K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal of the assessee reversing the view taken by the AO as well as CIT(A).
(2.) Counsel for the appellant has framed following questions of law:- "i) Whether in the facts and circumstances of the case the ITAT was justified in deleting the addition of Rs. 7834422/- made by the Assessing Officer on account of short term capital gain, by treating the transaction as business transaction. ii) Whether in the facts and circumstances of the case the ITAT was justified in treating the short term capital transaction as business receipt without appreciating the fact that assessee has claimed it under section 44AD as business receipt is belated return and only after initiation of enquiries by the department. Further, the assessee has filed earlier year returns and was unable to explain the said asset as stock in trade, specially when several other properties are shown as capital assets."
(3.) Counsel for the appellant has contended in view of the statement which has been recorded by the department which reads as under:- ...[VERNACULAR TEXT OMITTED]...;