TMI Blog2023 (2) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... The above captioned two separate appeals by the Revenue are preferred against two separate orders of the ld. CIT(A) -26, New Delhi in respect of two different assessees of the same group dated 27.11.2018 pertaining to Assessment Year 2008-09. 2. The representatives of both the sides were heard at length, the case records carefully perused. Relevant documentary evidences brought on record carefully perused in light of Rule 18(6) of ITAT Rules. 3. Since common issues are involved in both these appeals, they were heard together and are disposed of by a common order for the sake of convenience and brevity. 4. The common grievances in both these appeals read as under: 1. That the Ld. CIT(A) has erred on facts and law in taking the total sales consideration as only Rs. 106 Cr. against the total consideration received by assessee and his associate companies of Rs. 178.42 Cr. and consequently deleting the Short Term Capital Gain on consequent amount. 2. That the Ld. C1T(A) has erred on facts and law in directing the AO to exclude figures of Rs. 72.42 Cr. for computing the Capital Gains, without appreciating the fact that the Rs. 72.42 cr. was received by other associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the ld. CIT(A), after considering the facts and submissions, sustained the addition to the extent of Rs. 43,49,47,500/-. Relevant findings of the ld. CIT(A) read as under: xiv) It will be seen from the aforesaid retirement deed that sum infused by M/s Vatika Ltd was only Rs. 112 crores and not Rs. 178.42 crores. Therefore, sums paid by Vatika Ltd. to any other entity of MDLR group cannot be a ground to bring to tax as capital gain in the hands of assessee on transfer of shares in Trishul Industries. xv) In view of the discussion supra, the AO is directed to exclude figure of Rs. 72.42 crores for computing the capital gain in the hands of the appellant on transfer of shares in the partnership firm M/s Trishul Industries. xvi) Further, the Assessing Officer has himself adopted Rs. 106.01 crores out of Rs. 112 crore which according to the appellant comprises of the following sums: Sr. No. Particulars Amount 1. MDLR Estates (P) Ltd. 47,12,00,000 2. MDLR Builders (P) Ltd. 45,50,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 056010100507561 6. 24.10.2007 117/OSC104959; Chq no. 644157 5,00,000 131010100225922 7. 20.12.2007 By CLG/ZNHVOUT/Set 20 40,00,000 131010100225922 8,56,98,730 xx. In absence of any valid explanation and corroborative material this addition of Rs. 8,56,98,730/- is confirmed. xxi. In view of the foregoing, addition of Rs. 10,66,98,730/- is confirmed and balance addition of Rs. 13,51,29,836/- is deleted. This ground 30 is accordingly partly allowed in the above terms. xviii) The AO therefore ought to have adopted the sums, based on the retirement deed, at the figure of Rs. 112 crores with 47.50% share out which works out to Rs. 53.20 crores. xix) The appellant here also contended that addition on account of capital gain stand offered as part of return of income for the instant year, though, as business income. It has been stated mere declaring in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49,47,500 ii) Undisclosed income admitted 30,41,00,000 Nil iii) Disallowance of shares claimed of expenses Nil 13,04,94,600 Total 110,12,38,532 56,54,42,100 13. The assessee challenged the order of the ld. CIT(A) before the Tribunal strongly contending that there is no liability of capital gain. 14. Before the Tribunal, it was vehemently contended that the alleged capital gain arose as sum received by the assessee as partner on retirement from partnership firm and, therefore, the same is exempt u/s 10(2a) of the Act. 15. This Tribunal, in ITA No. 8214 8215/DEL/2018 vide order dated 11.06.2019, held as under : 24. We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case brought to tax an amount of Rs.79, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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