TMI Blog2022 (6) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gain tax in view of section 45(4) - HELD THAT:- DR could not produce before us any judgments in favour of the Revenue, as against the addition made on account of revaluation of the land in the partnership firm. Similarly, the ld.DR could not place before us any contradictory finding as relied by the ld.CIT(A). In the absence of any further materials or judgments, we do not find it necessity to interfere with the order passed by the ld.CIT(A). Further, the fact in the case of Om Namah Shivay Builders Developers [ 2010 (11) TMI 137 - ITAT, MUMBAI] relied upon by the ld.DR is that one of the partners died and his legal heirs continued in the firm and then retired from the said firm, and this fact is not applicable to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Code Modification, overlooking the facts of the case that the assessee has adopting the client Code Modification and shifted out profit of Rs.14,735/- and shifted in loss of Rs.12,08,710/- 3. Brief facts of the case are that the assessee is Karta of HUF engaged in trading in investment, finance and security and share income from partnership firm. The assessee filed its return of income on 29.9.2009 declaring NIL income. The same was processed under section 143(1) of the Income Tax Act, 1961 ( the Act for short) and reopened under section 147 of the Act on the ground that the assessee was one of the beneficiaries of Client Code Modification ( CCM for short) and during the financial year 2008-09 profit shifted out was of Rs.14,735/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any capital gain in the above transaction. 4. On the issue of CCM, the assessee replied that he has not a beneficiary of CCM. If any code modification was made by the broker at the instruction was not with the malafide intention, there should be genuine error of entering client code by the respective person. When the client code was modified on the same day, there could not be any mala fide intention. However, the above explanations have not been accepted by the AO and made addition of Rs.5,86,66,086/- as capital gain on revaluation of land held by the assessee in the partnership firm and also added Rs.12,23,445/- as profit in the share transaction by resorting CCM. 5. Aggrieved against the reassessment order, the assessee filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing High Court s judgment: i) Kunnamkulam Mill Board, 125 taxman 802 (Ker) ii) Smt. Hemlata S. Sheth, 104 taxmann.com 58 (Bom) iii) Dynamic Enterprises, 40 taxmann.com 318 (Kar) iv) Karnataka Agro Chemicals, 49 taxmann.com 324 (Kar) 5.1 Following the above judicial rulings, the ld.CIT(A)held that revalued amount of capital asset which was transferred to capital account of the partners in their respective shares of profit, was not liable to capital gain tax in view of section 45(4)of the Act, even when such share in capital amount was paid to the retiring partner as the same did not amount to transfer in terms of section 2(47) of the Act. Therefore, addition made by the AO was deleted. 5.2 As regards addition made on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the assessee appeared in spite of service of notice. The ld.DR appearing for the Revenue supported order of the AO, and pleaded that the addition is to be upheld. He sought support of the Tribunal s judgment in the case of ITO Vs. Om Namah Shivay Builders Developers, 43 SOT 397 (Mum-Trib). 8. We have given our thoughtful consideration to the facts of the case and perused the materials available on record. The ld.DR could not produce before us any judgments in favour of the Revenue, as against the addition made on account of revaluation of the land in the partnership firm. Similarly, the ld.DR could not place before us any contradictory finding as relied by the ld.CIT(A). In the absence of any further materials or judgments, we do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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