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2011 (12) TMI 380 - ITAT DELHICapital gain Vs. Business income - order of CIT(A) - appeal by revenue - held that:- Although it would have been more appropriate to deal with the issues in detail, where about 25 pages were devoted only to reproduction of assessment order, grounds of appeal, remand report etc. Issues on merit have been decided in two pages without disclosing properly the process of reasoning. However, it is also a fact that bare essential ingredients for coming to the conclusion have been mentioned in this part of the order. In regard to the excess income, no fact has been narrated, but the matter has been restored to the file of the AO for verification and for giving effect to the rectification in the figure of capital gain. - remand order of CIT(A) does not amount to perversity. - Decided against the revenue. Where the appeal involves inter-connected grounds having impact on one another, the matter should be considered in a broad perspective. It is true that the appellant should not be made to suffer on account of failure of respondent to file the appeal, but equally the procedural rule should not be interpreted in a manner so as to confer a relief on the appellant to which he is not entitled. Regarding addition of Rs. 16,93,42,000/-, made by the AO on account of income accrued on advance received for sale of land - Held that: The twin conditions of execution of written agreement and handing over of the possession have to be cumulatively satisfied in order to bring the case within the ambit of section 2(47)(v) read with section 53A of the Transfer of Property Act - Therefore, it is held that the property has not been transferred in this year. It has also not been sold in this year. Since the transaction of transfer has not taken place in this year, nothing can be brought to tax as business income in this year. In this view of the matter, the money received is only an advance, which will get taxed as and when the transaction actually takes place. This happened in the immediately succeeding year. - Decided against the revenue. Regarding Capital or business income - lands had been shown as fixed assets in the balance sheet of the assessee - Held that:- entry in the books of account is not conclusive in deciding the appropriate head of income - It is no doubt true that the MOA permits the assessee to carry on the business of purchase and sale of land. It had, in fact, carried on such business also - an assessee could be trader as well as investor in land simultaneously, depending upon what his intention is and how he treats the asset in question - the facts on record lead to an inference that the land was held as an asset - Surplus is treated as capital gain - Decided against the revenue.
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