TaxTMI 
TaxTMI 
2018 (4) TMI 1212
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....acts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition of Rs. 14,15,61,370/made u/s 45(1) of the Income Tax Act under the head long term capital gains? (ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in not appreciating that the right of partner in the partnership firm is a capital asset u/s 2(14) of the Act and retirement of partner lead to extinguishment of such right in the firm amounting to transfer u/s 2(47) of the Act giving rise to capital gains exigible to tax? (iii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in not holding the transaction amounting to transfer within t....
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.... of income filed u/s 139(1) and not u/s 139(4)?" 3. Regarding question nos. (i) to (iv): (a) The impugned order of the Tribunal allowed the respondent assessee's appeal on the common issues as made out in question nos. (i) to (iv) i.e. whether the amount received as goodwill on retirement is taxable in the hands of the retiring partner as capital gain. This by following the order of its coordinate bench in the case of Riyaz A. Sheikh Vs. Income Tax Officer, (ITA No.352/PN/2006) dated 29th October, 2010 and the order of this Court upholding the above view of the Tribunal reported as Commissioner of Income Tax-III, Pune Vs. Riyaz A. Sheikh (2014) 221 Taxman 118. In the aforesaid decision, the question urged by the Revenue for considerat....
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....e find that there is nothing on record to indicate that it was a Revenue's contention before the authorities that the amount received by the respondent was not goodwill. In fact, the submission that in the absence of goodwill being indicated in the balance sheet of the partnership firm, there could not be no goodwill available to the firm is an issue being urged for the first time before this Court. Therefore, in the absence of this issue being raised before the authorities under the Act, it will not be question arising from the case. Thus, there is nothing on record on facts to indicate that the amount received by the respondent is not goodwill. Therefore, the decision of this Court in Riyaz A. Sheikh (supra) will apply. (e) So far as....
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....warrant interference. The remedy if any would be an appeal to the Apex Court. (g) In response, Mr. Malhotra, informs us that the decision of this Court in Riyaz A. Shaikh (supra) was not appealed to the Apex Court because of low tax effect. At the relevant time, the CBDT Circular / Instruction No.3/2011 dated 9th February, 2011 governed the filing of appeals by the Revenue. In such cases, the Instruction particularly states that when a appeal is not filed for low tax effect, it must also record that the decision is not acceptable. No such record is shown. Further, nothing has been shown to us as to whether the decision in case of Rajnish M. Bhandari (supra) has been challenged, if not, why not. We must proceed on the basis that it has been....