2020 (7) TMI 373

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.... "Whether the assessing officer was justified in treating the income as business income for the assessment year 2003-04 when the assessee offered it as capital gains for the assessment year 2005-06?" 2. Since, substantial questions of law in ITA No. 326/2010 and in ITA No. 327/2010 are same, these appeals were heard analogously and are being decided by this common judgment. 3. Facts giving rise to filing of these appeals briefly stated are that the assessee in I.T.A.No.376/2010 purchased a land situated at Kalenahalli Agrahara village, Begur Hobli, Bengaluru in 1992, whereas the assessee in I.T.A. No. 327/2010 purchased a land situated at Shinivagilu in Bengaluru in the year 1992 itself. The assessee in I.T.A No. 326/2010 enter....

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....rs for the sale of lease and had retained the physical possession of the property in question. It was further held that the Revenue did not come out with any documentary evidence to suggest that the assessee has incurred the income from the transactions of land during the Assessment Year 2003-04. 6. The Tribunal further held that in the balance sheet the assessee had disclosed the land under the head 'property' as an asset from the year 1995 till 2005. Accordingly, the Tribunal while placing reliance on the decision of the Rajasthan High Court in 'CIT v. Sohan Khan', & Mohan Khan '[2008] 304 ITR 194' held that the transaction was a capital transaction and has to be treated as long term capital gain and not as busi....

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....ar 2005-06 the revenue has accepted the income from the aforesaid properties as long term capital gain. In support of his submission learned Senior Counsel for the assessee has placed reliance on the decision of Division Bench of this Court in 'CIT v. Bagmane Development (P.) Ltd., 392 ITR 379'. 9. We have considered the submissions made by the learned counsel for the parties and have perused the records. It is trite law that the scope of judicial scrutiny against an order of the Tribunal is limited to the substantial question of law and this Court in exercise of powers under section 260A of the Act can neither appreciate the evidence nor can oppose the findings of the fact. The Division Bench of this Court in the case of Commiss....

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....s to be determined in the fact situation of the case. 11. In the light of aforesaid settled legal principles, the facts of the case may be examined. Admittedly, the properties were acquired by the assessee in the year 1992 and assessee had entered into an agreement for sale on 13-5-2002. Thereafter in the accounts up to the year 2004, the property was mentioned as an asset. The details of which read as under: Year ended Amount 31-3-1993 9,85,621 31-3-1994 20,03,964 31-3-1995 20,03,978 31-3-1996 20,04,079 31-3-1997 20,04,129 31-3-1998 20,04,299 31-3-1999 20,04,339 31-3-2000 20,04,379 31-3-2001 20,04,379 31-3-2002 20,04,389 31-3-2003 22,11,578 31-3-2004 64,21,678....