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TMI Blog2019 (12) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... A) dated 10 June 2019. The application for the calling of the order shall be made within the prescribed time. We hold that there is no requirement to adjudicate the issue raised by the assessee on merit. Hence the ground of appeal of the assessee is dismissed. - ITA No. 1223/AHD/2018 (Asstt. Year: 2013-2014) - - - Dated:- 16-10-2019 - SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER Assessee by: Shri Sanjay R. Shah, A.R Revenue by: Shri O.P. Sharma, CIT.DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Principal Commissioner of Income Tax-4, Ahmedabad [Ld. CIT in short], dated 16/03/2018 arising in the matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (herein- after referred to as the Act ) dated 31/03/2016 relevant to Assessment Year (AY) 2013-14. The assessee has raised the following grounds of appeal: The appellant objects to the order dated 16 March 2018 ('impugned order') passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Retired Partners is capital in nature. 4.2 The learned CIT erred in law as well as on facts in observing that payment made to Retired Partners cannot be considered for the purpose of Business or Profession. 4.3 The learned CIT erred in disregarding the provisions of the Partnership Deed and stating that the Retired Partners are entitled to receive only capital balance as on the date of retirement. 4.4 The learned CIT failed to appreciate the binding obligation created on the firm by the Partnership Deed and also failed to appreciate the provisions of the law in this regard in the right perspective. Your appellant prays for leave to add, alter and/or amend all or any of the grounds before the final hearing of appeal. 2. The assessee in this appeal has challenged the order framed under section 263 of the Act by the Ld. CIT by holding that the assessment order passed under section 143(3) of the Act is erroneous insofar prejudicial to the interest of Revenue. 3. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the activity of prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned CIT (A) against the finding of the AO in the order framed under section 143(3) read with section 263 of the Act. The ld. CIT-A was pleased to delete the addition made by the AO by observing as under: 6.3 DECISION: I have carefully considered the contention of the AO, facts of the case and submission of the appellant. The AO has treated the entire payment made to retired partners of ₹ 1,05,30,0927- as disallowable and added to the returned income of the appellant firm on the ground that the entitlement of payment cannot be proved by making a provision in partnership deed. In his opinion, it should have legal entitlement as per the provision of the IT. Act, 1961. The AO further contended that Retiring partners are entitled to receive capital balance on the date of retirement. Therefore, whatever payments are required to be made to retired partners are of capital nature and cannot be reduced from the income of the partnership firm. The AO further suggested that the appellant firm should have drawn Profit and Loss account up to the date of retirement and for the subsequent year and whatever amount is credited to capital account of the retiring partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the issue is squarely covered by the judgement of Hon'ble Bombay High Court, of Chennai and Mumbai Tribunals and order of my predecessor for AY 2014-15. In view of above facts and the ratio laid down by the case laws(Supra) there is a case for the appellant. It is mentioned that a similar issue was decided accepting the claim of the appellant vide order dated 26 October 2018 for AY 2012-13. The AO is directed to delete the impugned addition of ₹ 1,05,30,092/-. This ground of appeal is allowed. 5.1 The learned AR further claimed that the Revenue has not filed any appeal before the Tribunal against the finding of the learned CIT (A). Accordingly the learned AR submitted that there is no grievance to the assessee against the finding of the learned CIT under section 263 of the Act. Thus the learned AR contended that the issue raised in the appeal against the order of the learned CIT dated 16 March 2018 becomes infructuous and accordingly no separate adjudication is required. 5.2 However, the learned AR for the assessee further submitted that the assessee should be granted liberty to recall the order of this tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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