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TMI Blog2012 (9) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact the firm and not the individual partners - Revenue contended that assessee was not the tenant and, therefore, there arises no question of relinquishment of tenancy right to other partner Held that:- Though in the lease deed, the lessee is Shri George Nainon and Co., it is in fact the partners who are occupying the premises individually. It is also not in dispute that even after 1982, the property was not occupied jointly and severally but was occupied individually and separately. Thus, the advantage of common occupation and enjoyment is absent. It is also worth noting that it was not necessary to mention that the tenancy right over the property could not be separated without mutual consent had it been the right of the firm. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital gains. For the relevant assessment year, the assessee filed his return of income admitting income of Rs.1,49,248/-. During the assessment proceedings u/s 143(3) of the Income-tax Act, the AO observed that as per the information available from the Annual Information Return filed with the Department, the assessee had made an investment of Rs.8 lakhs in NABARD capital gains bonds. The assessee was requested to submit the details of the source for this investment, as no mention of the same was made in the return of income filed for the assessment year 2006-07. In response to the same, the assessee vide letter dated 8.1.2008 explained that the assessee was a partner in a firm called George Nainan Co., and that the assessee has surrendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of mezzanine floor of shop No.15 of Piplewala Building, Shaheed Bhagat Singh Road, Colaba, Bombay from1964 to October 1982. He submitted that the assessee carried on the business of an advertising agent at this premises and that ground floor of shop No.15 was occupied by one Shri Sonny Nainan who was carrying on ceramics business. It was submitted the entrance to both the floors was a common door and that both the assessee and Shri Sonny Nainan had taken the premises on rent from Mr. Louis Tauro. It was submitted that there was a dispute between the landlords and Shri Louis and as per the settlement of dispute between them, the tenant had unconditionally surrendered his tenancy right to the landlords with an option to the landlords to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption u/s 54C of the Act. The learned counsel for the assessee submitted that the partnership firm existed only on paper for the purpose of securing tenancy right over the property in Mumbai and not with any intention of carrying on any business. He drew our attention to various clauses of partnership deed to demonstrate that though it is mentioned that the tenant is the partnership firm, the individual right of each of the partner over the respective floors and to carry on respective business was recognized in the partnership deed. Thus according to him, the assessee and his partner exercised their individual tenancy right over the property which is surrendered by the assessee to the other partner and, therefore, amount received for relinq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt received by the assessee was in fact income from other sources as rightly been assessed by the AO . As regards the year of taxability, the learned DR submitted that the assessee has itself offered income on receipt basis in the assessment year 2006-07 and, therefore, the same has to be considered in the assessment year 2006-07 only and not in the assessment year 2002-03 as submitted by the assessee. She also submitted that the assessee has not raised any ground of appeal relating to the year of taxability either before the CIT(A) or before the Tribunal and therefore, it cannot be adjudicated at this stage. 7. Having heard both the parties and having considered their rival contentions, we find that the question before us for considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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