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TMI Blog2018 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT (A) erred in not deciding the issue on merits and dismissing assessee appeal. 3. The learned CIT (A) erred in both law and facts by not adjudicating the grounds raised by assessee as follows: a. The assessing officer erred in taxing hypothetical income whereas no sale consideration was received by assessee from the other co-owner nor property transferred. b. The AO erred in treating the demarcation between the co-owners as transfer when there is neither relinquishment nor extinguishment of right over property. c. The AO erred in not considering the fact that share of ownership of the assessee in the property remains same since 1985. 4. For these & other ground which may be raised during or before the appeal is heard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed an appeal before the CIT (A), who dismissed the same vide orders dated 9.5.2011. The assessee further appealed to the ITAT which remitted the matter back to the file of the AO with a direction to verify whether any return has been filed by the firm i.e Shri Lakshmi Narsing Associates and also to see whether the property was fully leased out and the assessee was getting 40% of the income from the property and whether that has been utilized by the partnership firm for its business purposes and also as to the actual status of the entity M/s. Shri Lakshmi Narsing Associates. 4. The AO vide orders dated 31.3.2014, while giving effect to the ITAT order, observed that the assessee, along with Shri Badrivishal Pitti and Shri Radheyshyam Loya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he firm. It was submitted that in the year 2004-05, the partnership firm got dissolved and there was no transfer of any capital asset. It was submitted that the demarcation of the building by metes and bounds took place in the relevant A.Y and the assessee under a mistaken understanding had offered the long term capital gain to tax in his return of income. Therefore, he pleaded that there is no capital gain to be brought to tax and the assessee has rightly withdrawn the LTCG in the revised return of income. 6. The learned DR however, supported the orders of the authorities below and submitted that the assessee could not have withdrawn the LTCG offered in the original return of income in the return filed by the assessee in reply to the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot claim a benefit in a return filed in response to the notice u/s 148 is not sustainable, because the assessee is not making a claim in the return filed in response to the notice u/s 148 of the Act but is withdrawing a mistaken claim already made in the original return of income. Further, the AO and the CIT (A) have not disallowed the assessee's withdrawal of LTCG on this ground. Therefore, such an objection cannot be raised before this Tribunal in the second appeal and in the second round of litigation. In view of the same, we are of the opinion that the assessee's withdrawal of the LTCG in the return filed in response to the notice u/s 148 is justified as there is no transfer of property and therefore, there is no long term capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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