Compensation to end litigation – Capital gain or Business Profit?

A reading of the reported lengthy order of the itat goes to show / convince one to readily make out that both sides have made a sincerely painful and anxious attempt to exhaust all possible arguments , also cite all located precedents, so as to support own individual stance.
According to an independent view, for a proper understanding from an objective standpoint, a couple of aspects require to be highlighted / commented on:
1. In one’s understanding, it was not the case of either side that the consideration received was for ‘transfer’ of any capital asset acquired for a price (at a cost) or which could conceivably be regarded as one capable of being acquired for a price (cost) (much less, as one for which any cost improvement could be envisaged / imagined). If so, for obvious reasons, the question of taxing any income under the head of capital gains is a non-starter.
2. As is implied in the title to the write-up, in one’s own view rightly so, going by the facts and circumstances as narrated (so also accordingly urged by assessee), the consideration received, to be true to own courage of conviction, was nothing but “compensation to end litigation”, Should that be so, the question of bringing to tax any income under the head of ‘capital gains’ does not arise. In other words, at best, it is a ‘capital receipt’, but not ‘income’, which could be taxed either under section 45 or section 28(va)(a).
One of the arguments advanced by the assessee, relying on the Bombay HC’s opinion founded on the concept of ‘negative covenant’, was, in fact, to that effect. The itat, however, as is seen from paragraph 23 of the Order, has not accepted it but on the short ground as stated.

Perhaps, in the further proceedings, the aforementioned important argument could be expected to be pursued in extenso and pressed with all the force it seems to well deserve.