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TMI Blog2010 (1) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Rs. 45 crores of which Rs. 30 crores was to be paid to the appellant as a consideration for handing over quiet and peaceful possession of the tenanted premises subject to fulfilment of certain conditions, inter alia, as under:- (i) to get a portion of the above premises vacated from the persons to whom the same were sublet, and (ii) to close down the processing unit and get the encumbrance on the premises of the employees cleared by settling their dues including payment of retrenchment compensation. Thus the appellants were under contractual obligation to remove the above encumbrances before the sale and handing over of possession could be contemplated. (3) Due to various differences and disputes which arose between the partners of the appellant and beneficiaries of the landlord trust 'inter se' and the purchasers on the other hand certain litigation ensued and finally the matter was settled in terms of court decree dated March 19, 2002 on which date the tenancy rights were transferred by handing over possession of premises as contemplated. (4) Accordingly in the return of income filed for the assessment year 2002-03 the appellant disclosed long-term capital gain on su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated October 7, 1999 holding that no transfer took place. (ii) The Assessing Officer in the order made under section 143(3) dated March 24, 2000 for the assessment year 1997-98 again brought to tax the capital gain on this issue for the assessment year 1997-98 on the ground that BMC vide letter dated January 24, 1997 commencement certificate for construction of the building was issued. However while computing capital gain he allowed deduction from the consideration amount of expenditure in connection with transfer on all the items mentioned in paragraph 4 to the extent of payment made of Rs. 8,99,45,717 against without prejudice deduction claimed of Rs. 10,81,39,879. The same was confirmed in appeal by the Commissioner of Income-tax (Appeals) and the appeal filed by the appellant to the Income-tax Appellate Tribunal, it was held that no transfer had taken place during this year also and the entire addition was deleted. In view of the main ground of appeal having been allowed by the Income-tax Appellate Tribunal, the alternative ground of appeal for deduction of expenses as claimed did not survive and therefore was not decided. (iii) The Assessing Officer again brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 2002-03 of the said expenditure against capital gain arising on surrender of tenancy rights. The claim of such deduction was also fully explained during the assessment proceedings which is a matter of record. Neither the claim has been held to be 'mala fide' nor is there any finding that the said claim was not substantiated. In fact the record with the Department bears ample testimony to the fact that the said claim was made 'bona fide' and the same was supported by the judicial pronouncements including the order of the Income-tax Appellate Tribunal and the Commissioner of Income-tax for the assessment year 1995-96 and the assessment order for the assessment year 1997-98 wherein for deduction claimed under section 48(i) was considered and allowed. In the course of assessment proceedings for the assessment year 2002-03 the claim made was again fully substantiated and was explained but the submissions made have been simply not accepted resulting in the said deduction having not been allowed by the Assessing Officer. There is no finding that the claim was not 'bona fide'. The deduction has not been allowed mainly on difference of opinion between the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal that no transfer took place during this year also was accepted by him leading to the deletion of capital gain. (e) The Assessing Officer in the quantum assessment for this year following her predecessor's order for the assessment year 1998-99 did not allow the deduction under section 48(i) as claimed in the return of income filed which was carried in appeal to the Commissioner of Income-tax (Appeals) by the appellant. (f) The Commissioner of Income-tax (Appeals) mainly following the decision in Radio Talkies [1999] 238 ITR 872 (Bom) upheld the disallowance made by the Assessing Officer which order has been carried in appeal to the Income-tax Appellate Tribunal by the appellant and is pending hearing and final disposal. In the backdrop of the above facts I observe that:- (i) the disallowance in the quantum assessment has been made on difference of opinion between the two Assessing Officers on the one hand and between the appellant and the Assessing Officer on the other hand, (ii) the appellant has all along disclosed full facts in connection with the claim made in the return of income and furnished detailed explanations backed up by judicial pronouncements, (iii) th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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