TaxTMI 
TaxTMI 
2022 (1) TMI 600
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....in ITA No.705/Bang/2013 relating to the Assessment Year 2007-08. 2. The appeal has been admitted by this Court to consider the following substantial questions of law: "1. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee was not carrying the activity of adventure in the nature of trade even when the materials on record establish that assessee was in fact carrying activity in the nature of adventure in trade and the decision relied upon by the Tribunal is challenged before this Hon'ble High Court in ITA No.233/2011? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that it is not inclined to accept the contention of t....
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....ntative filed a letter requesting to treat the return filed earlier as the return in response to the notice under Section 148 of the Act. The Assessing Officer concluded the re-assessment proceedings and held that the activity carried on by the assessee was an adventure in the nature of trade and therefore income from sale of land has to be assessed as the business income and not as capital gains as offered by the assessee. He also disallowed the claim made under Section 40[a][ia] of the Act for non-deduction of tax at source before making payment to certain parties. 4. Being aggrieved by the said order, the assessee preferred an appeal before the Commissioner of Income Tax [Appeals] who partly allowed the same. Aggrieved by the same, the ....
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....ompound wall. 6. Learned counsel for the assessee submitted that the findings of the Assessing officer are incongruous in nature. The Assessing Officer has recorded that the assessee has entered into an agreement with Sri.Jawar Gopal and Sri.U.C.Rami Reddy on 01.12.2003 to sell the land at Amanikere, Bellandur and has taken an advance of Rs. 50,00,000/- each from the said parties but he didn't had even an inch of land. However, in the next paragraph, it has been recorded that the assessee purchased agricultural lands from various persons at Amanikere Bellandur between 25.08.2003 to 30.12.2004. It is thus evident that the Assessing Officer had failed to apply his mind in a right perspective. Considering the overall aspects, the Commissioner....
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....n was taxable as business income and not capital gains. It is significant to note that the said property was held by the assessee as long term capital asset. The Tribunal being the last fact finding authority, has recorded a finding that the contents of the letter alleged to have been written by the assessee to his partner do not clearly establish as to whether the assessee was really carrying on the activity of adventure in the nature of trade or that these properties were considered as trading assets by the assessee. Similarly, as regards the sale consideration of the property in question, addition has been made by the Assessing Officer merely based on the statement of Sri.Purushotham Reddy which is not substantiated by any other material....