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TMI Blog2020 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... tly disclosed the income from the property as long term capital gains instead of business income. The aforesaid finding by no stretch of imagination can be believed to either perverse and arbitrary. - Decided in favour of assessee. - ITA NO. 326 OF 2010 C/w ITA No. 327 OF 2010 - - - Dated:- 29-1-2020 - MR. ALOK ARADHE AND MR. RAVI V. HOSMANI JJ. APPELLANTS (BY SRI.E I SANMATHI, ADVOCATE) RESPONDENT (BY SRI. A. SHANKAR, SR. COUNSEL FOR SRI.M LAVA, ADVOCATE) JUDGMENT ALOK ARADHE J., These appeals under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as Act for short) have been filed by the Revenue which were admitted by the Bench of this Court by an order dated 18.01.2011 on the following substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions over the income arising out of the aforesaid transactions as long term capital gains. Assessing Officer by an order dated 30.06.2008, treated the income as business income and not a capital gain. Being aggrieved the assessing authority filed an appeal before the Commissioner of Income Tax (Appeals). The aforesaid appeals were dismissed by the order dated 17.07.2009. 5. Thereafter, assessee filed an appeal before the Income Tax Appellate Tribunal (hereinafter referred to as Tribunal for short). The Tribunal by its order dated 31.03.2000, inter-alia, held that the properties in question were never transferred to M/s. Abhishek Developers during the Financial Year 2002-03. It was further held that the assessee had entered into an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferred on the date of execution of the agreement i.e., 13.05.2002. In support of aforesaid submissions learned counsel for the Revenue has placed reliance on the decisions in COMMISSIONER OF INCOME TAX VS. SHAMBU INVESTMENTS PVT., LTD., , (2001) 249 ITR 47 . It is further submitted that the aforesaid decision has been upheld by the Supreme Court in 203 ITR 143. 8. On the other hand, the learned Senior Counsel for the assessee submitted that the question, whether the income from the property is a business income or a long term capital gain is a question of fact. The ITAT on the basis of the meticulous appreciation of the evidence on record has recorded the findings in this regard. It is also pointed out that in the Assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee had shares in 25 to 30 companies and the value of the total holding was between ₹ 57,000 and ₹ 63,000, which was a very small amount considering the number of companies in which the shares were held, thus, denoting that the assessee was a small investor. (6) That the number of transactions are not many every year and the assessee could not be said to indulge in several transactions of purchase and sale every year. 10. It has further been held that total fact of relevant factors and circumstances determining the character of the transaction and the volume, frequency continued and regularity of transactions of parties and sale on goods has also be taken into account. It has been held that the aforesaid qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted any other activity other than holding the land as investment. It is also pertinent to mention here that the revenue has not come up with any documentary evidence to suggest that assessee had earned income from the transaction to the land in question during the year 2003-04. The Tribunal thereafter on the basis of meticulous appreciation of evidence on record has recorded a finding that assessee has rightly disclosed the income from the property as long term capital gains instead of business income. The aforesaid finding by no stretch of imagination can be believed to either perverse and arbitrary. 13. In view of the preceding analysis, the substantial question of law framed by this Court are answered against the revenue and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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