2019 (11) TMI 1304

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....w: "(a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in confirming the order of CIT(A) in assessing the income from the sale of gala as capital gains under section 45 of the Act instead of business income under section 28 of the Act as claimed by the Appellant? (b) Without prejudice to the above, whether on the fact and in the circumstances of the case the Tribunal ought to have directed the Assessing Officer to refer the valuation of the gala to the valuation officer as per section 50C(2) of the Act? (c) Whether on the facts and in the circumstances of the case and in law the expenses of Rs. 30,64,396/- included in the cost of construction of the said gala were ....

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.... Assessee, thereafter, filed an appeal before the Commissioner of Income Tax (Appeals) who, by an order dated 30 September 2014 dismissed the appeal. Thereafter the Appellant- Assessee filed an appeal to the Income Tax Appellate Tribunal which was dismissed by the impugned order. As regards Question (a): 4. On the first question as to whether the income from the sale of gala is to be treated as short-term capital gains or business income, the contention of the learned counsel for the Appellant is that what is material to be seen is the intention of the Appellant- Assessee. According to him, the Assessing Officer, the Commissioner (Appeals) and the Tribunal have not considered the established factual position and that the word "busines....

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....round taken in the appeal memo before the Tribunal that the Assessing Officer should have referred the valuation of gala to the Valuation Officer as per section 50C (2) of the Act. Hence, the question as proposed cannot be considered.   As regards Question (c): 6. The learned counsel for the Appellant, on this question, submitted that the Appellant had established genuineness of the expenses to be included in the cost of construction of gala which ought to have been allowed as business expenditure. It was contended that merely because some of entities from whom the Appellant purchased sundry material could not confirm the same, the business expenditure ought not to have been disallowed. The Commissioner (Appeals) and the Tribu....