ACIT CIR 16(2), MUMBAI V. LAXMI M. AIYER, MUMBAI

ITA 1416/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79222 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 26-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH O RAJORA
• Keywords: Capital receipt

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I B ENCH, MUMBAI , !', % % % % &' . % . () . % . , !' * BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR.S.T.M. PAVALAN, JUDICIAL MEMBER ./ I.T.A. NO.1416/MUM/2011 ( + + + + / ASSESSMENT YEAR : 2006-07 THE ACIT-16(2), MATRU MANDIR, TARDEO ROAD, MUMBAI-400 007 / VS. MRS. LAXMI A. AIYER, L/1 BREACH CANDY APARTMENT 12 TH FLOOR, BHULABHAI DESAI ROAD, MUMBAI-400 026 ', ./ -. ./ PAN/GIR NO. : AABPM 7143B ( ,/ / APPELLANT ) .. ( 01,/ / RESPONDENT ) ,/ 2 / APPELLANT BY: SHRI SANJEEV JAIN 01,/ 3 2 / RESPONDENT BY: SHRI MAHESH O. RAJORA 3 4) / DATE OF HEARING :26.06.2014 56+ 3 4) / DATE OF PRONOUNCEMENT :26.06.2014 !7 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-27, MUMBAI DT.08.11.2010 PERTAINING TO A.Y. 2006-07. 2. THE GRIEVANCES OF THE REVENUE READ AS UNDER: ITA NO. 1416/M/2011 2 1. THE LD. CIT(A) ERRED IN TREATING THE AMOUNT REC EIVED BY THE ASSESSEE AS CAPITAL RECEIPT INSTEAD OF REVEN UE RECEIPT SINCE IT IS NOT DERIVED BY THE ASSESSEE FRO M ANY PARTICIPATION IN THE BUSINESS ACTIVITY OF THE FIRM. 2. THE LD. CIT(A) ERRED IN FOLLOWING THE DECISION O F THE PATNA HIGH COURT IN THE CVASE OF CIT VS MRS. JAYA BHASKARAN 168 ITR 256 IN WHICH THE PAYMENTS MADE WERE IN LIEU OF EXERCISE OF RIGHT BY THE ELDEST SUR VIVING CHILD OF THE DECEASED PARTNER TO NOMINATE ANY QUALIFIED PERSON AS A PARTNER, WHEREAS, IN THE CASE OF THE ASSESSEE THE PAYMENT WAS MADE TO THE ASSESSEE T O BOOST THE ATTENTION OF THE PARTNERS BY ENSURING THE CARE OF THE FAMILY ON THEIR DEATH. 3. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE STATED THAT THE ISSUES RAISED BY THE REVENUE ARE SQUARELY COVERED I N FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR EARLIER A SSESSMENT YEARS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCE DED TO THIS. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. T HE LD. CIT(A) AT PARA-3 OF HIS ORDER HAS FOLLOWED THE FINDINGS OF HIS PREDE CESSOR FOR A.Y. 2003-04 AND 2005-06. WE FIND THAT IN A.Y. 2003-04 IN ITA N O. 5894/M/09, THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE AS SESSEE AND IN A.Y. 2005-06 IN ITA NO. 2436/M/09, WE FIND THAT THE TRIB UNAL FOLLOWING THE DECISIONS OF P.H. DIVECHA VS CIT 48 ITR 222 (SC), CIT VS MRS. JAYA BHASKARAN 168 ITR 256 (PATNA) AND PADMARAJER. KADAM BANDE VS CIT 195 ITR 877 (SC) HAS HELD THAT THE AMOUNT IN QUESTI ON RECEIVED BY THE ASSESSEE CANNOT BE CHARGED TO TAX AS THE SAME ARE I N CAPITAL RECEIPT. AS NO DISTINGUISHING FACTS OR DECISIONS HAVE BEEN BROU GHT BEFORE US, RESPECTFULLY FOLLOWING THE DECISION OF THE CO ORDIN ATE BENCH, APPEAL FILED BY THE REVENUE IS DISMISSED. ITA NO. 1416/M/2011 3 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 26 TH JUNE, 2014. . !7 3 6+ 8 9!: 26.6.2014 6 3 ; SD/- SD/- (DR. S.T.M. PAVALAN) (N.K. BILLAIYA) !' /JUDICIAL MEMBER !' / ACCOUNTANT MEMBER MUMBAI; 9! DATED 26.6.2014 . . ./ RJ , SR. PS !7 !7 !7 !7 3 33 3 04 04 04 04 <+4 <+4 <+4 <+4 / COPY OF THE ORDER FORWARDED TO : 1. ,/ / THE APPELLANT 2. 01,/ / THE RESPONDENT. 3. = ( ) / THE CIT(A)- 4. = / CIT 5. >; 04 , , / DR, ITAT, MUMBAI 6. ;& ? / GUARD FILE. !7 !7 !7 !7 / BY ORDER, 14 04 //TRUE COPY// @ @@ @ / A A A A - - - - (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI