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2015 (7) TMI 658 - ITAT AHMEDABAD

2015 (7) TMI 658 - ITAT AHMEDABAD - TMI - Sale of land - Long Term Capital Gain v/s income from business - Held that:- CIT(A) has followed the order of his predecessor passed in AYs 2006-07 & 2007-08. The matter was traveled upto the stage of Tribunal who was pleased to restore the issue back to the file of ld.CIT(A) for fresh adjudication by observing as during the appellate proceedings assessee filed three compilations. In reply to the query of the Bench, it was stated that all the documents f .....

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ng 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 – AY 2008-09 - Dated:- 9-7-2015 - SHRI G.D. AGARWAL AND SHRI KUL BHARAT, .....

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nce. 2. First, we take up the appeal filed by the Revenue, i.e. ITA No.2708/Ahd/2011 for AY 2008-09. The Revenue has raised the following grounds of appeal:- 1. The Ld.Commissioner of Income tax (A) has erred in law and on facts in deleting the addition of ₹ 61,01,210/- as Long Term Capital Gain, and in treating the income as income from business. 2. On the facts and circumstances of the case, the Ld.Commissioner of Income tax(A) ought to have upheld the order of the Assessing Officer. 3. .....

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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 o .....

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ome in to the books of account (balance sheet of the assessee) in the year 1984 as claimed by the assessee. Index cost of land as on 31.03.2005 would accordingly be ₹ 1,65,130/- (Rs.44,190/-* 497/133). Long term capital Gains = Full value of Consideration - Indexed cost of acquisition (Fair market value at the time of conversion of capital asset in to stock in trade) (as computed above) = R.5,20,43,513-Rs.165130 = ₹ 5,18,78,380 The year wise breakup of long term capital gains is as u .....

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fully 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 further held that there would be taxability of capital gain in t .....

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% has been taxed in A.Y. 06-07 & 07-08 respectively. During the course of appellate proceedings, it has been pointed out by the appellant that CIT(A)-I, Ahmedabad vide the order dated 12/11/2009, in respect of A.Y. 2006-07 & 2007-08 has allowed the appeal of the appellant and held that the entire business income was to be taxed and no part thereof should be taxed as capital gain. I have perused the order of ld.CIT(A)-I, Ahmedabad passed by him in the case of the appellant vide Appeal No. .....

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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 Tribun .....

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y the same, assessment records were called for and it was found that certain documents claimed to have been filed 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 di .....

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