IN INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM I.T.A. No.562/Mum/2015 ( Assessment Year: 2011-12) Shilpa Hemant Pradhan Income tax Officer, Ward- C-1101, Sunglow, Shreeji Ville 3(3), Room No.8, B Wing, 6th Vs. Complex, Almeida Floor, Ashar I.T. Park, Road Road,Panchpakhadi, Thane No.16-Z, Wagle Indl. Estate, (W),Mumbai 400 601. Thane-400 604. PAN/GIR No. : AEYPP 2433 (Appellant) ( Respondent) Assessee by: Shri M.C. Naniwadekar Department by: Shri Vikram Batra Date of Hearing: 07.09.2016 Date of Pronouncement: 28.09.2016 O R D E R PER AMARJIT SINGH, JM: assessee has filed present appeal against order dated 06.01.2015 passed by Commissioner of Income Tax (Appeals) 2, Mumbai [hereinafter referred to as CIT(A) ] relevant to A.Y.2011-12. 2. assessee has raised following grounds:- ITA No.562/M/2015 A.Y. 2011-12 1. learned CIT(A) erred in confirming action of AO in bringing to tax amount of Rs. 1 crore received by assessee from M/s. Colorcon Asia Pvt. Ltd. 2. On facts and in circumstances of case and in law, learned CIT(A) erred in holding that said amounts constituted revenue receipt in hands of assessee u/s.28(va) . He failed to appreciate that when assessee was not carrying on any business at all in relevant previous year, there could be no question of chargeability under head 'profits and gains of business or profession', and s. 28(va) could have no application whatsoever. 3. learned CIT(A) erred in failing to appreciate that said receipt was pure capital receipt and was not revenue receipt and was not chargeable to tax. orders of learned CIT(A) and learned AO are erroneous and contrary to legal position. 4. learned CIT(A) erred in relying upon decision of Guffic Chem Pvt. Ltd. despite same being distinguishable. 3. brief facts of case are that assessee filed its return of income on 30.07.2011 declaring total income to tune of Rs.10,98,927/- for A.Y.2011-12. return of income was processed u/s.143(1) of Income Tax Act, 1961 ( in short Act ) on 18.03.2014. return was selected for scrutiny under CASS and accordingly notice u/s.143(2) of Act was issued by ACIT, Circle, Thane on 13.09.2012 which was served upon assessee on 20.01.2012. Thereafter case was received by present Assessing Officer by way of transfer. Subsequently notice u/s. 143(2) and 142(1) of Act were issued and served upon assessee . assessee was director in M/s. Pharmaceutical Coatings Pvt. Ltd. (PCPL) and 2 ITA No.562/M/2015 A.Y. 2011-12 received salary from company. She was also getting pension from New India assurance Co. assessee was also deriving rental income as well as interest income from banks, post office and shares. During course of scrutiny, it was found that assessee had received amount of Rs.1.00 crores from M/s. Colorcon Asia Pvt. Ltd. as Non- compete fee during F.Y.2010-11. assessee did not offer said amount for taxation. Therefore after issuance of notice, AO brought said amount to tax. Feeling aggrieved assessee filed appeal before CIT(A) who dismissed appeal. Therefore, assessee has filed present appeal before us. ISSUE NO.1 TO 4:- 4. These issues are inter-connected therefore are being taken together for adjudication. However above said four issues which have been raised before us, are in connection with upholding order of AO by CIT(A) vide which AO taxed Non- compete fee to tune of Rs.1.00 crores. ld. Representative of assessee was fair enough to admit fact that this issue has been decided against assessee in assessee s husbands case (Hemant Prabhakar Pradhan) (in ITA No. 6794/Mum/2014, dt.13.07.2016 for AY 2011-12) having similar facts and circumstances. ld. Departmental Representative has strongly placed reliance on order passed by CIT(A).Moreover on perusal of order passed by CIT(A)-2 in question, we notice that CIT(A) has placed reliance 3 ITA No.562/M/2015 A.Y. 2011-12 upon decision of ITAT Mumbai Bench in case of Aunrag Toshniwal vs. DCIT in (ITA No.7032 & 7034 (Mum) of 2012 , A.Y. 2010-11 dated 16.01.2013 wherein it was specifically held that Non- compete fee is liable to be taxed under business income u/s. 28(va). CIT(A) has also placed reliance on law settled in case of Giffic Chem Pvt. Ltd. vs. CIT (332 ITR 602)(2011). No distinguishable material has been placed on record to deviate finding of CIT(A) in question. Moreover, case of assessee has been fully covered by case of her husband (Hemant Prabhakar Pradhan) (in ITA No. 6794/Mum/2014, dt.13.07.2016 for AY 2011-12) (supra). Therefore, in view of above circumstances, we are of view that CIT(A) has decided matter of controversy judiciously and correctly which does not require to be interfered with at this appellate stage. 5. In result, appeal filed by assessee is hereby dismissed. Order pronounced in open court on 28th September,2016. 28 , 2016 Sd/- Sd/- (R.C.SHARMA) (AMARJIT SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated : 28th September, 2016 JV, Sr. PS 4 ITA No.562/M/2015 A.Y. 2011-12 Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. ( CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// / /(Dy./Asstt. Registrar) ITAT, Mumbai 5 Shilpa Hemant Pradhan v. Income-tax Officer, Ward- 3(3), Thane