: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO.865 OF 2007 TAX APPEAL NO.865 OF 2007 TAX APPEAL NO.865 OF 2007 The Commissioner of Income Tax-19, . Mumbai ...Appellant V/s. Jaya Vishnu Mehta ...Respondent Mr.R.G. Bhat, Advocate, for the Appellant. CORAM CORAM CORAM : DR. S. RADHAKRISHNAN & : DR. S. RADHAKRISHNAN & : DR. S. RADHAKRISHNAN & A.V. A.V. A.V. NIRGUDE, JJ. NIRGUDE, JJ. NIRGUDE, JJ. DATE DATE DATE : 10TH JULY, 2008. : 10TH JULY, 2008. : 10TH JULY, 2008. P.C. P.C. P.C. : : : . Heard the learned Counsel for the Appellant. None appears for the Respondent, though served. 2. The learned Counsel for the Appellant is seeking to raise the following three substantial questions of law :- (a). Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal is correct in deleting the addition of Rs.18,00,000/- made by the A.O. of Capital Gains in view of Hon’ble Bombay High Court, decision in the case of M.A. Mody Vs. CIT (162 ITR 420)? : 2 : (b). Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal is correct in applying the ratio of the decision of Hon’ble Supreme Court of India, in the case of Tribhuvandas G. Patel (236 ITR 515), when clause (ii) of Section 47 has been omitted with effect from 01.04.1988 and hence not applicable to the present case; (c). Whether on the facts and in the circumstances of the case and in law, the Hon’ble Tribunal is correct in holding that the year of taxability of capital gain was A.Y. 1995-96 and not A.Y. 1997-98, without appreciating the fact that as per clause 3 of Deed of Retirement, the payment can be made latest by July, 1996 and the assessee had received the payment during the period relevant to A.Y. 1997-98, which was also shown by the Assessee in A.Y. 1997-98 and taxed by the A.O. accordingly? 3. However, after perusal of the Judgment of the Tribunal dated 7th February, 2006, it is very clear : 3 : that the Judgment of our Court has been over ruled by the Judgment of the Supreme Court in the case of Tribhuvandas G. Patel V/s. CIT [236 ITR 515] wherein the Supreme Court has categorically stated in one of the paragraphs, which is quoted as under :- "Even where a partner retires and some amount is paid to him towards his share in the assets, it should be treated as falling under clause (ii) of sec.47. Hence the sum of Rs.4,77,941 was not assessable as capital gains." 4. Under the aforesaid facts and circumstances, we do not find any substantial question of law involved in the above Appeal. The Appeal is devoid of merits and hence the same stands dismissed. [A.V. [A.V. [A.V. NIRGUDE, J.] [DR. S. RADHAKRISHNAN, J.] NIRGUDE, J.] [DR. S. RADHAKRISHNAN, J.] NIRGUDE, J.] [DR. S. RADHAKRISHNAN, J.]