2015 (7) TMI 658

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....p together and are being disposed of by this consolidated order for the sake of convenience. 2. First, we take up the appeal filed by the Revenue, i.e. ITA No.2708/Ahd/2011 for AY 2008-09. The Revenue has raised the following grounds of appeal:- 1. The Ld.Commissioner of Income tax (A) has erred in law and on facts in deleting the addition of Rs. 61,01,210/- as Long Term Capital Gain, and in treating the income as income from business. 2. On the facts and circumstances of the case, the Ld.Commissioner of Income tax(A) ought to have upheld the order of the Assessing Officer. 3. It is, therefore, prayed that the order of the Ld.Commissioner of Income tax (A) may be set-aside and that of the Assessing Officer be r....

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....31.03.2005 would accordingly be Rs. 1,65,130/- (Rs.44,190/-* 497/133). Long term capital Gains = Full value of Consideration - Indexed cost of acquisition (Fair market value at the time of conversion of capital asset in to stock in trade)  (as computed above) = R.5,20,43,513-Rs.165130 = Rs. 5,18,78,380   The year wise breakup of long term capital gains is as under:- A.Y. % of revenue recognized by the assessee Incidence of capital gains Tax on Long term Capital Gains 20%) 2006-07 40% 20751353 8300541 2007-08 49% 25420406 12456000 2008-09 11% 5706622 1141324 The capital gains arising in A.Y. 2008-09 has accordingly to be assessed in the assessmen....

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....appellant and held that the entire business income was to be taxed and no part thereof should be taxed as capital gain. I have perused the order of ld.CIT(A)-I, Ahmedabad passed by him in the case of the appellant vide Appeal No.CIT(A)- I/CC.1(1)/535&534/2008-09 dated 12/11/2009 for A.Ys.06-07 & 07-08, wherein same issue has been decided by him. The addition made by the A.O. was in a similar manner. The share of capital gain of 40% & 49% for A.Y. 06-07 & 07-08 respectively has been considered by him and after considering the submission of the appellant, he has given his finding and has directed the A.O. to delete the working of capital gain and tax entire business income and not to treat any part thereof as capital gain. Respectful....

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....mission of the assessee's counsel. Therefore, the matter is hereby restored back to the file of Ld.CIT(A) accordingly." 5.3. Under these circumstances, we deem it proper that the present appeal be also restored to the file of ld.CIT(A) for fresh adjudication after obtaining a remand report from the AO. Thus, this ground of Revenue's appeal is allowed for statistical purposes. 6. Ground Nos.2 & 3 of Revenue's appeal are general in nature which require no independent adjudication. 7. In the result, Revenue's appeal is allowed for statistical purposes. 8. Now, we take up the Assessee's Cross Objection No.11/Ahd/2012 for AY 2008-09 (arising out of ITA No.2708/Ahd/2011 - for AY 2008-09), wherein following grounds have been taken:- ....