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2019 (11) TMI 77 - AT - Income TaxRevision u/s 263 - sale of the land treated as business income or capital gains - AO has not assessed the said income from sale consideration of undivided interest in the land under the head “Business” as is of the view of the ld.PCIT - HELD THAT:- This property is held by the assessee for more than seven years. It is an admitted fact that the assessee had proposed to start a Software Technology Park, and on it is failure to do so, the assessee had sold the said undivided interest in its land to various flat owners. The business of the assessee is not of purchase and sale of the land. The assessee has in its return claimed the same as giving rise to long term capital gains, which has also been examined by the Assessing Officer in the course of original assessment. The same has also been examined by the Assessing Officer in the course of Wealth Tax Assessment. What is the error in the finding of the Assessing Officer has not been pointed out by the ld. PCIT in his impugned order passed u/s.263 of the Act. Just because, the Assessing Officer has not assessed the said income from sale consideration of undivided interest in the land under the head “Business” as is of the view of the ld.PCIT, cannot term the assessment order passed by the Assessing Officer to be one done by non-application of mind, or one done without making due verification, or one done without making necessary enquiries. Just because by shifting the head of income, the assessee would be hit by tax liability cannot be ground enough for shifting the capital gains disclosed by the assessee to the business head, especially when the property has been shown as an investment by the assessee and the same has also been clearly demarcated and the assessee has also not done any business activity of construction in respect of the said property. In this circumstance, we are of the view that the order of PCIT passed u/s.263 of the Act is unsustainable - Decided in favour of assessee.
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