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TMI Blog2022 (6) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in allowing relief with regard to the addition of Short term capital gain of Rs.5,98,73,450/- made by the AO, overlooking the facts of the case that the AO has made addition of revaluation of the land in the books of the assessee treating the same as short term capital gain and the Hon'ble ITAT has not considering the decision in the case of Om Namah Shivay Builders & Developers (2011) 43 SOT 397 is applicable in assessee's case? 2. Whether on the facts and in the circumstances of the case, the decision of Ld. CIT(A) is justified in allowing relief with regard to the addition made of Rs.12,23,445/- on account of share transaction by resorting Clint Code Modification, overlooking the facts of the case that the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was requested to show cause why the same be treated as capital gain in the hands of the assessee. The assessee replied that there was no transfer of asset by the partnership firm to partners at any stage and the land rights of the partnership was always with the partnership firm. Thus, there is no transfer of asset and there cannot be a capital gain without transfer. Merely on the basis of crediting of revaluation amount to partner's capital account was not a capital gain in the hands of the assessee. Thus, there was no transfer of asset of the partnership firm to any partners within the meaning of section 2(47) of the Act, and therefore, there was no question of any capital gain in the above transaction. 4. On the issue of CCM, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respective share of profit was not liable to capital gain tax in view of section 45(4) of the Act, even if such share in capital account was paid to the retiring partners. ITAT, Mumbai Bench in the case of D.S. Corporation in ITA No.3526 & 3527/Mum/2012 dated 10.1.2019 has been clarified that revaluation of asset by partnership firm which resulted into enhancement of value of asset and this enhanced amount credited in the capital account of the partners, does not give rise to capital gain under section 45(4) of the Act, even when a retiring partner takes amount in his capital account, including enhanced value of asset. The ld.CIT(A) further relied following High Court's judgment: i) Kunnamkulam Mill Board, 125 taxman 802 (Ker) ii) Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, the AO could not make any addition simply on presumptive basis and only there was a CCM. In this connection, the assessee relied upon decisions of ITAT, Ahmedabad Bench in the case of Kunvarji Finance P.Ld., IT(SS)A.No.615/Ahd/2010 dated 19.3.2015, & Amar Mukesh Shah, 81 taxmann.com 450 and ITAT, Mumbai Bench's decision in the case of Ashok Goyal HUF, 165 TTJ 306, Ashok Goyal HUF, 165 TTJ 306. Following the above decisions, the ld.CIT(A) deleted addition of Rs.12,23,445/- made by the AO. 6. Aggrieved against the appellate order, the Revenue is before us raising the above grounds of appeal. 7. During the course of hearing, none on behalf of the assessee appeared in spite of service of notice. The ld.DR appearing for the Revenue sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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