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2011 (5) TMI 697 - AT - Income TaxWhether the land under reference represents the assessee's capital expenditure (asset) or a stock-in-trade?. - held that:- The answer lies in intention with which the property is purchased/acquired and which needs to be gathered from the entirety of the facts and circumstances, even as held by the Apex Court in the cases relied upon by the Revenue. - Both in terms of intention and action, the transaction of purchase and sale of rubber estate represents a business activity and, thus, stands rightly assessed as business income u/s. 28(i) of the Act. We decide accordingly. Depreciation for four vehicles, expenses on running and maintenance of vehicles, being car and jeep - vehicles were explained to be used by the four working partners for the purposes of the firm - no personal vehicle was either owned or maintained by the partners, so that a part user of the vehicles for their personal purposes could not be denied, the AO estimated a user of 20% as toward personal purposes, so that Rs. 59000/- qua depreciation and a lump sum of Rs. 50000/- qua maintenance expenditure stood disallowed u/s. 38(2) - same stood confirmed. Disallowance of brokerage expenses - paid to five different persons - without deduction of tax at source, i.e., by applying s. 40(a)(ia) of the Act - default u/s. 40(a)(ia), which is a non obstante provision, is admitted - in the case of Divya Business systems (P.) Ltd. (2010 -TMI - 206405 - ITAT, Cochin ), and wherein, it after consideration of the issue in all its aspects, confirmed the application of the provision in case of violation of the provision - revenue authorities is, therefore, confirmed on this issue as well - assessee's appeal is dismissed.
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