Itxa/754/2013 Of The Commissioner Of Income Tax -Ii Pune v. Shri Rajnish Maniklal Bhandari

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (LOD) NO.2058 OF 2012 The Commissioner of Income Tax-II, Pune ..Appellant. V/s. Shri Rajnish Maniklal Bhandari ..Respondent. Mr. Vimal Gupta, Senior Advocate with Padma Divakar for the appellant.Mr. Mihir Naniwadekar for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 8TH MARCH, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2007-08, following questions of law are raised for our consideration:- (i)Whether on the facts and circumstances of the case and in law, the Tribunal erred in holding that the amount of Rs.54,59,083/- received on retirement by the assessee for extinguishment of his rights in the firm in favour of the continuing partners was not taxable being a capital receipt ?the Tribunal erred in holding that the amount of Rs.54,59,083/- received on retirement by the assessee for extinguishment of his rights in the firm in favour of the continuing partners was not taxable being a capital receipt ? (ii)Whether on the facts and circumstances of the case and in law, the Tribunal erred in holding that the amount received by the partner on retirement from firm by deed of retirement executed in writing to the continuing partners for a consideration is not chargeable to capital gains tax ?the Tribunal erred in holding that the amount received by the partner on retirement from firm by deed of retirement executed in writing to the continuing partners for a consideration is not chargeable to capital gains tax ? (iii)Whether on the facts and circumstances of the case and in law, the Tribunal erred in appreciating the fact that the additional the Tribunal erred in appreciating the fact that the additional consideration received by the assessee was on account of relinquishment of his pre-existing rights in the partnership firm and, therefore, the same was in the nature of capital gains liable to tax ? 2.We find that in the impugned order Tribunal relied upon the decision in the case of Mr. Riyaz A. Shaikh V/s. ITO in ITA No.352/PN/06 dated 29[th] October, 2010 wherein it has been held that the amounts received by a partner on his retirement are exempt from capital gains tax. Being aggrieved by the decision of the Tribunal, The Revenue carried the appeal to this Court being Income Tax Appeal No.1969 of 2011. On 26[th] February, 2013 this Court refused to entertain the appeal of the revenue. Since the impugned order follows the decision of the Tribunal in the matter of Riyaz A. Sheikh and this Court has refused to entertain the appeal of the revenue from the decision of the Tribunal in the matter of Riyaz A. Sheikh. The revenue has not indicated any distinguishing features in the present case from that in the matter of Riyaz A. Sheikh (supra). In the circumstances, we see no reason to entertain the present appeal for the reasons indicated in our order dated 26[th] February, 2013. 3.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)