TMI Blog2018 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an individual, filed his return of income for the A.Y 2005-06 on 26.07.2005 admitting a total income of ₹ 70,60,379. The return was initially processed u/s 143(1) on 21.07.2006. Subsequently, the assessment was reopened u/s 147 of the Act, by issuance of a notice u/s 148 of the Act. In response to the said notice, the assessee filed a revised return withdrawing the long term capital gain offered by him. Vide letter dated 4.02.2010, the assessee explained that the asset in question is co-owned property which was divided amongst the co-owners with demarcation in the relevant A.Y and therefore, there is no transfer and there is no capital gain arising therefrom. It was also submitted that since the construction of the property in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loping, the building was given on rent and the rentals were offered as income from house property in the ratio of 40:60 in the respective hands and that Shri Lakshmi Narsing Associates though had existed with PAN No.AAOFSS5198K, it ceased to exist with effect from 29.04.2004 and there is no record of the firm filing any returns of income or being assessed to tax. The AO, thereafter, held that there is a transfer of property and the gain is taxable as LTCG. Aggrieved by the order of the AO, assessee preferred an appeal before the CIT (A) stating that there was no transfer of the property in the financial year 2004-05 relevant to the A.Y 2005-06 and hence there is no capital gain, either LTCG or STCG. The CIT (A), however, confirmed the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of CIT vs. Sun Engineering Works (P) Ltd reported in (1992) 198 ITR 297 (S.C). 7. Having regard to the rival contentions and the material on record, we find that the property at Sultan Bazar was constructed by the assessee and the Loya family in the year 1986- 87 and the rental income was being enjoyed by each of the parties in the ratio of 60:40. It is also not in dispute that the assessee has been offering the income from the property under the head income from house property. The firm M/s Shri Lakshmi Narsing Associates was dissolved on 29.4.2004 and the assessee has filed the copy of the said dissolution deed. Therefore, the said firm was not in existence after 29.4.2004 and did not derive any income whatsoever from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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