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TMI Blog2015 (4) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. It was a solitary transaction. In the light of this undisputed facts, when a possible view is taken by the Assessing Authority and accepted the case of the assessee that it has resulted in capital gains, as rightly held by the Tribunal, the Commissioner was in error in treating it as a business income. In fact, he was not able to make up his mind and he has remanded the matter back to the Assessing Authority to find out whether it constitutes capital gain or business income. Thus Commissioner had no justification to invoke Section 263 of the Income Tax Act to initiate proceedings - Decided in favour of assessee. - ITA No. 218 of 2009 - - - Dated:- 13-1-2015 - N. Kumar And B. Veerappa,JJ. For the Appellant : Sri K V Aravind, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection statement and pointed out the shares sold during the financial year 2002-03 was one solitary transaction and the shares sold were acquired a decade back and has been reflected in the audited accounts as investments and it was never been considered as a part of stock in trade. Therefore it was contended that the income from sale of shares cannot be construed as business income. Over-ruling the objections the Commissioner proceeded to hold that the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the Revenue and therefore the Assessing Officer was directed to make a fresh assessment in the light of the observations made in the order. Aggrieved by the said order, the assessee preferred an appeal to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital Gains' when the Assessing Officer has not applied his mind regarding the activities carried on by the assessee and objections of the assessee stated in the memorandum of association before arriving at a conclusion that the income has to be assessed under the head 'Capital Gains'? 7. The material on record clearly establishes that the share which is sold by the assessee was held by the assessee a decade back which has been reflected in the audited account as investment. It was never considered as part of stock-in-trade. It was a solitary transaction. In the light of this undisputed facts, when a possible view is taken by the Assessing Authority and accepted the case of the assessee that it has resulted in capital gains, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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