TMI Blog2013 (10) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... earned CIT(A) has allowed the exemption under section 10(38) of the Act vide order dated 03/03/2009 and the department has not preferred any appeal against the said order. Therefore, to maintain consistency, the department ought not to have filed the appeal for the year under consideration. On the identical issue, the claim of the assessee was allowed in the preceding year by the learned CIT(A) and no appeal was preferred by the department against the said order. Therefore, keeping in view the principles of consistency the department ought not to have filed the appeal for the year under consideration in view of the ratio laid down by the Hon'ble Bombay High Court in the case of CIT Vs. Gopal Purohit reported in [2010 (1) TMI 7 - BOMBAY H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut Value (ALV) restricting at Rs. 16,000/- instead of Rs. 24,000/- estimated by the Assessing Officer. 3. The facts related to this issue in brief are that the Assessing Officer worked out ALV of the house property located at Detiya Magri by invoking the provisions of section 23(1) of the I.T. Act, 1961 (hereinafter referred to as "Act", for short) at Rs. 24,000/- and after allowing deduction @ 30% under section 24(a) of the Act, taken net house property income at Rs. 18,000/-. 4. The assessee carried the matter to the learned CIT(A) and submitted that the value was taken at Rs. 12,000/- by the predecessor of the learned CIT(A) vide order dated 03/03/2009 for the preceding assessment year in the assessee's own case, where the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the parties, it is noticed that an identical issue having similar facts has already been adjudicated by this bench of the tribunal in assessee's own case in ITA No. 247/JU/2007 for the A.Y. 2003-04 vide order dated 30/01/2008, copy of which is placed at pages No. 1 to 3 of the assessee's compilation. The relevant findings have been given in the said order at para 7, which read as under:- "7. After considering the rival submissions and perusing the relevant material on record, we find it as an undisputed position that the assessee was doing business activities in this unit in the preceding years as well. The AO had himself allowed set off of loss incurred in this unit against normal business income as noted above. In this year the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e." 9. Since the facts for the year under consideration are similar to the facts involved in the assessment year 2003-04 and the learned CIT(A) had followed the aforesaid referred to order of this bench of the ITAT, we, therefore, do not see any merit in this ground of the departmental appeal. 10. The last issue vide ground No.3 relates to the direction of learned CIT(A) to the Assessing Officer to treat the long term capital gain amounting to Rs. 19,00,196/- exempted under section 10(38) of the Act. 11. The facts related to this issue in brief are that in the computation of income, the assessee claimed long term capital gain exempted under section 10(38) of the Act. The Assessing Officer, however, treated the same as business profit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receding year by the learned CIT(A) and no appeal was preferred by the department against the said order. Therefore, keeping in view the principles of consistency the department ought not to have filed the appeal for the year under consideration in view of the ratio laid down by the Hon'ble Bombay High Court in the case of CIT Vs. Gopal Purohit reported in (2011) 336 ITR 287, wherein it has been held that "there should be uniformity in treatment and consistency when facts and circumstances for different years were identical particularly in the case of the same assessee". Against the aforesaid order, SLP filed by the department has been dismissed by the Hon'ble Supreme Court as reported at (2011) 334 ITR (St.) 308. 16. Similarly, the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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