TaxTMI 
TaxTMI 
2018 (9) TMI 1809
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....of Income Tax (Appeals)-I, Kolkata, (hereinafter the 'ld. CIT (A)'), passed u/s 250 of the Income Tax Act, 1961 (the 'Act'), for the Assessment Year 2006-07. 2. Facts in brief:- The assessee's, Shri Nirmalendu Sen and Smt. Sheila Sen, legal heir of Late Shri Bimalendu Sen, were co-owners of land situated at 74, 74/1 and 82 Topsia Road, Kolkata - 700 046. Shri Nirmalendu Sen and Late Shri Bimalendu Sen, entered into an partnership business on 05/03/2002, under the name and style of "East End Developers" with three other partners, namely, Shri Jugal Kishore Khetawat, Shri Vishal Khatawat and M/s. Khetawat Towers Pvt. Ltd., for the development of the above referred property. Shri Nirmalendu Sen and Late Shri Bimalendu Sen, contributed th....
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....bad in law. Further it was submitted that Section 50C of Act, applies as it is a statutory provision. On the issue of re-opening, the ld. D/R, relied on the judgment of Commissioner of Income-tax, Central-II, Kolkata v. Glass Equipment (India) Ltd. [2014] 47 taxmann.com 138 (Cal.). The ld. Counsel for the assessee, relied on the order of the ld. CIT(A). He also cited various judgments in support of the propositions. 4. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- . The addition in question, is made u/s 45(3) of the Act. The ld. CIT(A) on merits had followed the ord....
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..... 6 to 9 of the appellant are allowed." Considering the above observation and following the earlier decision for the A.Y. 2006-07 in the co-owner's case on identical facts, I am of the view that addition of Rs. 5,24,06.,587/- on account of long-term capital gain computed by the AO is directed to be deleted. These grounds are allowed. This decision is in line with the propositions of law laid down by the Mumbai 'A' Bench of the Tribunal in the case of DCIT, Mumbai vs. M/s. Amartara Pvt. Ltd. in ITA Nos. 6050/Mum/2016 & 6114/Kol/2016, Assessment Year 2012-13, order dt. 29/12/2017, wherein at para 9 the law on the issue has been explained as follows:- "9. Having heard both the sides, we find merit in the argument of the as....
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....mination of full value of consideration. Since the Act itself is provided for deeming consideration to be adopted for the purpose of section 48 of the Act, another deeming fiction provided by way of section 50C cannot be extended to compute deemed full value of consideration as a result of transfer of capital asset. This legal proposition is further supported by the decision of Hon'ble Supreme Court in the case of CIT vs Moon Mills Ltd (supra) wherein it was observed that one deeming fiction cannot be extended by importing another deeming fiction. Therefore, we are of the considered view that the profits or gains arising from the transfer of a capital asset by a partner to a firm in which he is or becomes a partner by way of capital con....
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....) on merits and dismiss this ground of the revenue on merits. 6. On the issue of re-opening in the case of Smt. Sheila Sen, legal heir of Late Shri Bimalendu Sen, the original assessment has been completed u/s 143(3) on 31/12/2008, and the re-opening is made beyond a period of four years. There is no whisper, in the reasons that there is failure on the part of the assessee to fully and truly disclose material facts necessary for the assessment. On this ground alone, the re-opening has to be quashed as held by the Hon'ble Delhi High in the case of Haryana Acrylic Manufacturing Co. v. Commissioner of Income-tax [2009] 308 ITR 38 (Delhi). Further, in the reasons, the Assessing Officer states that, the issue had been considered in the ass....