2014 (1) TMI 1591

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....d on the following substantial questions of law "1. Whether the Hon'ble ITAT was justified in ignoring the fact that assessee was lawfully authorized to conduct the business of dealing in transactions of all kind of movable and immovable properties as per memorandum of association prescribed under the Companies Act, which proves that the income was rightly assessed under the head 'business income' instead of 'capital gain'? 2. Whether the Hon'ble ITAT was justified in ignoring the fact that intention of the assessee company was doing business in real estate activities solely with the view to earn profit thereon and is accordingly covered by Section 28 of the I.T. Act 1961 of normal business activities and not as capital gain as claime....

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.... seen purely with Income Tax perspective. In this view of the matter, I have no hesitation in holing that the farm land was a capital asset and the surplus on sale of such capital asset is exigible to capital gains and not business profits. 5.2 As regards the issue of concerning sale of entitlement in flat, the Ld AR did not seriously press the issue since the tax liability on account of Short Term Capital Gain and business profits were same. Thus, this ground is dismissed." 6. The Income Tax Officer-5(3), Kanpur filed an appeal before th ITAT, relying on CIT Vs. Mohakampur Ice and Cold Storage [(2005) 149 Taxman 593 (All). The Tribunal dismissed the appeal with the findings that the intention of the assessee was to sell the property ....