TMI Blog2016 (3) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... ee against order dt. 27/09/2013 and order dt. 24/09/2013 passed by Ld. CIT (Appeals)-32 for the A.Y. 1995-96 and 2008-09 respectively. 2. Since both these appeals pertain to the same assessee, the same were heard together and are being disposed of by this common order for the sake of convenience. 3. The appellant/assessee has also moved an application along with an affidavit for condonation of delay of 23 days in filing of the appeal pertaining to the A.Y. 1995-96 and 34 days in filing of the appeal pertaining to the A.Y. 2008-09. ITA 66/M/14 for A.Y. 1995-96 3.1 The appellant has challenged the impugned order on the following effective ground:- The Learned CIT(A) erred in confirming order of Assessing Officer considering consideration received of ₹ 23,69,000 being the share of sale of common Plot of 14 society as Business Income and not treating the same as being sale of Fixed Asset and the same is to be considered for Capital Gain and accordingly the gain there of is to be taxed as Long term Capital Gain . 3.2. Brief facts of the case that the assessee, being co-operative housing society, filed its return of income for A.Y. 1995-96 on 27/10/1996 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before the ITAT is 90 days, the Ld. counsel for the assessee submitted that the delay was cause inadvertently, therefore, the application may be allowed in the interest of justice. The Ld. counsel placed reliance on the ratio laid down by the Hon ble Supreme Court in Collector Land Acquisition V. Mst. Katiji others (1987) 167 ITR 471(SC). Having heard the rival submissions, we allowed the application of the assessee and condoned the delay in the interest of justice and allowed the Ld. Counsel to argue the case on merits. 6. Before us, the Ld. Counsel for the assessee submitted that the Ld. CIT(A) has wrongly confirmed the findings of the Assessing Officer passed without complying with the directions of the ITAT. The ITAT had sent the matter back to the AO with the specific direction to decide the issue afresh keeping in view the final decision taken in other 11 other co-operative societies, following the decisions passed by the Tribunal in Vithalnagar cooperative Housing Society Ltd. v. DCIT and Vallabh Nagar cooperative Housing Society Ltd.(supra) 7. On the other hand the Ld. DR relying upon the order passed by the Assessing Officer and CIT(A) submitted that the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial on record, it is observed that this issue was also restored by the Tribunal vide its order dt. 17th Nov, 2005(supra) passed in first round to the file of the Assessing Officer for deciding the same afresh as per the same direction as given on the issue involved in ground No. 1. As already hold by us while deciding the issue raised in ground No. 1, the direction of the Tribunal has not been followed by the Assessing Officer while deciding the issue restored to his file. Accordingly, following our decision rendered while disposing of ground no.1, we restore the issue involved in ground No.2 to the fle of the Assessing Officer for deciding the same afresh as per the direction given by the Tribunal in the first round vide its order dt. 17th Nov, 2005 (supra). 11. Respectfully following the order passed by the co-ordinate bench of Mumbai Tribunal in ITA 7168/M/08, ITA 6369/M/09, ITA 5863- 64/M/08(supra), we restore the issue to the file of the Assessing Officer for deciding the same afresh as per the direction given by the tribunal vide its order dt. 17/11/2005. 12. In the result, appeal of the assessee for the A.Y. 1995-96 is allowed for statistical purpose. ITA 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and condoned the delay in the interest of justice and permitted the Ld. Counsel to argue the case on merits. 4. The Ld. Counsel for the assessee submitted that the CIT has wrongly confirmed the additions made by the Assessing Officer as the issue involved in this case has already been decided in favour of the assessee in assessee s own cases pertaining to the assessment years 2003-04.2004-05 and 2005-06 by the ITAT Mumbai and the Hon ble High Court of Bombay has dismissed the appeals filed by the revenue against the findings of the Tribunal. On the other hand the Ld. DR relying on the findings of the authorities below submitted that there is no merit in the case of the assessee. 5. We have heard the rival submissions and gone through the material placed before us. The H Bench of the ITAT Mumbai has already decided the identical issue in favour of the assessee in appeals ITA No 6346/M/2009, 6347/M/2009 and 6348/M/2009 filed by the revenue against the CIT(A) order for the assessment years 2003-04, 2004-05 and 2005-06 respectively by following the decision of the coordinate Bench passed in ITA No 7452/M/03 filed by the revenue against the CIT(A) order in assessee s own case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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