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2019 (11) TMI 1304 - HC - Income TaxCorrect head of income - income from the sale of gala (real estate / land and construction of structure) - capital gains u/s 45 or business income u/s 28 - Tribunal confirming the order of CIT(A) assessing the income as capital gains - HELD THAT:- All the three authorities have assessed the evidence on record. The foundation of the Appellant’s assertion that the income is to be treated as a business income is that the agreement in question was only in respect of development rights and ownership did not pass on the the Appellant. Commissioner (Appeals) and the Tribunal, after examining the terms of the agreement in question dated 1 November 2007, rendered a finding that the Assessee had purchased the land along with right and whatever be the nomenclature, it was an outright purchase. There was no argument made in the alternative by the Appellant before the Tribunal as sought to be urged before us. It has been the consistent stand of the Appellant that the agreement in question is only a development agreement. In the circumstances, the issue being a question of fact, question (a) does not give rise to any substantial question of law. Valuation of the gala to the valuation officer as per section 50C(2) - HELD THAT:- As regards this question, we do not find that any submission made before the Tribunal in this regard. There is no submission nor any ground taken in the appeal memo before the Tribunal that the Assessing Officer should have referred the valuation of gala to the Valuation Officer as per section 50C (2) of the Act. Allowable business expenses - expenses included in the cost of construction of the said gala - HELD THAT:- Commissioner (Appeals) and the Tribunal have examined the claim of the Appellant towards business expenditure by examining the material produced by the Appellant. The Commissioner (Appeals), after examining the evidence, has rendered a finding that in the absence of confirmation from the parties, the contention of the Appellant was not acceptable. This finding has been confirmed by the Tribunal. This is a possible view which can be taken on the assessment of evidence. We do not find any perversity in the view taken by the Commissioner (Appeals) and the Tribunal in coming to this conclusion. This finding of fact will equally apply to a claim for cost of improvement of capital asset under section 48 of the Act. No substantial question of law.
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