TMI Blog2022 (9) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... , Accountant Member For the Appellant : Sh. Niraj Setha, Advocate, Sh. Ashesh. R. Safri, CA and Ms. Ekta Chopra, CAs. For the Respondent : Sh. R.S. Yadav, Senior Departmental Representative ( Sr. DR for short. ORDER PER ANADEE NATH MISSHRA, AM: (A) This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-20, New Delhi [ Ld. CIT(A) , for short], dated 30/01/2018 for Assessment Year 2009-10. Grounds taken in this appeal are as under: The appellant objects to the order dated 30 January 2019 passed by the Commissioner of Income Tax (Appeals)-20, New Delhi ( learned CIT(A) ), under section 250(6) of the Income Tax Act, 1961 ( the Act ) for the AY 2009-10, on the following among other grounds: 1. Validity of re-assessment order passed under section 147 read with section 143(3) of the Act 1.1 The reassessment order dated 31 December 2016 passed under section 147 read with section 143(3) of the Act, is ultra vires and bad in law and ought to be quashed. 1.2 The learned CIT(A) erred in upholding validity of re-assessment proceedings initiated by the Assessing Officer. 1.3 The learned CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Partnership Deed. 2.2 The learned CIT(A) erred in not appreciating the facts in right perspective and also erred in following the Commissioner of Income Tax (Appeals) order dated 30 March 2017 for the AY 2011-12. 2.3 The learned CIT(A) ought to have appreciated that as per clause lO.m read with clause 10.m of the Partnership Deed, the said amount was not income of the appellant firm as it was diverted by overriding title. 2.4 The learned CIT(A) erred in confirming the Assessing Officer s observation that the payment to retired partners is application of income without considering the fact that there is a prior charge on the income by way of superior title and therefore it is not an income of the appellant. 2.5 Without prejudice to the above, the learned CIT(A) erred in confirming the Assessing Officer s observation that the payment to retired partners is not allowable as deduction under section 37(1) of the Act. 2.6 The learned CIT(A) erred in confirming the Assessing Officer s observation that the payment to retired partners has to be disallowed under section 40(a)(ia) of the Act as no tax is deducted. The learned CIT(A) ought to have appreciated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed. (C) In the course of appellate proceedings in Income Tax Appellate Tribunal, a paper book containing the following particulars were filed from the assessee s side. Sr. No. Particulars 1. Acknowledgement in form 1TR-V for the Return of Income Original return filed on 30 September 2009 Return filed in response to 148 notice on 29 April 2016 2. Delhi High court order dated 13 July 2018 in case of the appellant for the AY 2010-11 directing that the re-assessment proceedings be quashed 3. Submission filed before the Hon ble CIT(A) Submission filed on 23 January 2019 Submission dated 13 November 2018 filed before the Hon ble CIT(A) enclosing all the letter/ Submissions filed before assessing officer during reassessment/ assessment/ rectification proceedings along with confirmations from the retired partners. 4. Letters/ Submissions filed before Assessing Officer (re-opening matter )- Copy of appellant s submission dated 26 December 2016 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tte Haskins Sells, Ahmedabad ITA no. 1983 /AH D/2017 for AY 2013-14 and 1984/A HD/2017 for AY 2014-15 Other judicial precedents -Hon ble High Court of Bombay in the case of DCIT versus Wadia Ghandy Company, vide judgment dated 7 August 2019, -Hon ble Supreme in case of Dalmia Cement Ltd. v CIT 237 ITR 617(SC) -Calcutta High Court judgement in CIT v. G. Basu Co. (182 ITR 472) (Cal) -Bombay High Court judgement in CIT v. V. G. Bhuta (203 ITR 249) (Bom) -Madras High Court judgement in CIT v. V.N.V. Devara Julu Chetty Co. (18 ITR 357) (Mad) -Supreme Court judgement in CIT v. Excel Industries Ltd. (358 ITR 295) (SC) -Bombay High Court judgement in CIT v. Mulla Mulla Craigie Blunt Caroe (190 ITR 198) (Bom) (C.1) At the time of hearing before us, representatives of both sides, the Ld. Counsel for assessee and Ld. Sr. DR for Revenue were in agreement; that on merits, the issue regarding the assessee s claim pertaining to aforesaid amount of Rs.1,37,75,514/- was squarely covered in favour of the assessee against Revenue by the order of Co-ordinate Bench of Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive, on identical facts, respectfully following the above cited judicial precedents, we allow ground No.3 of the assessee s appeal in Assessment Year 2011-12 and direct the Assessing Officer to delete the disallowance. However, the Ld. Sr. DR relied upon the order of the Assessing Officer. (D) We have heard the representatives of both sides on merits of the aforesaid addition of Rs.1,37,75,514/-. We have perused the materials on record. There is no material dispute on facts regarding the merits of the aforesaid addition of Rs.1,37,75,514/-. Representatives of both sides were in agreement at the time of hearing before us that the issue in the present appeal before us for Asst. Year 2009-10 is identical to the issue in Asst. Year 2011-12. Representatives of both sides were also in agreement at the time of hearing before us that the facts and circumstances for Asst. Year 2009-10, to which the present appeal before us pertains, are similar to the facts and circumstances of Asst. Year 2011-12 to which aforesaid order dated 15/01/2021 of Co-ordinate Bench of ITAT, Delhi pertains. Representatives of both sides were also in agreement at the time of hearing before us that as far a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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