TMI Blog2018 (12) TMI 1947X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of Assessing Officer to examine the facts in proper perspective and assess the income in the hands of assessee as per law. CBDT vide Circular No.14(XL-35) of 1955, dated 11.04.1955 had laid down the said directions for AO and the same merits to be applied in assessing the income in the hands of assessee. Accordingly, we find no merit in the grounds of appeal raised by Revenue and we hold that income arising on sale of unit in Gurudev Towers is to be assessed as Income from business and the provisions of section 50C of the Act are thus, not applicable. Addition u/s 68 by assessing peak cash balance in assessee s bank account - HELD THAT:- AO made the addition which was the peak of cash balance as per Cash Book, but which also included opening cash - The said opening cash balance has been accepted in the hands of assessee and once the same has been accepted in earlier years, there is no merit in including the same as addition under section 68 of the Act. So, upholding the order of CIT(A) in this regard, we dismiss the ground of appeal No.3 raised by Revenue. Addition made on account of loan received from wife of assessee - said addition was made in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, the assessee had furnished the return of income declaring total income of ₹ 34,67,526/-. The assessee was an individual and had declared income from short term capital gains, long term capital gains and income from other sources in the return of income. The Assessing Officer noted that the assessee had furnished the return of income in ITR-2, which was for individual and HUF having no income from business and profession. The Assessing Officer had information that the assessee had sold Basement of Gurudev Towers, Canada Corner, Nashik, admeasuring 2711.98 sq.ft. to Shirpur Co-op. Bank, Shirpur on 24.04.2010 for ₹ 66,51,000/-. Stamp duty valuation of said Basement was ₹ 1,44,53,000/-. The assessee had declared the said income as short term capital gains. However, during the course of assessment proceedings, the assessee pointed out that due to oversight the return was filed in Form No.ITR-2 declaring short term capital gains as against correct income from business. The assessee had also sold land at Kopergaon, against which it had declared capital gains at ₹ 1,67,946/-; vis- -vis Basement in Gurudev Towers, the assessee had declared the short term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling any return of income. Hence, the creditworthiness of wife does not stand proved. The assessee was held to have not satisfied the genuineness of transaction and sum of ₹ 5,59,875/- was added in the hands of assessee. 8. The CIT(A) noted that the issue in dispute was whether the sale of property was capital gains or business income, wherein the Assessing Officer had considered the same as capital gains and applied the provisions of section 50C of the Act. However, the assessee claimed it to be business income. The CIT(A) observed that on perusal of assessment order in column 5 the Assessing Officer has noted the source of income to be construction and sale of immovable property, which she noted that the assessee was engaged in business of construction. She also referred to order of Assessing Officer passed under section 143(3) r.w.s. 147 in this regard. Reference was made to the assessment order for assessment years 2008-09, 2009-10 and 2010-11 and the asset in all the years was treated as stock-in-trade. She thus, observed that there was no reason to treat the sale of property as capital gains in the current assessment year. Merely because the assessee had filed return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of appeal raised by Revenue are against assessability of capital gains in the hands of assessee. 13. On perusal of record and the order passed by CIT(A) and various evidences filed by the assessee, which have also been taken into consideration by the CIT(A), it is an admitted fact that the assessee was carrying the business of construction. The plot which has been sold during the year was part of stock-in-trade in earlier years. The assessee for assessment years 2008-09 to 2010-11 had filed the returns of income in response to notices issued under section 148 of the Act and even the tax audit report, wherever applicable, were filed for all these years and the sale of unit in Gurudev Towers was accepted as business income of assessee. In such scenario, there is no reason to treat the said income differently in the year under consideration. The assessee had sold one of the units of Gurudev Towers in the year and just because the assessee declared the same as short term capital gains but later pointed out that the same was by way of an inadvertent mistake, then such declaration made by assessee cannot be held against the assessee. It is the duty of Assessing Officer to exam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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