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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI NABIN KUMAR PRADHAN
Instant appeal by the assessee is directed against the order dated 2nd January 2014, passed by the learned Commissioner (Appeals)–25, Mumbai, for the assessment year 2010–11.
The only issue in dispute in the present appeal is in relation to addition made of ` 95,00,000 on account of short term capital gain.
Brief facts relating to this issue are, the assessee a partnership firm filed its return of income for the impugned assessment year on 2 Radheshyam Dyeing & Bleaching Works 30th July 2010, declaring nil income. During the assessment proceedings, the Assessing Officer found that in the relevant previous year, assessee and its sister concern Jamnadas & Co., received compensation of ` 1.90 crore from the owner of the property Shri Jagdish H. Jani, out of which assessee’s share is ` 95 lakh. However, the assessee has not offered any capital gain on his share of compensation received. Accordingly, he proceeded to complete the assessment by treating the amount of ` 95 lakh received by the assessee as short term capital gain. Being aggrieved of such addition, assessee preferred appeal before the learned Commissioner (Appeals) who also confirmed the addition made by the Assessing Officer.
We have considered the submissions of the parties and perused the material available on record. At the outset, learned Authorised Representative submitted in case of assessee’s sister concern, Jamnadas & Co., which also received an amount of ` 95 lakh and in whose case also, the Assessing Officer has made similar addition, the Tribunal has restored the matter back to the file of the Assessing Officer to decide the issue of computation of capital gain afresh after taking into consideration the DVO’s report. Learned Departmental Representative has not controverted the aforesaid factual position. As is evident, the assessee along with Jamnadas & Co., were paid an amount of ` 1.90 crore towards compensation for vacating the 3 Radheshyam Dyeing & Bleaching Works property. On a perusal of order passed by the co–ordinate bench in ITA no.1542/Mum./2014 dated 31st March 2016, in case assessee’s sister concern Jamnadas & Co., we have noted that the Tribunal has restored back the matter to the file of the Assessing Officer with a direction to re–compute the capital gain by considering the DVO’s report. The observation of the Tribunal in this regard is as under:–
“4. We found that DVO’s report was delayed, therefore, cannot be considered by the A.O. In the interest of justice, we restore this issue back to the file of the A.O. with a direction to recomputed capital gain by considering the DVO’s report determining / estimating value of property as on 1–4–1981. The A.O. is also directed to allow indexation on the valuation so arrived at by DVO as on 1–4–1981 and to recomputed the capital gain. We direct accordingly.”
Facts being materially same, we direct the Assessing Officer to re–compute the capital gain in assessee’s case also in terms with the direction of the co–ordinate bench in Jamnadas & Co., referred to herein above. The order passed by the learned Commissioner (Appeals) is accordingly set aside.
In the result, appeal is allowed for statistical purposes. Order pronounced in the open Court on 12.08.2016