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2016 (2) TMI 573 - BOMBAY HIGH COURT

2016 (2) TMI 573 - BOMBAY HIGH COURT - TMI - Exclusion from the income of the firm, the amounts relatable to the retired/deceased partner/s share - diversion on account of overriding title in favour of the expartner/ s or their heirs/ executors by virtue of the partnership deed - Tribunal held that sum paid to ex partners amounted to diversion of income by overridding title and so was allowable as deduction? - Held that:- We find that the impugned order of the Tribunal has dismissed the Revenue' .....

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Chhotaray For the Respondent : Mr. Atul Jasani ORDER P. C. This Appeal by the Revenue under Section 260A of the Income Tax Act, 1961 (the Act) assails the order dated 14th June, 2013 passed by the Income Tax Appellate Tribunal (Tribunal). The appeal relates to Assessment Year 2008-2009. 2. The appellant Revenue urges following question of law for our consideration. "Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the sum of &# .....

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by inter alia recording the fact that in the order of the Commissioner of Income Tax (Appeals) (CIT(A)) had only followed the consistent view of the Tribunal in the assessee's own case for the earlier Assessment Years. In fact, the impugned order of the Tribunal has further placed reliance upon the decision of this Court in Income Tax Appeal No. 860 of 2009 dated 19/06/2009 rendered in the respondents - assessee's own case as well as decision of this Court in the case of CIT Vs. Mulla an .....

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ed colourable device to evade tax? We are unable to understand how the additional question of law can arise from the impugned order of the Tribunal. At no point of time before the authorities or before the Tribunal, the Revenue has urged that respondent-assessee had adopted any colourable device to evade tax. The appeal memo before us also does not refer to the above issue even remotely. This question does not arise from the order of the Tribunal and therefore as held by this Court in CIT Vs. Ta .....

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the issue is decided by this Court, it is still pending in the Apex Court on a question of law. It is not pending on issue of fact viz. adoption of colourable device. In the above view, the additional question of law sought to be raised by the Revenue cannot be raised in the present appeal and hence, is not considered. 7. Inspite of our pointing out to the learned Counsel for the Revenue that in the present facts, no substantial question of law arises for our consideration, he insisted upon poin .....

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to its retiring partner was diverted by overriding title and thus, never formed a part of the M/s.S.B.Billimoria & Co.'s income. Therefore, the view of the Tribunal was at variance with a view taken by this Court in Mulla & Mulla & Craigie Blunt & Caroe (supra) as well as in the respondent-assessee's own case in Income Tax Appeal No.860 of 2009 (the Commissioner of Income Tax - 11 Vs. M/s.Kanga & Co.) decided on 19/06/2009. Therefore the appeal of M/s. S.B.Billimoria .....

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