TaxTMI 
TaxTMI 
2018 (8) TMI 1926
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....at of the Assessing officer be restored. 3. The facts for both the years are same and identical. In assessment year 2010-11 the assessment was made on substantive basis and for assessment year 2008-09, it was made on protective basis. For assessment year 2008-09 the addition was made subsequent to the reopening. For assessment year 2008-09, the assessee has also challenged the reopening before the ld. Commissioner of Income Tax (Appeals). However, the ld. Commissioner of Income Tax (Appeals) has confirmed the validity of reopening. 4. In his order for assessment year 2008-09, on merits of the issue, the ld. Commissioner of Income Tax (Appeals) referred to his order for assessment year 2010- 11 where on the same issue, on the substantive addition he had deleted the addition. Referring to the same, the ld. Commissioner of Income Tax (Appeals) deleted the protective addition for assessment year 2008-09 also. In this background, we refer to the facts in the present case which reads as under: The facts leading to the addition are that the appellant was a partner with Mrs. Vandana Suresh Punwani in a partnership firm known as M/s. Vinky Developers since 22.10.1988 with profit shar....
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....f Rs. 2.95 crores and such amount is taxable u/s 45 of the Act The AO thereafter, allowed indexed cost of acquisition and also allowed deduction u/s 54 and determined long-term capital gain at Rs. 2,33,58,240/-and added it to the total income. 5. Upon the assessee's appeal, the ld. Commissioner of Income Tax (Appeals) noted that according to the Assessing Officer the partnership firm Vinky Developers was not in existence because it was neither registered nor any activity was carried on by it. That no return of income was filed by it. In this regard, the ld. Commissioner of Income Tax (Appeals) noted that there was a valid partnership deed between the assessee and Mrs. Vandana Suresh Punwani which had been taken cognizance by Justice Dr. B.P. Saraf, retired Chief Justice of J & K in the arbitration proceedings between the partners and subsequently by the Hon'ble Bombay High Court. The ld. Commissioner of Income Tax (Appeals) gave a finding that he has perused the copies of partnership deed and agreement for the development right in respect of the plot between the Vinky Developers and St. Peter's Church, order of the arbitration award and the order of the Hon'ble Bombay Hig....
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....the counsel and perused the records. The ld. Departmental Representative relied upon the orders of the Assessing Officer. 9. Per contra, the ld. Counsel of the assessee relied upon the findings given by the ld. Commissioner of Income Tax (Appeals). He reiterated that the assessee has received the amount of money pursuant to the dissolution of the firm and in these view of the matter, he claimed that the amount involved was capital receipt, not exigible to taxation. In this connection, the ld. Counsel of the assessee stated that the Assessing Officer's observation that there was no existence of the partnership firm and, hence, the amount received cannot be considered to have been received pursuant to the dissolution of the partnership deed, is not sustainable and has rightly been so found by the ld. Commissioner of Income Tax (Appeals). In this connection, the ld. Counsel of the assessee's submissions inter alia reads as under: In present case, the following relevant facts exists which confirm the existence of the partnership firm M/s Vinky Developers * The partnership is evidenced by a written deed executed on 22nd October, 1988 * The Firm had opened the bank account in ....
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....together then, it is crystal clear that 1. Vinky Developers the firm existed and 2. the fact that appellant received consideration for retirement from the firm and not for relinquishment of right in property at Bandra. 9. In this regard, the ld. Counsel of the assessee placed reliance on several case laws which reads as under: * CIT vs. R. Lingmallu Raghukar (124 Taxman 127 (SC)) * ACIT vs. Mohanbhai Pamabhai (165 ITR 166 (SC)) * CIT vs. Riyaz A. Sheikh (41 taxmann.com 455)(Bom) * Prashant S. Joshi vs. ITO (324 ITR 154) (Bom.) * Sharadha Terry Products Ltd vs. Asst. CIT (180 TTJ 284) (Chennai-Trib) * Chalasani Venkateswara Rao vs. ITO (349 ITR 423) (AP) * ACIT vs. N. Prasad (153 ITD 257) (Hyd.) * Mahul Construction Corporation vs. ITO (88 taxmann.com 181) (Mum-Trib) * Amit Kumar Choudhury vs. DCIT (2018) (2 TMI 1368)(Kol) * Shri Sachin Bhausaheb Nikam vs. DCIT (2016) (10TMI554)(Pune) * Ajay Kumar Doshi vs. Asst. CIT (2015) (12 TMI 1750)(Kol) * R. F Nangrani HUF, vs. DCIT and vice versa (2014) (12 TMI 11 75) (Mum-Trib) * DCIT vs. Mohmed Yusuf Ismail Tadha (2014) (11 TMI606)(Guj) * Smt. Hemlata S. Shetty vs. ACIT (2015) (12 TMI 11 74)....