TMI Blog2014 (2) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... ) - Whether the income arose out of any business activity or out of capital gain is essentially a question of fact or a mixed questions of law and fact - Both the CIT (Appeals) and the learned Tribunal agreed as regards the fact that the income arose out of capital gain - revenue could not point out any infirmity in the view taken by the CIT (Appeals) and the Tribunal – there is no question of law arises in the appeal to be entertained – Decided against Revenue. - GA 3281 of 2013, ITAT 180 of 2013 - - - Dated:- 17-2-2014 - Girish Chandra Gupta And Sudip Ahluwalia,JJ. For the Appellant : Mrs. S. Das Chandra, Advocate For the Respondent : Mr. R. K. Biswas, Advocate ORDER The Court The Revenue has come up in appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in trade and thereafter on the basis of a Board Resolution and discussion by the Board of Directors a revised Balance Sheet was prepared in which land was converted into Investment. It is also not disputed that the revised balance sheet was prepared after the land had been sold and the AO considering this to a crucial aspect of the case held that the appellant s action was an after thought and colourable method for evasion of tax and applied the case of the Supreme Court in the case of Mc. Dowel Co. Ltd. reported in 154 ITR 148. The A/R on the other hand submitted that what had to be understood was as to whether or not the land which was sold constituted a business asset or a capital asset, notwithstanding the fact that the land was shown a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue discussed in some detail before forms the raison d etre of the argument. In the circumstances, I concur with the appellant that the sale of land be treated as capital gain and not business income. The learned Tribunal concurred with the views of the CIT (Appeals) holding that On a careful consideration of the facts and circumstances of the case, we are inclined to uphold the order of the ld. CIT(A) for the simple reason that the basic facts leading to computation of capital gains was not a choice but in accordance with the provision of Income tax Act, in so far as, the stock in trade could be converted for the purpose of transfer or sale as per the business requirement of the assessee as per facts on record. The computation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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