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The Commissioner of Income Tax I, Nashik Versus The Nashik Road Deolali Vyapari Sahakari Bank Ltd.

2016 (10) TMI 632 - BOMBAY HIGH COURT

Profit on sale of the plot of land - to be assessed under the head of “Capital Gains” OR "business receipts” - Held that:- We find that the impugned order of the Tribunal has rendered a finding of fact to the effect that the plot of land is owned by the respondent assessee. This plot was a subject matter of sale during the previous year relevant to the subject assessment year and had always been shown as a fixed asset in its balancesheet. Further, the Tribunal records the fact that the business .....

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er in not entertaining a claim in the absence of a Revised return of income. However, this submission overlooks the fact that in Goetze (India) Ltd. (supra), it was clarified that the same does not deal with the power of Appellate Authority to consider a new point of law. In any case, this Court in Commissioner of Income Tax Vs. Pruthvi Brokers and Shareholders P. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT], on consideration of the Apex Court's decisions in Goetze (India) Ltd.(supra) and Nationa .....

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G. S. Kulkarni, JJ. Mr. Sham V. Walve for the appellant Mr. Mihir Naniwadekar for the respondent ORDER P.C. 1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 30th May, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order is in respect of Assessment Year 2008-09. 2. The Revenue has urged following question of law for our consideration : (i) Whether on the facts and in the circumstances of the case and in law, the Trib .....

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ministrative building. Therefore, it sold the plot of land. The respondent assessee in its return of income had claimed that the sale of plot of land was a sale of capital asset and subject to long term capital gain. However, it had credited the consideration received on the sale of the plot to the profit and loss account. But thereafter, it omitted to reduce it while arriving at its taxable income under the head of business income. In the above view, the Assessing Officer held that the profit / .....

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ding in land. Consequently, the amounts received by it on the sale of plots cannot be treated as a part of its business activity. Moreover, the plot of land was also shown as a part of its fixed asset and not as stock-in-trade in its Balance Sheet. In the above circumstances, the Tribunal held that once the amount is brought to tax under the head Capital Gain the same cannot be again assessed as profit on account of trading activity of the respondent assessee. In the above view, the Tribunal dir .....

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or even by filing a revised return. In these circumstances, the Assessing Officer in the absence of revised return of income could not decide the same. Therefore, the order of the Assessing Officer could not be faulted with. In support of the aforesaid submission, reliance is placed upon the decision of the Apex Court in Goetze (India) Ltd. Vs. Commissioner of Income Tax, 284, ITR 323. 6. We find that the impugned order of the Tribunal has rendered a finding of fact to the effect that the plot o .....

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