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2015 (5) TMI 123 - HC - Income TaxIncome from the property transaction - business income or capital gains - Revenue contented that merely because the assessee was a student, the Tribunal ought not to have come to the conclusion that she could not have indulged in any business activity - Held that:- A careful look at the order of the Tribunal would show that the assessee got the property by way of settlement. Thereafter, she entered into a promoter's agreement on 18.12.2007 and a construction agreement on 30.3.2008. It was in pursuance of those agreements that the assessee was compelled to sell undivided shares in the land, over a period of three assessment years namely 2008-09, 2009-10, etc. The assessee also filed a return of income for the assessment year 2008-09 under the head 'long term capital gain'. Therefore, the Tribunal rightly concluded that the transaction of sale of undivided shares in the land merely started crystallizing from the assessment year 2008-09 onwards and what is important is that the Revenue accepted the stand of the assessee. Therefore, it was clearly a case of change of opinion and it is now well settled that on the basis of the change of opinion, the power under Section 143(3) cannot be invoked. The assessee did not acquire any land for the purpose of development and sale as part of any business venture. She got this property by way of a settlement and she merely wanted to sell it. The better method of selling it was found to be to entrust it to a developer. Once an agreement for sale is entered into in the manner in which a developer wanted, there is no way the assessee would have had control over the period of time, within which, the entire transaction would have been concluded. Therefore, this is not a fit case calling for our interference. - Decided against revenue.
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