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TMI Blog2021 (9) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... M) This is an appeal by the revenue against the order dated 03-02-2017 of learned Commissioner of Income Tax (Appeals)-34, Mumbai for the assessment years 2010-11. 2. At the outset, we must observe, registry has pointed out a delay of 254 days in filing the appeal. Vide letter dated 31-01-2018, revenue has explained the cause of delay, as under:- To, The Sr. Registrar, Income Tax Appellate Tribunal, Mumbai. Sir, Sub: Request for condonation of delay in filing Appeal U/s before ITAT in the case of Mrs. Ramona Pinto for A.Y. 2010-11. ***** Kindly refer to the above. 2. In the instant case, the order of the CIT(A) vide order No. CIT(A)-34/DCIT 23{3)/IT-91/15-16 dated 03.02.2017 was received in this office on 23rd March 2017. In the order, the Assessee's appeal was dismissed. Thus the appeal, if any, was to be filed before the ITAT on or before 23rd May 2017, the time barring date. 3. It is humbly submitted that, in the instant case, due to oversight and also the fact that the CIT(A) has dismissed the appeal of the assessee, the Appeal could not be filed in time. However, on verification of records, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and examining the facts on record in the light of decisions relied upon, learned Commissioner (Appeals), though, agreed that the amount awarded by the Arbitrator is taxable in the impugned assessment year; however, he was of the view that it cannot be treated as income from business under section 28(iv) of the Act. On the contrary, he held that the amount of ₹ 28 crores is taxable as Income from other sources under section 56(1) of the Act. Against the decision of learned Commissioner (Appeals), both the assessee and revenue filed appeals before the Tribunal. 6. At the outset, learned counsel for the assessee submitted, while deciding assessee s appeal on identical issue, the Tribunal has upheld the decision of learned Commissioner (Appeals) in holding that the amount received by virtue of arbitration award is taxable under the head Income from other sources under section 56(1) of the Act. Thus, he submitted, the issue is squarely covered by the decision of the Tribunal. 7. The learned departmental representative, though, agreed that the issue is covered by the decision of the Tribunal; however, she relied upon the observations of the assessing officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D'Souza. (iv) The arbitration award was given not only for withdrawal of Suit against partners and partnership firm but it was also granted for withdrawing all the Suits against entities owned and controlled by the partners. (v) Condition No.9 of Consent Terms stated that the appellant and her husband Etienne Pinto had no interest in properties listed in clause 9 and they would ensure execution of necessary documents for transfer of properties which presently stood in their names in favour of existing partners. This condition had no reference with the retirement of the appellant from the partnership firm. (vi) As per condition no.12, the appellant's husband was also required to sign the Consent Terms in acceptance of his obligations as set out in the Consent Terms. Though her husband had no relation to M/s P.N.Writer Co., it was agreed that the husband shall also sign Consent Terms and shall also transfer back assets mentioned in condition no.9 which was in the name of the appellant as well as in the name of her husband. 22. When the above facts are viewed in the light of the fact that there are no positive balance of the capital account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, no such determination regarding the share of the assessee in the partnership firm has been done. The assessee despite request made in this regard by the Assessing Officer has not been able to provide the working of the share in the net asset of the firm and has generally stated that it was based on the market value of the asset of the firm. Before the ld. Commissioner of Income Tax (Appeals) also no detail working has been given except for submitting the valuation report of the assets by way of additional evidence. 24. Thus from the above, it is clear that neither the Arbitration award nor the concerned terms made any mention or a declaration or a decision for a finding that the assessee retired from the firm in the year 1997. Neither does the Arbitration Award or Consent Terms anywhere specify that the sum of ₹ 28 crores represents the payment to the assessee for her retirement from P.N.Writer Co. As a matter of fact, the basis of the Arbitration Award was never given. As rightly observed by the ld. Commissioner of Income Tax (Appeals) that the retirement of a partner from the firm has to be an evident fact and is not required to be indirectly infe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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