IN THE INCOME TAX APPELLATE TRIBUNAL
"D" Bench, Mumbai
Before Shri D. Manmohan, Vice President
and Shri Rajendra Singh, Accountant Member
ITA No.3221/Mum/2011
(Assessment Year: 2007-08)
Shri Rakesh Dungarmal Tainwala DCIT, Range 8(3)
71, Kalpataru, Nutan Laxmi Vs. Aayakar Bhavan, M.K. Road
Society, JVPD Scheme Mumbai 400020
Vile Parle (W), Mumbai 400049
PAN - AAAPT 9300 J
Appellant Respondent
Appellant by: Shri J.P. Bairagra
Respondent by: Shri C.G.K. Naik
Date of Hearing: 19.06.2012
Date of Pronouncement: 19.06.2012
ORDER
Per D. Manmohan, V.P.
This appeal, filed by the assessee, is directed against the order dated
24.03.2011 passed by the CIT(A) 18, Mumbai and it pertains to
assessment year 2007-08.
2. The following grounds were urged by the assessee: -
"1. The learned Commissioner of Income Tax (Appeals) erred in
confirming the action of the Assessing Officer in holding that
consideration of Rs.2 Crores received as Non-Compete fees is
revenue receipt and accordingly chargeable under section 28(va)
of Income Tax Act, 1961 as against returned by the appellant as
long term capital gain under Sec. 55(2) of the Income Tax Act.
2. The learned Commissioner of Income Tax (Appeals) further erred
in confirming the action of the Assessing Officer in not allowing
deduction of Rs.2 crores under section 54F of the Income Tax Act
against the long term capital gain taxable under section 55(2) of
the Income Tax Act."
2 ITA No.3221/Mum/2011
Shri Rakesh Dungarmal Tainwala
3. Assessee is a promoter and shareholder of Tainwala Polycontainers
Ltd. (TPL). Assessee received a sum of `2 crores by way of non-compete fees
from M/s. Time Packaging Ltd. In the return filed for the assessment year
under consideration assessee claimed exemption under section 54F of the
Act by purchasing a residential property. It was contended that the non-
compete fees received is a capital receipt assessable to tax under the head
`Capital Gains'. The AO as well as the CIT(A) were of the opinion that
provisions of section 28(va) are applicable to the instant case and the
impugned sum is assessable to tax as revenue receipt and accordingly the
AO completed the assessment, which was affirmed by the CIT(A).
4. At the time of hearing the learned counsel for the assessee fairly
submitted that identical issue has come up in the case of Ramesh D.
Tainwala in ITA No. 3853/Mum/2010 wherein the ITAT "D" Bench Mumbai
concluded that provisions of section 28(va)(a) would apply and consequently
the amount received by that assessee would be chargeable to tax as business
income and not under the head capital gains. The learned counsel for the
assessee admitted that despite the case of the assessee that non-compete fees
is assessable to tax under the head `Long Term Capital Gains', in the light of
the aforesaid decision the issue stands covered against the assessee.
5. On the other hand, the learned D.R. relied upon the orders passed by
the tax authorities as well as the decision of the ITAT (supra)
6. In the light of the order passed by the ITAT "D" Bench Mumbai in the
case Ramesh D. Tainwala (supra) we hold that the order passed by the
learned CIT(A) is in accordance with law and accordingly the appeal filed by
the assessee is dismissed.
Order pronounced in the open court on 19th June 2012.
Sd/- Sd/-
(Rajendra Singh) (D. Manmohan)
Accountant Member Vice President
Mumbai, Dated: 19th June 2012
3 ITA No.3221/Mum/2011
Shri Rakesh Dungarmal Tainwala
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A) 18, Mumbai
4. The CIT 8, Mumbai City
5. The DR, "D" Bench, ITAT, Mumbai
By Order
//True Copy//
Assistant Registrar
ITAT, Mumbai Benches, Mumbai
n.p.
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