DCIT 8(3), MUMBAI vs. VRUSHAL TRAIDNG P.LTD, MUMBAI

None appeared on behalf of the assessee even though the notice of hearing was sent by registered post to the assessee. Hence, we proceed to dispose of the appeal ex-parte, without the presence of the assessee.

We heard the ld. DR and perused the record. We notice that the ld. CIT(A) has decided the issue in favour of the assessee by following the decision rendered by the Tribunal in the case of M/s Hami Aspi Balsara V/s ACIT reported in 126 ITD 100. At the time of hearing, the ld.DR submitted that the Hyderabad Special Bench of the Tribunal has considered an identical issue in the case of ACIT V/s Dr. B V Raju (2012) 135 ITD 1 (SB), wherein it has been held that non-compete fee would be chargeable to tax as income from business in the hands of the persons associated with the transferor also. He further submitted that the decision rendered by the Special Bench was followed by the Mumbai Bench of the Tribunal in the case of Sterling Re-rolling Mills V/s ACIT (2012) 23 Taxmann.com 394(Mum). Accordingly he submitted that the decision rendered by the larger bench should be followed.

We find merit in the submissions made by Ld D.R. In view of the above said decision of Special Bench, we set aside the order of ld. CIT(A) on this issue and restore the order of AO.

In the result, the appeal of the revenue is allowed

DR, ITAT, Mumbai concerned गधर्ा पधईर / Guard file. 6. आदेशधनुसधय/ BY ORDER,सहधमक ऩंजीकधय (Asstt.