1 In High Court of Judicature at Madras Dated : 20.4.2015 Coram Honourable Mr. Justice V.RAMASUBRAMANIAN and Honourable Ms. Justice K.B.K.VASUKI T.C.A.No.189 of 2015 Commissioner of Income Tax, Chennai. Appellant Vs Ms.Vidya Thangakumar Respondent Tax Case Appeal filed under Section 260A of Income Tax Act, 1961 against order dated 5.9.2014 passed by Income Tax Appellate Tribunal, Madras 'D' Bench, for assessment year 2009-2010, made in ITA No.1081/Mds/2014. For Appellant : Mr.S.Rajesh Judgment was delivered by V. RAMASUBRAMANIAN, J This tax case appeal is filed by Revenue questioning correctness of order passed by Income Tax Appellate Tribunal. 2. Heard Mr. S. Rajesh, learned counsel for appellant. 3. assessee, who is respondent, is individual. She filed return of income for assessment year 2009-2010 on 31.7.2009, admitting total income of Rs.1,04,880/-. Later, case was taken up for scrutiny. After verifying books of accounts, bank statement and property 2 documents, Assessing Officer passed order under Section 143(3) of Income Tax Act, accepting return of income vide order dated 16.12.2011. 4. Commissioner of Income Tax later issued show cause notice under Section 263, on ground that property, which assessee got by way of settlement, was sold by her over period of three years to various persons in form of undivided share and that therefore, income derived therefrom was business income. assessee filed objections. However, Commissioner of Income Tax considered objections, set aside assessment and directed Assessing Officer to treat income from property transaction as business income instead of capital gains. 5. As against said order of Commissioner of Income Tax dated 7.2.2014, assessee filed appeal in I.T.A.No.1081/Mds/2014 before Income Tax Appellate Tribunal. Tribunal, by order dated 5.9.2014, allowed appeal, holding that assessee was actually full time student undergoing MBBS course and that she is not indulging in any business activity and it was case of change of opinion. Aggrieved by said order of Tribunal, Revenue is on appeal before us. 6. main contention of learned counsel for Revenue is that merely because assessee was student, Tribunal ought not to have come to conclusion that she could not have indulged in any business activity. It is also contended that whenever property acquired by someone is sold in bits and pieces, after collecting development charges with 3 view to make profit out of same, same can be treated as business income as per law laid down by Supreme Court in Raja Rameshwara Rao Bahadur Vs. CIT [1961 (42) ITR 179 (SC]. 7. We have carefully considered above submissions. 8. It is not as though Tribunal merely went by fact that assessee was full time student undergoing MBBS course and that therefore, she could not have indulged in any business activity. It was one of reasons adduced by Tribunal for coming to conclusion that it did. 9. careful look at order of Tribunal would show that assessee got property by way of settlement. Thereafter, she entered into promoter's agreement on 18.12.2007 and construction agreement on 30.3.2008. It was in pursuance of those agreements that assessee was compelled to sell undivided shares in land, over period of three assessment years namely 2008-09, 2009-10, etc. assessee also filed return of income for assessment year 2008-09 under head 'long term capital gain'. 10. Therefore, Tribunal rightly concluded that transaction of sale of undivided shares in land merely started crystallizing from assessment year 2008-09 onwards and what is important is that Revenue accepted stand of assessee. Therefore, it was clearly case of change of opinion and it is now well settled that on basis of change of opinion, power under Section 143(3) cannot be invoked. 11. In so far as second ground is concerned, it is true that in Raja 4 Rameshwara Rao Bahadur, Supreme Court held that when person acquired land with view to selling it later after developing it, he is carrying on activity resulting in profit and activity can only be described as business venture. But, case on hand stands on different footing. assessee did not acquire any land for purpose of development and sale as part of any business venture. She got this property by way of settlement and she merely wanted to sell it. better method of selling it was found to be to entrust it to developer. Once agreement for sale is entered into in manner in which developer wanted, there is no way assessee would have had control over period of time, within which, entire transaction would have been concluded. Therefore, this is not fit case calling for our interference. 12. Accordingly, above tax case appeal is dismissed. 20.4.2015 Internet : Yes 5 V.RAMASUBRAMANIAN,J AND K.B.K.VASUKI,J RS To Income Tax Appellate Tribunal, Madras 'D' Bench. T.C.A.No.189 of 2015 20.4.2015 Commissioner of Income-tax, Chennai v. Vidya Thangakumar