TMI Blog2017 (2) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of assessee by the principle of consistency in view of the decision of Radha Soami Satsang [ 1991 (11) TMI 2 - SUPREME COURT] and Gopal Purohit [ 2010 (1) TMI 7 - BOMBAY HIGH COURT] . We find no infirmity in the order of CIT(A) and hence the same is confirmed. These four appeals of Revenues are dismissed. Reopening of assessment u/s 147 - return was processed under section 143(1) - HELD THAT:- Admittedly, the reopening was beyond four years and no assessment was framed under section 143(3) of the Act. The only processing was done under section 143(1) of the Act for these assessment years. Accordingly, we are of the view that no opinion was formed and assessee case does not fall under the proviso of section 147 of the Act. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sake of brevity, we take up the facts from the assessment year 2007-08 and will decide the issue. For this Revenue has raised following two grounds: - 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing the AC to assess premium of ₹ 54,70,000I- as Capital Gain instead of assessing it as the income from other sources when the ownership of the property does not change from the hands of the assessee. 2. On the facts and in the circumstances of the case and in law, the impugned order of the Ld. ClT(A) is contrary to law and consequently merits to be set aside and that of the Assessing Officer be restored. 3. Briefly stated facts are that the assessee company is the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to ₹ 54,70,000/- is chargeable to tax under the head Income from other sources and not as 'Capital gain' and accordingly, the Assessing Officer disallowed the deduction claimed by the assessee u/s. 54EC of the Act of ₹ 50.00,000/-. Aggrieved, against action of AO, preferred the appeal before CIT(A), who rely on the CIT(A) s order for the assessment year 2009-10 directed the AO to assess this premium on tenancy rights under the head capital gains by observing in Para 3.2 and 3.3 as under. Similar are the findings in other assessment years by the CIT(A). Aggrieved, Revenue is in appeal before Tribunal. 4. Before us, Revenue filed copy of Tribunal s order in the case of Vinod V. Chhapia v. ITO (2013) [56 SOT 465 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Capital gains offered for taxation Assessment status 2001-02 13,13,938 48,152/- 143(1) 2002-03 26,18,814/- 6,28,837/- 143(1) 2003-04 34,13,018/- 13,018/- 143(1) 2004-05 36,22,006/- 52,006/- 143(1) 2005-06 34,04,142/- NIL 143(1) 2006-07 56,79,500/- NIL 143(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sse and, therefore, any gains arising therefrom would be assessable under the head Income from capital gains eligible for deduction u/s S4EC of the Act. Under these circumstances we find that the findings of the Id. CIT(A) are well reasoned and in accordance with taw and facts and do not require any interference. Accordingly, the order of Id. CIT(A) is upheld. 7. In our view, of this the learned Counsel for the assessee argued that the concept of consistency should be followed by the Revenue as Revenue itself has assessed this premium of tenancy rights as capital gains for assessment year 2005-06 2006-07. He also relied on the decision of the Hon'ble Supreme Court for its proposition in the case of Radha Soami Satsang Vs. CIT (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown the premium received on the transfer of the tenancy as Long Term Capital Gains. Further it had also claimed exemption under section 54EC against such long term capital gains. The assessee is the owner of the Seth Mulji Jetha Cloth Market, which have been let out to different tenant. On transfer of the tenancy from outgoing tenant to the incoming tenant, the assessee receives an amount which is termed as premium on their transfer of tenancy rights cannot be taxed as capital gains in the hands of the assessee because there is no transfer of asset in the hands of the assessee. Even after the transfer of the tenancy right from the outgoing tenant to the incoming tenant the assessee continued to remain the owner of the shops. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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