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TMI Blog2020 (7) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction 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. - Decided against revenue - IT Appeal Nos. 326 And 327 Of 2010 - - - Dated:- 29-1-2020 - Alok Aradhe And Ravi V. Hosmani, JJ. E.I. Sanmathi, Adv. for the Appellant. A. Shankar, Sr. counsel and M. Lava, Adv. for the Respondent. JUDGMENT Alok Aradhe, These appeals under section 260A of the Income-tax Act, 1961 (hereinafter referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessment years. 4. The assessee filed his returns of income under section 139 of the Act on 31-3-2006 for the Assessment Year 2005-06 admitting the transactions over the income arising out of the aforesaid transactions as long term capital gains. Assessing Officer by an order dated 30-6-2008, 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 17-7-2009. 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 31-3-2000, inter-alia, held that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income was filed by showing the income from the properties in question as long term capital gain. It is further submitted that the entire rights in the properties were transferred on the date of execution of the agreement i.e., 13-5-2002. In support of aforesaid submissions learned counsel for the Revenue has placed reliance on the decisions in 'CIT v. Shambhu Investment (P.) Ltd., 249 ITR 47 (Cal.)'. It is further submitted that the aforesaid decision has been upheld by the Supreme Court in 'Shambhu Investment (P.) Ltd. v. CIT 263 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was with an intention to sell them at a profit. (4) That an investor may sell the shares when he gets a good price for the shares. (5) That 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid entries it is evident that the assessee has not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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