TMI Blog2015 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... before AO were not part of the assessment record. Learned counsel of the assessee was fair enough to concede that the papers which are not part of assessment records may be treated as additional evidence before Ld.CIT(A) and therefore matter may be sent back to the file of Ld.CIT(A) for fresh adjudication after obtaining remand report from the AO on this additional evidence. Ld.DR did not object to this submission of the assessee’s counsel. Therefore, the matter is hereby restored back to the file of Ld.CIT(A) accordingly. Thus we deem it proper that the present appeal be also restored to the file of ld.CIT(A) for fresh adjudication - Decided in favour of revenue for statistical purposes. - I.T.A. No.2708/Ahd/2011, CO No.11/Ahd/2012 – ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued to the assessee and the assessment u/s.143(3) of the Act was framed vide order dated 28/12/2010. While framing the assessment, the Assessing Officer (AO in short) computed the Long Term Capital Gain pertaining to the AY 2008-09 at ₹ 57,06,622/-. Against the said assessment order, the assessee filed an appeal before the ld.CIT(A), who after following the order of his predecessor passed in AYs 2006-07 2007-08 allowed the appeal of the assessee. Aggrieved by the order of the ld.CIT(A), now the Revenue is in appeal before us. 4. Apropos to ground No.1, the ld.Sr.DR submitted that the ld.CIT(A) has followed the order of his predecessor passed in Appeal No.CIT(A)-I/CC.1(1)/535 534/2008-09 dated 12/11/2009 pertaining to AYs 2006-07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capital gains arising in A.Y. 2008-09 has accordingly to be assessed in the assessment proceedings of A.Y. 2008-09. This long term capital gain would not be eligible towards claim of deduction u/s.80IB 5.1. However, the ld.CIT(A) allowed the appeal by observing as under:- Decision: I have carefully perused the findings of the assessing officer and submissions made by the ld.AR. The A.O. has made the addition as he considered that the land which was part of the construction project was not a business asset but held by the firm as an immovable property in the nature of long term investment. He, therefore, held that the firm M/s.Desai Co., who is a partner in the appellant firm was not in the activity of business. He furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness income and not to treat any part thereof as capital gain. Respectfully following the decision of ld.CIT(A)-I, Ahmedabad in the case of the appellant, the A.O. is directed to delete the working of the capital gain and tax the entire business income and not to treat any part thereof as capital gain. The ground of appeal is, therefore, allowed. 5.2. There is no dispute with regard to the fact that the ld.CIT(A) has followed the order of his predecessor passed in AYs 2006-07 2007-08. The matter was travelled upto the stage of Tribunal (ITAT Ahmedabad C Bench) by way of IT(SS)A Nos.30 31/Ahd/2010 for AYs 2006-07 2007-08 respectively, wherein the Tribunal vide its order dated 29/11/2013 was pleased to restore the issue back to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/Ahd/2011 for AY 2008-09), wherein following grounds have been taken:- 1. On the facts and in circumstances of the case, the CIT(A) has grossly erred in not adjudicating upon the respondent s alternative plea before him regarding value to be adopted for the purpose of section 45(2) of the I.T.Act, on the ground that he had ordered for the deletion of the addition itself and directed to delete the working of capital gain. 2. On the facts and in the circumstances of the case, the CIT(A) has erred in not accepting the assessee s plea that it was not at all a fit case for levy of interest u/s.234A, 234B and 234C of the I.T.Act. 3. The respondent craves leave to add, alter, amend and/or withdraw any ground or grounds of cross ..... X X X X Extracts X X X X X X X X Extracts X X X X
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