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TMI Blog2018 (3) TMI 1801X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment to legal heirs of deceased partners, the same was also considered by the ITAT in assessee s own case [ 2015 (11) TMI 997 - ITAT MUMBAI] .The tribunal has elaborately considered the issue in by referring extensively to partnership deed on various case laws and thereafter held the issue in favour of the assessee and against the Revenue. Since the above has not been reversed by the Hon ble High Court, we follow the same and uphold the order of the ld. Commissioner of Income Tax (Appeals). - I.T.A. No.3400/Mum/2016, I.T.A. No.2835/Mum/2016 - - - Dated:- 1-3-2018 - SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM For the Appellant : Shri Ram Tiwari For the Respondent : Shri Millin Dattani Shri Parth Desai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2011-12 on 30.09.2011 declaring total income of ₹ 24,02,02,163/- and revised return of income on 30.03.2013 declaring total income of ₹ 23,94,80,668/-, which was processed u/s. 143(1) of the Act. The assessment was completed u/s. 143(3) of the Act on 28.03.2014 determining total income at ₹ 27,77,98,380/- by disallowing payment made to retired/deceased partner of ₹ 3,76,97,788/- and deprecation on tenancy rights of ₹ 6,44,920/-. 5. Against the above order of the assessing officer, the appeal was preferred before the ld. Commissioner of Income Tax (Appeals). On the issue of payment made to legal heirs of the deceased partner, the ld. Commissioner of Income Tax (Appeals) referred to earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it cannot be disputed that the amount in question is not at all income of the firm, having been diverted by the overriding title of the charge stipulated by the relevant clauses of the partnership deed [discussed in detail while dealing with this issue in ITA No. 1014/M/2013 (infra)]. Therefore, the condition of rendering of services, as envisaged by the provisions of section 40(b) of the Act, does not come into play as the common law concept of diversion of income by overriding title exists regardless of the amendment brought in by the legislature in the provisions of section 40(b) of the Act. Moreover, in V. G. Bhuta (supra), the payment was optional, which is not so herein, having been circumscribed by the mandatory clauses of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard is made to the Tribunal order in the assessee s case for the assessment years 2006-07 2007-08, the Tribunal has held as follows: 3. We have heard the arguments of both the sides and also perused the relevant material on record. The Ld. counsel for the assessee has fairly and covered against the assessee and in favour of the Revenue by the decision of the Tribunal rendered in assessee s own case for assessment years 2003-04 2004-05 vide its order dated 29th Oct., 2009 passed in ITA Nos. 355 356/Mum/2008 wherein the orders of the learned CIT(Appeals) confirming the disallowance made by the A.O. on account of assessee s claim for depreciation on tenancy rights was upheld by the Tribunal. As the issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etired partners, the ld. Commissioner of Income Tax (Appeals) has followed the ITAT order in assessee s own case. No case has been made out that this has been reversed by the Hon ble High Court. As regards the issue of payment to legal heirs of deceased partners, the same was also considered by the ITAT in assessee s own case in ITA No. 1014/Mum/2013 for assessment year 2009-10 vide order dated 07.10.2015. The tribunal has elaborately considered the issue in para 26 to para 61 by referring extensively to partnership deed on various case laws and thereafter held the issue in favour of the assessee and against the Revenue. Since the above has not been reversed by the Hon ble High Court, we follow the same and uphold the order of the ld. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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