9911796707
TMI Blog1983 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... the said claim and held that it was an income from business and added it to the business income of the assessee. 2. The Commissioner (Appeals) accepted the claim of the assessee and directed the ITO to treat the same as long-term capital gain. The department has now come in appeal before us. 3. The only ground raised is that the Commissioner (Appeals) has erred in treating the said income as long-term capital gain and not business income. 4. The facts, as found by the ITO and recorded in the assessment order, are as follows. The assessee was carrying on business in dry fruits in his shop situated in the Sheikh Menon Street as a tenant. On 28-10-1975 the assessee purchased a building which was situated near this shop. This building was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se it could be a business income. This contention of the assessee was accepted by of the Commissioner (Appeals). He observed that there was no transfer of immovable property as such by the assessee. However, according to him, the right of possession of the said shops was a capital asset of the assessee as distinguished from the assessee's stock-in-trade, particularly when the assessee was not a dealer in real estate. Consequently, the transaction transfer of possession and obtaining money in the course thereof was in the nature of transfer of capital asset, as defined in section 2(14) of the Income-tax Act, 1961 ('the Act'), and the income arising therefrom was a long-term capital gain. 6. Before us, the learned departmental representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vacated by the assessee's tenants were used by the assessee for business purposes, i.e., for extension of its already existing business of dry fruits till the time when those shops were reassigned. The period for which such user was made is a long one. Another fact found by the ITO is that the said building was near the shop in which the assessee was carrying on its business of dry fruits. All these facts are consistent with the case of the assessee that the intention in purchasing the building was not to deal in real estate but to use the shops in that building, vacated by the tenants, for the extension of its original business of dry fruits. In the circumstances, the building in question would come within the definition of the term 'cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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