9911796707
TMI Blog2018 (12) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... see. Therefore, keeping in view the decision of the Tribunal in assessee’s own case for assessment year 2008–09 and 2009–10 as referred to above, we restore the issue to the file of the Assessing Officer for de novo adjudication after due opportunity of being heard to the assessee Nature of certain capital gains earned by the assessee during impugned AY and applicable tax rate thereupon - Sale of flat - STCG OR LTCG - Held that:- Factual matrix that depreciation under the Income Tax Act was never claimed by the assessee against the flat and the said flat was never used as a commercial asset remained unrebutted. The revenue could not bring on record any material to controvert the same whereas LD. AR, drawing our attention to the computat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee s own case for AYs. 2008-09 to 2010-11. Upon perusal, we concur with the same. 3.2 In view of the admitted position, the matter stand remitted back to the file of Ld. AO for re-adjudication on similar lines as directed by the Tribunal in earlier AYs. For ease of reference, the relevant portion of the order of Tribunal in ITA No.3907/Mum/2016 for AY 2010-11 dated 29/08/2018 could be extracted as follows: - 6. We have considered rival submissions and perused materials on record. It is evident from facts on record that the issue whether the rent, commission and service charges received from sub letting the premises is a recurring dispute between the parties from the past years. It is also a fact on record that in assessee s own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion after due opportunity of being heard to the assessee. It is made clear, the Assessing Officer must consider all the evidences including the orders of the City Civil Court, the Hon'ble Jurisdictional High Court and the Estate Officer on merit and decide the issue accordingly. Grounds are allowed for statistical purposes. Resultantly, the assessee s appeal stands allowed for statistical purposes. 4. So far as the ground number-1 of revenue s appeal is concerned, it is also an admitted position that this issue stood squarely covered in assessee s favor by the order of this Tribunal in assessee s own case vide common order ITA No.6212/Mum/2011 for AY 2008-09 ITA No.1187/Mum/2013 for AY 2009-10 dated 07/03/2018 wherein sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted as ₹ 10.96 Crores and the same were treated as short term in nature which attracted normal rate of income tax. 5.3 Before Ld. CIT(A), it was pointed out that the assessee never claimed depreciation against the same under the Income Tax Act although the depreciation as per The Companies Act was claimed in the books of accounts and therefore, the resultant gains were to be treated as Long Term Capital Gains only. It was also pointed out that no business activity was being carried out by the assessee in the said flat and it was exclusively a residential flat and not a commercial asset. The first appellate authority concurred with the stand of the assessee by observing that provisions of Section 50 were not applicable and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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