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TMI Blog2015 (10) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... late Authority. They are required to elaborate the reasons as to why they oppose or accept the proposal submitted by the assessee.A one liner submission-" I agree/I do not agree" is a bald statement and is of no judicial value. As stated earlier such an order is not subject to appeal or revision. Therefore, it becomes more important that the authority handling such application devote some time and pass an order that could show as to how and why it arrived at a particular conclusion. In our opinion the comment of the AO opposing the proposal of the assessee falls under that category. It is to remembered that the Central Board of Direct Taxes have advised the officers of the department to avoid unnecessary litigation. In our opinion, the proposal made by the assessee is justified and no harm would be caused to the AO if the issue is kept in abeyance till the final decision of the Hon'ble Court is delivered. As a result, we admit the declaration made by the assessee. Issue of nature of advance received by the assessee is to be kept in abeyance and has to be decided after receiving the order of the Hon'ble Bombay High Court for the earlier two AY.s. Appeal filed by the AO are kept in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th developers, neither result in capital gain nor is in the form of adventure in the nature of trade. ii) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in concluding that the sum of ₹ 85 lakhs received by the assessee is a capital receipt overlooking the crucial fact that the amount was received as a result of an agreement the assessee had entered into with Mrs. Bachoobai Waranzow creating an interest in the estate and therefore taxable as business income. iii) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in concluding that the sum of ₹ 85 lakhs received by the assessee represents the sale proceeds of the properties in para 1.2 of the order and at the same time, holding that the amounts received are capital receipts in para 1.3 of the order thereby contradicting himself. iv) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in relying on the decision of ITAT in the assessee's case for A.Y. 2004-05 and 2005-06 ignoring the fact that the decision of ITAT has not been accepted by the Department and appeal u/s.260A has been filed. 2. i) On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble High Court. The Ld. A.R. has further brought our attention to the order of the Tribunal passed in the own case of the assessee for A.Y. 2006-07 wherein also the assessee has filed a declaration under section 158A of the Act. The Tribunal in pursuance of the provisions of section 158A of the Act had invited the comments of the Assessing Officer (hereinafter referred to as the AO). After considering the comments of the AO, the Tribunal held that the proposal made by the assessee was justified and no harm would be caused to the AO if the issue is kept in abeyance till the final decision of the Hon'ble Bombay High Court is delivered. The Tribunal admitting the declaration made by the assessee has directed that the issue of nature of advance received by the assessee is to be kept in abeyance and has to be decided after receiving the orders of the Hon'ble Bombay High Court for earlier two assessment years. The relevant part of the order of the Tribunal for the sake of convenience is reproduced as under: 4.Before us, Authorised Representative(AR) stated that the assessee had filed declaration u/s.158 of the Act, that it would abide by the order of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to how and why it arrived at a particular conclusion. In other words in absence of such an order, containing discussion of thought process of that authority, is no order in the eyes of law. In our opinion the comment of the AO opposing the proposal of the assessee falls under that category. It is to remembered that the Central Board of Direct Taxes have advised the officers of the department to avoid unnecessary litigation. In our opinion, the proposal made by the assessee is justified and no harm would be caused to the AO if the issue is kept in abeyance till the final decision of the Hon'ble Court is delivered. As a result, we admit the declaration made by the assessee. Issue of nature of advance received by the assessee is to be kept in abeyance and has to be decided after receiving the order of the Hon'ble Bombay High Court for the earlier two AY.s. Grounds no. 1-4 of the appeal filed by the AO are kept in abeyance, as per the provisions of section 158 A of the Act. 5. Since the identical issue is involved in the present appeal and the assessee has filed a similar declaration under section 158A of the Act, hence in view of the findings of the Tribunal given on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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