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1.1 Sale consideration 1,40,00,000 Less: Purchase of Res. Property u/s. 54F 1,42,05,000 ____________"

The above information was also captured in AIR information which was confronted by the AO to the assessee. The assessee in compliance thereof , inter-alia, submitted copy of deed of transfer and assignment of tenancy/occupancy agreement dated 24.06.2013 entered into between Dr. Rajul Jayesh Shah, outgoing tenant, the assessee as the confirming party, Lodha Properties Development Private Limited as Landlords and Dr. Maninder Chhabra as Incoming tenants . The I.T.A. No.6743/Mum/2017 assessee had received during the year Rs. 1,40,00,000/- as confirming party vide agreement dated 24.06.2013 from incoming tenant Dr Maninder Chhabra , wherein vide said agreement dated 24.06.2013 tenancy/occupancy rights were transferred and assigned by his wife Dr. Rajul J. Shah, outgoing tenant in favour of Dr. Maninder Chhabra, the incoming tenant , while the assessee stood as confirming party and has claimed to have transferred occupancy rights of the ground floor of the property under consideration. M/s. Lodha Properties Development P Ltd. , were also signatory as Landlords to the said agreement dated 24.06.2013. This deed of transfer and assignment of tenancy/occupancy rights was executed and registered with respect to Shop No.1, ―C‖ Wing, comprising of ground floor with mezzanine floor situated at Krishna Bhavan at 246, 248, 250 & 252 Walkeshwar Road, 11, Banganga Cross Road, Mumbai 400006, admeasuring 534.65 sq. Ft. equivalent to 49.72 sq. Meters (carpet area) in the structure no. 2 standing on the land bearing Cadastral Survey no. 123, Walkeshwar Division. The said agreement dated 24.06.2013 was filed before the AO and is placed on record at page 12--41/paper book. It all happened that the assessee wife was granted tenancy by M/s. Nathuram Ramnarayan Private Ltd. , Landlords of the aforesaid premises , vide tenancy agreement dated 17.03.1994 on monthly rental of Rs. 800/- . The copy of tenancy agreement is placed on record in paper book/ page no. 1 to 6. The said premises was to be used by tenant Dr. Rajul J. Shah, for commercial purposes as per terms of the said agreement. The said M/s. Nathuram Ramnarayan P. Ltd i.e. Landlords, vide letter dated. 30.03.1994 permitted Dr. Rajul J. Shah, and her husband i.e. the assessee to run clinic or a polyclinic for their medical profession. The said letter dated 30.03.1994 issued by Landlord namely M/s. Nathuram Ramnarayan P. Ltd was filed before the AO and is placed in paper book at page no. 7 and 8 . The rent receipt issued by M/s. Nathuram Ramnarayan P. Ltd, in favour of Dr. Rajul J. Shah , dated 30.03.1994 as well for the months of July and August 2005 are also I.T.A. No.6743/Mum/2017 placed in paper book filed by the assessee at page no. 9 and 10 . The assessee had claimed to be running his clinic for homeopathic medicine from the ground floor of the said premises since 1994, while his wife Dr. Rajul J. Shah, tenant of the said premises had claimed of running her clinic from the mezzanine floor of the said premises. The wife of the assessee Dr. Rajul J Shah was tenant of both ground floor and mezzanine floor of the said shop no. 1 , Krishna Bhavan. The assessee had claimed to be regularly paying rental to his wife Dr. Rajul J. Shah since 1994 for using ground floor of the said shop for running his clinic, details of which for last five years are as hereunder:-

                      Financial Year    Rent paid to Dr.
                                        Rajul Shah
                    2008-09             Rs.54,000
                    2009-10             Rs.54,000
                    2010-11             Rs.54,000
                    2011-12             Rs.54,000
                    2012-13             Rs.54,000

It is also claimed that said Dr Rajul J Shah was offering aforesaid rental income as income in the return of income filed with Revenue and paying taxes on the same. The said Dr Rajul J Shah had issued letter dated 14.11.2016 (pb/page 42-43)to the AO confirming that she was holding tenancy in the said premises since 01.04.1994. The letter also stipulated that the assessee was running his clinic from ground floor of the said shop while she was running her clinic from mezzanine floor of the said premises. She also confirmed that she received afore- stated rent for the premises from the assessee and the same were shown as income in her books of accounts. She confirmed that the assessee stood in said agreement dated 24.06.2013 as confirming party as he was sub-tenant in the said premises and payment of Rs. 1,40,00,000/- was received by the assessee for transferring his I.T.A. No.6743/Mum/2017 occupational rights and for giving vacant and peaceful possession of the aforesaid premises. The position had remained uncontroverted by Revenue as to running of clinic by the assessee from ground floor of said shop and payment of rentals to his wife. The assessee had also brought on record evidences that telephone connection in his name was installed at the said premises which is placed in paper book/ page no. 44 to 45 . The evidence is also brought on record that mobile/internet connection in his name was also installed at the said address, which is placed in paper book at page no. 46 to 48. The assessee was also holding licence for possession of rectified sprit including absolute alcohol for medicinal used by RMP , vide approval dated 21.05.1998 issued by Collector, Mumbai. The assessee also held permission in Form No. ‗K' dated 31.01.2001 and 22.02.2010 under Bombay Homeopathic and Biochemic Practitioners Act, 1959 to carry on practice of homeopathy wherein the aforesaid address of the assesssee is shown to be registered address in the records of Maharashtra Council of Homeopathy , which is placed in paper book page no. 50 and 51. The assessee also hold NOC dated 24.10.2007 issued by Maharashtra Council of Homeopathy for further study in India and Abroad(page 52/pb) and the letter is again showing the said premises as the registered address of the asssessee. The assessee ID card issued by Maharashtra Council of Homeopathic dated 05.12.2015 showing assessee holding registration number 7980 w.e.f. 16.03.1981 is placed on record at page no. 53 of the paper book wherein again the said address was shown as registered address of the assessee. Thus, the assessee is contending that it was running its clinic for homeopathy from the said premises. The assessee had claimed that he was running his clinic in the said premises as sub- tenant of his wife Dr. Rajul J. Shah, under permission granted on 30.03.1994 by M/s. Nathuram Ramnarayan P. Ltd. . Since the assessee has claimed that it has interest in the said property when the tenancy/occupancy rights were transferred and assigned by his wife Dr. Rajul J. Shah, in favour of Dr. Maninder Chhabra , the assessee I.T.A. No.6743/Mum/2017 stood as confirming party to transfer and assign his interest in the said property as sub-tenant/occupant in favour of Dr. Maninder Chhabra and received Rs. 1,40,00,000/- from said Dr Maninder Chabra who was incoming tenant. The clause 8(b) of the said agreement dated 24.06.2013 (pb/page 28) has specified that the assessee along with his wife had been in continuous, exclusive and uninterrupted use, occupation and possession of the aforesaid tenanted premises. His wife also received Rs. 1,95,00,000/- from Dr. Maninder Chhabra to transfer and assign tenancy/occupancy rights in the said shop in favour of Dr. Maninder Chhabra . It also happened that said M/s. Nathuram Ramnarayan P. Ltd. vide conveyance deed dated 15.12.2006 registered under no. BBE-2/12405 of 2006 on 22.12.2006 with the Sub-Registrar of Assurances at Mumbai had transferred their ownership interest in the aforesaid property in favour of M/s. Lodha Properties Development P Ltd. who are now owners of the said aforesaid property. Thus, by virtue of the conveyance deed dated 15.12.2006 registered on 22.12.2006, Lodha Properties Development Private Limited became Landlords/owners of this property. Under this transfer and assignment of tenancy/occupancy agreement dated 24.06.2013 , the said incoming tenant Dr. Maninder Chhabra also agreed to took over litigation of eviction pursued by M/s. Lodha Properties Development P Ltd., against Dr. Rajul J. Shah. The said Lodha Properties Development Private Limited was also signatory to agreement dated 24.06.2013 as Landlords wherein they were confirming party. The said M/s. Lodha Properties Development P Ltd., has also issued letter dated 16.12.2016 in favour of assessee wherein it confirmed about the entire deed of transfer and assignment of tenancy/occupancy wherein vide para 3 and 4 in the said agreement, the assessee was stated to be having interest in the said property by way of permission from Landlords M/s. Nathuram Ramnarayan P. Ltd which stood transferred under deed dated 24.06.2013 wherein the wife of the assessee who was monthly tenant transferred and assigned her tenancy rights in I.T.A. No.6743/Mum/2017 favour of incoming tenant Dr Maninder Chhabra , wherein the assessee had stood confirming party in the said deed dated 24.06.2013. The said letter dated 16.12.2016 is placed in paper book/page 54-55.The assessee has shown this receipt of Rs.1,40,00,000/- as income under the head ‗Income from Capital Gains', while the AO was of the view that the said receipts are to be brought to tax under the head ‗Income from other Sources' , vide assessment order dated 29.12.2016 passed by the AO u/s 143(3) of the 1961 Act .

6. Now , the Revenue is aggrieved by the appellate order dated 13.09.2017 passed by learned CIT(A) and has filed an appeal before the tribunal. Arguments are advanced by Ld. DR that tenancy was held by wife of the assessee of ground floor and mezzanine floor of shop no. 1, Krishna Bhavan and not by the assessee . It was submitted by learned DR that the assessee is claiming to be sub- tenant of the wife of the assessee and compensation of Rs. 1.4 crores was received by the assessee for transfer and assignment of his so called sub-tenancy/occupancy right with respect to this property as the assessee had claimed that it was running its clinic from ground floor of shop no. 1 , Krishna Bhavan, while the fact is that the assessee is not sub-tenant of his wife. Thus, it is claimed by learned DR that the assessee is medical practitioner and was only occupying the premises without any agreement, under permission granted by the then landlords/owners of the shop no.1 , Krishna Bhavan vide letter dated 30.03.1994. Thus, it was submitted that the assessee did not possess any interest in the said property. It was submitted by learned DR that the AO has rightly brought the said income to tax under the head ‗Income from other sources' . It was submitted by learned DR that Ld. CIT(A) erred in granting relief to the assessee on this issue. It was submitted by learned DR that the assessee was not sub-tenant and only assessee's wife was tenant in the said premises of both ground floor and mezzanine floor of shop no. 1, Krishna Bhavan. It was submitted that the then landlords/owners M/s. Nathuram I.T.A. No.6743/Mum/2017 Ramnarayan P. Ltd. had only granted permission to the assessee to run clinic which does not mean that the assessee acquired an interest or right in the said property as nowhere it is mentioned in the letter dated 30.03.1994 that the assessee is sub-tenant in the said premises . Thus it was submitted by learned DR that AO rightly brought to tax said income under the head ‗Income from other Sources' , while on the other hand Ld. Counsel for the assessee strongly contended that the assessee is sub-tenant/occupant and was running his clinic from the ground floor of the said tenanted premises being shop no. 1 at Krishna Bhavan since 1994 and he was occupying/possessing the said premises since 1994 uninterruptedly . It was submitted by learned counsel for the assessee that the assessee was paying rent to his wife for occupying/using the ground floor of said tenanted shop since 1994. It was submitted that the definition of the capital asset is very wide u/s. 2(14) and it is bundle of right. It was submitted that the assessee was enjoying the said rights as sub- tenant/occupier since 1994 for which rent was also paid to his wife who held tenancy rights in the said property and that is why the assessee has acted as a confirming party in the agreement for transfer and assignment of tenancy/occupancy rights by his wife in favour of incoming tenant for which consideration of Rs. 1.4 crores was received by the assessee. It is claimed that the assessee is holding uninterrupted possession of the ground floor of the shop since 1994 for which the rent was also paid to his wife Dr Rajula J. Shah who held tenancy in said premises . Our attention was drawn by learned counsel for the assessee to paper book/ page no. 1 to 6 wherein tenancy agreement dated 17.03.1994 for taking on rent said premises by wife of the assessee is placed. Our attention was also drawn to letter dated 30.03.1994 issued by landlord permitting assessee and his wife to run a clinic or a polyclinic for medical profession from said premises. The said letter is placed in paper book/page 7-8. Our attention was also drawn to rent receipt issued by landlord in favour of wife of the assessee acknowledging receipt of rent from wife of the I.T.A. No.6743/Mum/2017 assessee. The Rent receipts is dated 30.03.1994 which is placed in paper book/page 9. Further , Rent receipts for July and August 2005 are placed in paper book/page 10. Our attention was also drawn to agreement/deed dated 24.06.2013 for transfer/assignment of tenancy/occupancy rights by wife of the assessee Dr Rajula J Shah, outgoing tenant in favour of incoming tenant namely Dr. Maninder Chhabra while the assessee signed the said agreement as confirming party and Lodha Properties Development Private Limited signed the said agreement as Landlords. . The said agreement is placed in paper book/page number 12-41. Our attention was drawn to letter dated 14.11.2016 written by Dr. Rajula J Shah to the AO confirming that she was tenant in the said shop at Krishna Bhavan and was regularly paying rent/taxes . She has stated in the letter dated 14.11.2016 that the assessee was occupying premises since 1994 and was paying rent since 1994. She stated that he was carrying on his clinic from the ground floor of the said shop at Krishna Bhavan while she was carrying on her clinic from mezzanine floor of the said premises. It is also stated by her that she was declaring rental income received from her husband towards sub-tenancy of the ground floor of the shop no. 1 of Krishna Bhuvan in the return of income filed with Revenue and paying due taxes to Government. The said letter is placed in paper book/page 42-43. Our attention was also drawn to telephone, mobile and internet bills of the assessee which are in the name of the assessee and the address shown in the said bills was of the ground floor of Krishna Bhawan. The said invoices are placed in paper book/page 44-48. Our attention was also drawn to License issued by Collector, Mumbai, dated 21.05.1998 for allowing assessee to possess rectified spirit including absolute alcohol for medicinal use by a RMP which also shows registered address of the assessee at the said premises at Krishna Bhavan. The said license is placed in paper book/page 49. Our attention was also drawn to Form No. ‗K' wherein Maharashtra Council of Homeopathy vide approval dated 31.01.2001 has allowed assessee to carry on profession of Homeopathy from the I.T.A. No.6743/Mum/2017 said premises at Krishnabhuvan in terms of Section 26(1)(a) of the Bombay Homeopathic and Biochemic Practitioners Act, 1959. The said license is placed in page 50/pb. Our attention was also drawn to similar certificate dated 22.02.2010 which is placed in paper book/page 51. Our attention was also drawn to NOC dated 24.10.2007 issued by Maharashtra Council of Homeopathy granting permission to assessee to further study in India/Abroad. The said NOC reflects the address of the aforesaid Krishna Bhuvan as address of the assessee. The said NOC is placed in paper book/page 52. Our attention was also drawn to ID issued by Maharashtra Council of Homeopathy, dated 05.12.2015 which shows that the assessee is registered practitioner since 16.03.1981 and holds Regn. No. 7980 . The said ID also shows the address of the assessee to be at the same premises at Krishna Bhawan. The said ID is placed in paper book/page 53. Our attention was also drawn to page 54-55 /paper book wherein letter dated 16.12.2016 written by Lodha Properties Development Private Limited is placed wherein the assessee's wife had stated to have transferred and assigned the tenancy rights in said property with the confirmation of the assessee to Dr. Maninder Chhabra(incoming tenant) vide registered deed dated 24.06.2013 wherein Lodha Properties Development Private Limited, Owners of the plot stood as confirming party. Reliance is placed by learned counsel for the assessee on the decision of Hon'ble Gujarat High Court in the case of ACIT v. G.C.Shah & Co. reported in (2014)369 ITR 323(Gujarat) and decision of Mumbai-tribunal in the case of Kewal Silk Mills v. ACIT reported in (2013) 21 ITR(T) 121(Mum.-trib.) . Our attention was drawn to page no. 104 of the paper book wherein meaning of tenant has been explained in the order of tribunal in Kewal Silk Mill(supra) by reproducing extracts from decision of Hon'ble Supreme Court in the case of Anandram Chandanmal Munot v. Bansilal Chunilal Kabra, AIR 2000 SC 288, which extract is reproduced here under:-

                    Financial Year       Rent     Received
                                         from    Dr.      J.K
                                         Shah
                    2008-09              Rs.54,000
                    2009-10              Rs.54,000
                    2010-11              Rs.54,000
                    2011-12              Rs.54,000
                    2012-13              Rs.54,000

His wife, Dr Rajul J Shah has also confirmed vide letter dated. 14.11.2016 that she was receiving rent from her husband for running his clinic from ground floor of the said premises since 1994 and she was including the said rent income in her return of income filed with Revenue. She has also stated in the said letter that her husband Dr. Jayesh K Shah was sub-tenant in the said premises although no formal agreement was entered into by her with her husband. It is also claimed by her in this letter dated 14.11.2016 which was filed before the AO that she transferred and assigned the tenancy in the said premises to the Developers (Lodha Properties and Development Private Limited) by an agreement dated 24.06.2013 and since her husband occupied the said premises as her sub-tenant, he joined in the execution of the above agreement as confirming party. Since , her husband was occupier of the ground floor of the said premises, the developer had paid him Rs. 1,40,00,000/- on 21.06.2013 as consideration for transferring his occupation/sub-tenancy rights and for giving vacant and peaceful possession of the ground floor premises. She also claimed that she received Rs.1,95,00,000/- from the said developers for transferring her tenancy rights and for giving peaceful and vacant possession of the premises occupied by her. The I.T.A. No.6743/Mum/2017 assessee has also brought on record several evidences to prove that he was running his clinic for pursuing his practice of medical profession from the ground floor of the said premises. The evidences filed by the assessee are in the nature of telephone , mobile and internet bills installed in the name of the assessee with the said address of Krishna Bhavan shown as assessee's registered, which are placed in paper book page no. 44 to 48. The assessee was also holding licence for possessing rectified sprit including absolute alcohol for the medicinal use by Registered Madical Practitioner(RMP) issued by Collector, Mumbai, vide approval dated 21.05.1998 in favour of the assessee with this address of Krishna Bhavan shown as assessee's registered address(pb/page 49.) . The assessee is also holding registration issued by Maharashtra Council of Homeopathy in favour of the assessee to carry on practice of homeopathy as required under Section 26 of the Bombay Homeopathy and Biochemic Practitioner's Act,1959 , dated 31.01.2001 and 22.02.2010 , wherein the address of the assessee is shown to be of Krishna Bhawan in both these registrations(pb/page 50-51) as registered address of the assessee . The Maharashtra Council of Homeopathy vide letter dated 24.10.2007(pb/page 52) had issued NOC in favour of the assessee for pursuing further studies in India/Abroad wherein the aforesaid address of Krishna Bhuvan was shown as registered address of the assessee(pb/page 52). The ID held by the assessee issued by Maharashtra Council of Homeopathy is again showing the said address of the assessee , which is placed in paper book/page 53. M/s Lodha Properties Development Private Limited has issued letter dated 16.12.2016 wherein they have described themselves to be the owner of the said property wherein they have claimed that they acquired land bearing Cadastral Survey Nos. 92,122 and 123 of Malabar and Cumballa Hill Division lying, being situated at 246, 248, 250 and 252, Walkeshwar Road, 11, Banganga Cross Road , Mumbai-400006 alongwith buildings/structures standing thereon known as ―Krishna Bhuvan‖ from M/s Nathuram Ramnarayan Private Limited vide registered I.T.A. No.6743/Mum/2017 conveyance deed executed in the month of December 2006 and registered with Sub-Registrar of Assurance at Mumbai. Thus, the said M/s. Nathuram Ramnarayan P. Ltd., had already transferred its ownership interest in the said property vide conveyance deed dated 15.12.2006 which was registered with Sub-Registrar of Assurance at Mumbai under no. BBE-2/12403-05 of 2006 in favour of M/s. Lodha Properties Development P Ltd. on 22.12.2006, by virtue of this conveyance deed M/s. Lodha Properties Development P Ltd., became the owner of the property and suit of eviction was persued by Lodha Properties Development Private Limited against the wife of the assessee. There was a deed of transfer and assignment of tenancy and occupancy executed by Dr. Rajul J. Shah in favour of Dr. Maninder Chhabra, on 24.06.2013 wherein assessee stood as confirming party and M/s. Lodha Properties Development P Ltd., were referred to as Landlords . The assessee got consideration of Rs. 1.4 crore by virtue of being confirming party while his wife Dr. Rajul J. Shah got Rs. 1.95 crores under agreement dated 24.06.2013 for transfer of her tenancy and occupancies in favour of Dr. Maninder Chhabra. In the aforesaid letter dated 16.12.2016, the wife of the assessee Dr. Rajul J. Shah was described as monthly tenant of the said M/s Nathuram Ramnarayan Private Limited in respect of shop no. 1 , ―C‖ Wing, Ground Floor of in the said building ―Krishna Bhuvan‖. The said letter dated 16.12.2016 also stipulates that the owners understand that M/s Nathuram Ramnarayan Private Limited had permitted Dr. Rajul Shah and the assessee to run a clinic or a polyclinic from the said tenanted premises subject to approvals from requisite authorities. It is also stated in this letter that vide registered deed of transfer and assignment of tenancy/occupancy dated 24.06.2013 , the said Dr Rajul Shah with the confirmation of her husband said Dr Jayesh Shah assigned and transferred the tenancy rights in respect of the said tenancy rights in respect of the said tenanted premises to Mr. Maninder Chhabra(incoming tenant) for consideration and other terms and conditions as are stated in the said deed. They also confirmed I.T.A. No.6743/Mum/2017 that they acted as confirming party in said agreement dated 24.06.2013. The said letter dated 16.12.2016 was filed before the AO by the assessee (pb/page 54-55) also. Thus, it is claimed by the assessee that he held occupancy/sub-tenancy rights in the ground floor of the said premises at shop no. 1, Krishna Bhuvan uninterruptedly since 1994 wherein he was running his clinic to undertake practice of medical profession and the assessee also paid rent to his wife Dr. Rajula J Shah since 1994 which she declared as her rental income in the return filed with Revenue. The said occupancy/sub-tenancy right is claimed to be transferred in favour of incoming tenant Dr. Maninder Chhabra vide agreement dated 24.06.2013. Thus, it is for a long period of 20 years or so , the assessee had claimed to be running his clinic from ground floor of the said premises and paying rent to his wife. The clause 8(b) of the agreement dated 24.06.2013 entered with Dr. Maninder Chhabra clearly stipulates that the outgoing tenant along with confirming party has been in continuous , exclusive and uninterrupted use, occupation and possession of the said tenanted premises. The said clause 8(b) of agreement dated 24.06.2013 is reproduced hereunder: