- (1.) PRESENT appeal has been filed against the order dated 10.8.2007 passed by Income Tax Appellate Tribunal allowing the respondents -assessee's appeal. The department has raised the following substantial question of law, said to arise out of the order of Income Tax Tribunal: 1. Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the order of the Commissioner of INcome Tax, Muazaffarnagar passed under section 263 is not prejudicial to the revenue ignoring that the capital gain tax is chargeable to tax on transfer of property in the financial year relevant to A/Y -2002 -03, cost of acquisition of which is liable to be taken as cost of acquisition by the assessee on dissolution of the firm?
(2.) WHETHER on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the order of the Commissioner of Income Tax, Muzaffarnagar passed under section 263 is not prejudicial to the revenue ignoring the cost of acquisition of the property is the sale proceeds of the property as on date of dissolution of the firm which book value? 2. It is not necessary to go into the facts of the case as we find that by the impugned order, the Tribunal had decided 8 appeals relating to the same issue and all other 7 appeals have been dismissed by this court vide order dated 22.7.2010 being ITA (D) Nos. 137 of 2008, 146 (D) of 2002 to 151 of 2008. The order dated 22.7.2010 is reproduced below: The Tribunal by the impugned order has set aside the order passed by the Commissioner of Income Tax on the ground that the assessment order was not pre -judicial to the interest of Revenue. Tribunal held that the partnership firm, M/s Genda Mal & Sons has not been assessed to tax for the capital gain and the share income of the partners of the partnership firm towards capital gain was less than the amount which has been assessed by the assessing authority under Section 55(2)(b)(ii) of the Income Tax Act (hereinafter referred to as the "Act") and, therefore, the assessment order was not pre -judicial to the interest of Revenue. For invoking the provisions of Section 263 of the Act two conditions namely that the order is erroneous and pre -judicial to the interest of Revenue, should co -exist. If one of the condition does not exist the provisions of Section 263 of the Act can not be invoked. On the facts and circumstances, the Tribunal has recorded a categorical finding based on material on record that the assessment order was not pre -judicial to the interest of Revenue. Learned Standing Counsel is not able to dispute the findings recorded by the Tribunal. In view of the above, we are of the opinion that the findings of the Tribunal are finding of fact based on the material on record and no substantial question arise from the order of the Tribunal. In the result, the appeal fails and is accordingly, dismissed. As the facts and the issue involved is the same and common, respectfully following the aforesaid judgment for the reasons mentioned in the judgment and order dated 22.7.2010 we dismiss this appeal also.;