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TMI Blog2022 (4) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013. 2. At the outset, the ld. counsel for the assessee stated that the appeal filed by the assessee is barred by limitation by 16 days and for this, he has filed condonation petition along with affidavit. The ld. counsel stated that the assessee is aged and uneducated, so without understanding the importance of order, forgot to take steps to file appeal. Only when auditor enquired about the hearing having been completed, she reminded of the order and steps were taken immediately to file appeal, which resulted in delay of 16 days. The ld. counsel stated that the delay is neither willful nor wanton and requested to condone the delay. When these facts were confronted to ld. Senior DR, he has not raised any objection. Hence, we condone the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of starting construction in financial year 2003-04 till financial year 2010-11. The assessee claimed cost inflation index on the plot and construction cost. The AO during the course of assessment proceedings noted that the assessee is carrying out systematic business activity to earn profit and hence, he assessed the income of the assessee by changing the head from 'capital gains' to 'business income' thereby the AO reassessed the head of income, also made disallowance of cash purchases u/s. 40A(3) of the Act and estimated profit from sale of these 3 flats and assessed the total business income at Rs. 28,26,258/-. Aggrieved, assessee preferred appeal before CIT(A). 5. The CIT(A) also confirmed the action of AO vide para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it is. The second flat was sold in assessment year 2010-11 and also declared under the head 'capital gains' and Department accepted the same as capital gains. But, now the assessee has sold 3 flats in assessment year 2011-12, the present year under consideration, the assessee declared the same as 'capital gains' but the AO suddenly changed the stands and assessed the income under the head 'business income'. Before us, the ld. counsel for the assessee filed the case law of Hon'ble Karnataka High Court in the case of PCIT vs. Smt. Chamundeswari, 2019 (1) TMI 861, wherein the Hon'ble Karnataka High Court following the decision of Hon'ble Supreme Court in the case of G. Venkataswamy Naidu vs. CIT, 35 ITR 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 35 ITR 594, was followed. 8. On considering the reasons assigned by the Tribunal, we do not find any substantial question of law that arises for consideration in this appeal. The reasoning of the Tribunal is based on the judgment of the Hon'ble Supreme Court referred to supra. Even on facts, there was no material on record for the Commissioner of Income Tax (Appeals) to hold that the assessee had purchased the property with an intention of reselling the same for profit. There is no material on record to trigger such a contention. Hence, there is no substantial question of law that arise for consideration in this appeal." 6.1. We also noted that the Hon'ble Supreme Court in the case of Janki Ram Bahadur Ram vs. CIT, (1965) 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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