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TMI Blog2013 (10) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... med in proprietorship concerns ignoring the fact that no business activity was carried out by the proprietorship concerns during the relevant previous year. 3. Directing the AO to treat long term capital gain amounting to Rs.19,00,196/- exempted u/s 10(38) of the I.T. Act instead of business income from trading business. That the appellant craves to add, amend, alter, delete or modify any or all the above grounds of appeal before or at the time of hearing." 2. Ground No. 1 of this appeal relates to the Annual Let-out Value (ALV) restricting at Rs. 16,000/- instead of Rs. 24,000/- estimated by the Assessing Officer. 3. The facts related to this issue in brief are that the Assessing Officer worked out ALV of the house property located at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee at the very outset submitted that this issue was decided in favour of the assessee by the learned CIT(A) by following the decision of this bench of the tribunal in assessee's own case in ITA No. 247/JU/2007 for the A.Y. 2003-04. Therefore, the ground raised by the department deserves to be dismissed. 7. Learned D.R. although supported the order of the Assessing Officer, but could not controvert the aforesaid contention of the learned counsel for the assessee. 8. After considering the submissions of both the parties, it is noticed that an identical issue having similar facts has already been adjudicated by this bench of the tribunal in assessee's own case in ITA No. 247/JU/2007 for the A.Y. 2003-04 vide order dated 30/01/2008, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at business is deemed to have been set up when first activity being the procurement of godown was done and all revenue expenses incurred thereafter was deductible though actual commencement of business took later on. Facts of our case lie on much more stronger foundation as the assessee had already commenced business. Moreover, sec. 70(1) clearly provides for the allowing of set off of loss from one source against the income of another source. We, therefore, approve the view taken by the ld. CIT(A) on this issue." 9. Since the facts for the year under consideration are similar to the facts involved in the assessment year 2003-04 and the learned CIT(A) had followed the aforesaid referred to order of this bench of the ITAT, we, therefore, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the said order. Therefore, to maintain consistency, the department ought not to have filed the appeal for the year under consideration. Copy of the said order dated 03/03/2009 was furnished, which is placed at page nos. 4 to 9 of the assessee's paper book. 15. We have considered the submissions of both the parties and carefully gone through the material available on record. In the present case, it is an admitted fact that on the identical issue, the claim of the assessee was allowed in the preceding year by the learned CIT(A) and no appeal was preferred by the department against the said order. Therefore, keeping in view the principles of consistency the department ought not to have filed the appeal for the year under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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