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2.3 According to the AO, the main issue involved in the case was that the assessee had received its amount of share on sale of common plot which was income chargeable to tax under the head Profits and Gains of Business and not on capital account as claimed by the assessee. Since the assessee could not furnish required details such as the actual plot number, the amount received from sale of plot No. 29 could not be ascertained as to whether it is an independent plot forming part of the 53 plots allotted to 14 Cooperative Societies; how plot No. 29 was derived/ allotted from the total area of land allotted by the Bombay Housing Society in 1960; whether the plot sold was a part of land allotted for public amenities and public utilities, residential facilities, etc., the AO treated the amount received by the assessee on sale of its share of the excess land available with these Cooperative Societies as 'Business Income' being an adventure in the nature of trade and accordingly brought the profit on sale thereof of `23,00,000/- arising to the assessee to tax in the assessee's hands as business profits as against LTCG admitted thereon by the assessee. In addition thereto, the AO brought to tax in assessee's hands an amount of `5,02,000/- received by the assessee from members as 'transfer fees'. The assessment was accordingly concluded under section 143(3) r.w.s. 253 of the Act vide order dated 19.03.013 wherein the assessee's income was determined at `43,74,000/-.

5. In this appeal, the assessee has raised the following grounds: -

"1. The Learned Commissioner of Income Tax (Appeals) erred in confirming the Order u/s 143(3) r.w.s. 253 of the I.T. Act, 1961 of the Assessing Officer charging to tax as Business Income, capital receipt of Rs.23,00,000/- received as assessee's share on sale of common plot of land.
2. The Learned Commissioner of Income Tax (Appeals) erred in confirming the Order u/s 143(3) r.w.s. 253 of the I.T. Act, 1961 of the Assessing Officer charging to tax contribution of Rs.5,02,000/- received from members, incidental on the sale of Plot ("Transfer Fees") which was exempt on the Principle of Mutuality.
"3.2 The facts of the case, observation / findings of the AO in this regard in the assessment order are summarized as under: -
i. The Hon'ble ITAT, 'F' Bench, Mumbai vide their order in ITA No,5864/Mum/2008 dated 25.11.2011 set aside the issue to the file of the AO.
ii. This issue related to sale of common plot of land no. 29 acquired in 1950 jointly by 14 co-op. societies of JVPD Scheme. The portion of sale consideration pertaining to the appellant was Rs. 23,00,000/-. The appellant in its return of income had offered consequent gains as LTCG whereas the sale was treated by the AO as adventure in nature of trade and therefore the entire sale consideration was added as business income.
v. It was submitted that the assessee together with the other 13 Co- op. societies, sold its rights in a common plot on 'AS IS WHERE IS BASIS' during A.Y. 199596 in the manner and under certain compelling circumstances, inter-alia due to encroachment etc. vi. It was further submitted that the acquisition of the land has taken place only once, there being a number of plots for common amenities, the same have been given out to deserving institutions as and when requests were made and found suitable and it was not the case that the same plot was being acquired and sold time and again. It was submitted that sometimes certain amounts are charged from the user for purposes like cinema, petrol pump from where user will be carrying on the business but the fact that a plot has not been given free of cost by itself cannot constitute the same as business activity.