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TMI Blog2002 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of law, arises from the order of the Tribunal. - - - - - Dated:- 10-7-2002 - Judge(s) : D. K. JAIN., MS. SHARDA AGGARWAL. JUDGMENT The judgment of the court was delivered by D. K. JAIN J. -This is an appeal under section 260A of the Income-tax Act, 1961 (in short "the Act"), from the order passed by the Income-tax Appellate Tribunal, Delhi Bench "B", New Delhi (in short "the Tribunal"), on January 31, 2002, in I.T.A. No. 91/Delhi of 1995, pertaining to the assessment year 1991-92. The background facts, in brief, are: The respondent, hereinafter referred to as the assessee, derives income from medical profession. In her return for the relevant assessment year she declared an income of Rs. 1,14,330 as income from profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was computed at Rs. 22,85,820. Not being satisfied with the relief granted by the first appellate authority, the assessee preferred further appeal to the Tribunal. The Tribunal accepted the stand of the assessee by observing as follows: "On the facts of the case, we have to categorically hold that the initial intention of the assessee was to hold the property as an asset for constructing a nursing home but subsequently after waiting for a period of three years and carrying out the construction for a period of three to four years, the assessee proceeded to dispose of a major part of the property in the assessment year 1991-92 and as stated before us the remaining shops were sold in 1999-2000. In other words, there is a substantial g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue, thus, giving rise to a substantial question of law. We are unable to persuade ourselves to agree with learned counsel for the Revenue. The question of distinction between a capital sale and an adventure in the nature of trade came up for consideration before the Supreme Court in G. Venkataswami Naidu and Co. v. CIT [1959] 35 ITR 594, wherein it was observed that the character of a transaction cannot be determined solely on the application of an abstract rule, principle or test but must depend upon all the facts and circumstances of the case. Ultimately, it is a matter of first impression with the court whether a particular transaction is in the nature of trade or not. It was said that a single plunge may be enough provided i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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