepting loss of Rs. 5,28,01,317/-. 4. Under the facts & circumstances of the case and in law, the Ld. CIT(A) has erred in disallowing capital loss claimed and carried forward by the appellant as per its return of income. 5. Under the facts and circumstances of the case and in law, Ld. CIT (Appeals) has erred in maintaining the interest liability u/s 234B of the Income Tax Act, 1961. 6. The appellant craves to alter, amend and modify any grounds of appeal.” 31. The ld. AR of the assessee stated that Ground no. 1 is not pressed in this Co as ground being general in nature and would become academic on adjudication of ground no 2 & 3 and therefore same is not required any adjudication. The ground no. 2 raised by the assessee in this CO is squarely covered vide order in ITA no. 02/JP/2018. The bench has observed that the issues raised by the assessee in this cross objection No. 41/JP/2018 is equally similar on set of facts and grounds. Therefore, it is not imperative to repeat the facts and various grounds raised. Hence, the 40 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar bench is in considered view that the decision taken by us in ITA No. 02/JP/2018 for the Assessment Year 2014-15 shall apply mutatis mutandis in the case of Shri Arun Nagar’s Cross objection no. 41/JP/2018 for the Assessment Year 2012-13.The Ground no. 3 & 4 raised are consequential in nature to the Ground no. 2 and thus to be given effect accordingly in terms of Ground no. 2. In terms of this observation, the cross objection filed by the assessee in co No. 41/JP/2018 is allowed for assessment year 2012-13 32. The assessee has marched an appeal in IT(IT) A No. 12/JP/2019 for assessment year 2016-17, where in following grounds raised:- “1. Under the facts and circumstances of the case and in law, the order dated 24.06.2019 passed by Ld. CIT (A) is perverse, non-speaking, arbitrary and bad in law. 2. Under the facts and circumstances of the case and in law,Ld. CIT(A) has erred in upholding the order passed by Ld. Assessing Officer dated 21.12.2018. 3. Under the facts and circumstances of the case and in law,ld. CIT(A) has erred in disallowing the brought forward capital loss as claimed by the Appellant in his return of income. 4. Under the facts and circumstances of the case and in law,Ld. CIT(A) has erred in affirming the addition made by Ld. AO under the had long term capital gain amounting Rs. 4,29,858/- while disallowing the claim of set off of brought forward capital loss. 5. The appellant craves to add, amend and modify all or any ground of appeal on or before the date of hearing.” 33. The issue raised in this appeal is consequential in nature and the Assessing Officer is directed to give relief to the assessee, which are decided by us in this order for Assessment year 2012-13 and 2014-15 and thus the issue raised are set-a-side to the file of the AO for granting the consequential relief to the assessee. 41 IT(IT)A No. 02, 04/JP/2018 CO No. 41/JP/2018 &IT(IT) A No. 12/JP/2019 Arun Nagar 38. In the result, appeals in IT(IT)A No. 02/JP/2018 of the assessee is allowed, IT(IT) A No. 12/JP/2019 of the assessee is allowed for statistical purposes, & CO No. 41/JP/2018 of the assessee is allowed. IT(IT) A No. 04/JP/2018 of the Revenue is dismissed Order pronounced in the open court on 17/08/2022. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 17/08/2022 *Santosh vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Arun Nagar, Udaipur. 2. izR;FkhZ@ The Respondent- DCIT, International Taxation, Jaipur. 3. vk;djvk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZQkbZy@ Guard File (IT(IT)A No. 02, 04/JP/2018 , IT(IT) A No. 12/JP/2019 & CO No. 41/JP/2018) vkns'kkuqlkj@ By order, lgk;diathdkj@Asst.