2018 (12) TMI 1262

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....rporate entity has been assessed u/s 143(3) on 10/03/2014 at Rs. 12.82 Crores after certain additions / adjustments / disallowances as against returned income of Rs. 12.11 Crores e-filed by the assessee on 29/09/2011. 3.1 The assessee is aggrieved by the fact that income received by the assessee by way of rent & service charges offered as Business income has been assessed as Income from House Property. Both the representatives converge on the point that this issue was to be restored back to the file of Ld. Assessing Officer [AO] in line with the directions given by Tribunal in assessee's own case for AYs. 2008-09 to 2010-11. Upon perusal, we concur with the same. 3.2 In view of the admitted position, the matter stand remitted back to the ....

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.... consideration of the learned Commissioner (Appeals) and to impress upon the fact that by virtue of these additional evidences holding the assessee as a monthly tenant, the decision of the Tribunal in earlier assessment years cannot be followed. It is apparent on record, learned Commissioner (Appeals) has totally ignored such evidences filed by the assessee. Therefore, keeping in view the decision of the Tribunal in assessee's own case for assessment year 2008-09 and 2009-10 as referred to above, we restore the issue to the file of the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee. It is made clear, the Assessing Officer must consider all the evidences including the orders of the City Civil ....

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....ereupon. 5.2 During assessment proceedings, it transpired that the assessee sold a flat situated at Haribhawan for sale consideration of Rs. 11 Crores. The flat was stated to be purchased in the year 1991-92. The assessee computed Long Term Capital Gain of Rs. 10.32 Crores and offered the same @20% after adjusting brought forward losses. The Ld. AO opined that the gain was to be treated as short term capital gain in terms of Section 50 since the said flat formed block of asset in the Balance Sheet. Resultantly, the gains were recomputed as Rs. 10.96 Crores and the same were treated as short term in nature which attracted normal rate of income tax. 5.3 Before Ld. CIT(A), it was pointed out that the assessee never claimed depreciation again....