Shri Atul Krishna Ashtekar, Pune V. Dy. CIT, Central Circle 2(3), Pune

ITA 1065/PUN/2013

• Counselvise Citation: 106524514 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 13-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SUNIL V PATHAK; D R BARVE
• Keywords: Capital asset
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.1062/PN/2013 (ASSESSMENT YEAR : 1999-2000) SHRI VIPUL KRISHNA ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : AEKPA3756R . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ITA NO.1063/PN/2013 (ASSESSMENT YEAR : 1999-2000) SHRI KRISHNA RAJARAM ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : AAOPA8069F . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ITA NO.1064/PN/2013 (ASSESSMENT YEAR : 1999-2000) SHRI AMOL KRISHNA ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : ACAPA2005K . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ITA NO.1065/PN/2013 (ASSESSMENT YEAR : 1999-2000) SHRI ATUL KRISHNA ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : ABIPA6318C . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ITA NO.769/PN/2010 ITA NO.1066/PN/2013 (ASSESSMENT YEAR : 1999-2000) LATE SHRI RAJARAM RANGNATH ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : ACPPA7665L . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ITA NO.1088/PN/2013 (ASSESSMENT YEAR : 1999-2000) MRS. RADHIKA KRISHNA ASHTEKAR, 826/27, BUDHWAR PETH, PUNE 411 002. PAN : AAZPA3391F . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), PUNE. . RESPONDENT ASSESSEE BY : MR. SUNIL V. PATHAK & MR. D.R. BARVE DEPARTMENT BY : MR. A. K. MODI DATE OF HEARING : 28-11-2014 DATE OF PRONOUNCEMENT : 30-12-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED SIX APPEALS HAVE BEEN PREFERRED BY DI FFERENT ASSESSEES WHO BELONG TO ONE FAMILY AND SINCE COMMON ISSUES AR E INVOLVED THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE CONVENIENCE AND BREVITY. 2. ITA NO.1063/PN/2013 IN THE CASE OF SHRI KRISHNA RAJARAM ASHTEKAR IS TAKEN AS THE LEAD CASE. THIS APPEAL IS DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 31.12.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.12.2006 PAS SED BY THE ASSESSING ITA NO.769/PN/2010 OFFICER U/S 143(3) R.W.S. 147 OF THE INCOME-TAX ACT , 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 1999-2000. 3. THE FIRST AND THE FOREMOST OBJECTION RAISED BY T HE ASSESSEE IS WITH REGARD TO THE VALIDITY OF THE PROCEEDINGS INITIATED BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE U/S 147/148 OF THE ACT. THE FAC TS AND CIRCUMSTANCES UNDER WHICH THE ASSESSING OFFICER HAS INITIATED PROCEEDIN GS U/S 147/148 FOR THE ASSESSMENT YEAR 1999-2000 IN ALL THE CASES IS IDENT ICAL. 4. THE BRIEF BACKGROUND OF THE DISPUTE CAN BE SUMMA RIZED AS FOLLOWS. THE ASSESSEE ALONG WITH HIS FAMILY MEMBERS OWNED SO ME AGRICULTURAL LANDS AT HADAPSAR, PUNE. THE ASSESSEE AND HIS FAMILY MEMBER S ALONG WITH OTHER NEIGHBOURING FARMERS CAME TOGETHER WITH THE OBJECT OF DEVELOPING THEIR LAND INTO A TOWNSHIP. WITH THE SAID PURPOSE, VARIOUS FA RMERS GAVE THEIR LANDS FOR DEVELOPMENT TO MAGARPATTA TOWNSHIP DEVELOPMENT AND CONSTRUCTION CO. LTD. (IN SHORT MTDC) FOR DEVELOPMENT OF LAND AND IN TU RN THEY ENTERED INTO AN AGREEMENT WITH MTDC ON 26.03.1999. IT WAS POINTED OUT IN THE COURSE OF HEARING THAT THERE ARE ABOUT 350 FARMERS WHO ENTERE D INTO SUCH AN AGREEMENT WITH MTDC WHERE THE INTENTION WAS TO DEVELOP A TOWN SHIP OF RESIDENTIAL FLATS, PLOTS AND OTHER COMMERCIAL AREAS. THE INDIVIDUAL F ARMERS WERE TO SHARE THE PROFITS/LOSSES FROM SUCH DEVELOPMENT ACTIVITY JOINT LY ALONG WITH MTDC IN PROPORTION TO THEIR LANDHOLDING. 5. THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF T HE ACT DATED 29.03.2006 ON THE GROUND THAT THE AGREEMENT DATED 2 6.03.1999 ENTERED WITH MTDC HAD RESULTED IN A CAPITAL GAIN IN THE HANDS OF ASSESSEE CHARGEABLE TO TAX FOR ASSESSMENT YEAR 1999-2000. AS A CONSEQUENC E OF THE AFORESAID STAND, THE ASSESSING OFFICER FINALIZED AN ASSESSMEN T U/S 143(3) R.W.S. 147/148 OF THE ACT DATED 29.12.2006 WHEREBY CAPITAL GAIN OF RS.71,46,709/- ON ITA NO.769/PN/2010 ACCOUNT OF THE AGREEMENT WITH MTDC WAS ASSESSED TO TAX IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 1999-2000 . 6. THE STAND OF THE ASSESSEE WAS THAT THERE IS NO TRANSFER OF LAND AS PER THE AGREEMENT DATED 26.03.1999 WITH MTDC; AND, SECO NDLY, THAT THE CAPITAL GAIN ON TRANSFER OF LAND TO MTDC WAS NOT TAXABLE IN ASSESSMENT YEAR 1999- 2000 BUT WAS TO BE TAXED FOR THE PERIOD/YEARS IN WH ICH CONSIDERATION IS RECEIVABLE FROM MTDC. THE AFORESAID CONTENTIONS OF THE ASSESSEE DID NOT FIND FAVOUR WITH EITHER THE ASSESSING OFFICER OR THE CIT (A), AND THEREFORE ASSESSEE IS IN APPEAL BEFORE US. IN SUM AND SUBSTANCE, THE INCOME-TAX AUTHORITIES HAVE TAXED THE CAPITAL GAIN EARNED BY THE ASSESSEE IN PU RSUANCE OF THE AGREEMENT DATED 26.03.1999 WITH MTDC IN ASSESSMENT YEAR 1999- 2000 WHILE THE ASSESSEE HAS SHOWN SUCH CAPITAL GAINS OVER THE YEAR S WHEN THE CONSIDERATION IS RECEIVABLE FROM MTDC. IN THIS CONTEXT, THE LD. REPRESENTATIVE FOR THE ASSESSEE HAS FURNISHED COPIES OF COMPUTATIONS OF IN COME FOR ASSESSMENT YEARS 1999-2000 TO 2014-15 WHICH SHOW THAT THE CONS IDERATION WAS RECEIVED FROM MTDC OVER THE PERIOD STARTING FROM THE PREVIOU S YEAR RELEVANT TO THE ASSESSMENT YEARS 2004-05 TO 2013-14. THE INCOME HA S BEEN OFFERED BY THE ASSESSEE ACCORDINGLY AND NOT IN ASSESSMENT YEAR 199 9-2000 WHEN NO CONSIDERATION WHATSOEVER WAS RECEIVED BY THE ASSESS EE. 7. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE F OR THE ASSESSEE POINTED OUT VARIOUS PLEAS TO SUPPORT ASSESSEES CLAIM THAT THE CAPITAL GAIN ON ACCOUNT OF TRANSFER OF LAND TO MTDC WAS NOT TAXABLE IN ASSE SSMENT YEAR 1999-2000. FIRSTLY, IT IS POINTED OUT THAT ALL THE FARMERS AGR EED TO GIVE THEIR LAND FOR DEVELOPMENT TO MTDC BY WAY OF AGREEMENT DATED 26.03 .1999 BUT THE ACTUAL POSSESSION OF LAND WAS NOT HANDED-OVER ON 26.03.199 9. IN THIS CONTEXT, IT IS POINTED OUT THAT THE ASSESSEE AND HIS FAMILY MEMBER S WERE CULTIVATING THEIR LANDS EVEN BEYOND THE YEAR 2003-04, AND AGRICULTURA L INCOME WAS ITA NO.769/PN/2010 APPROPRIATELY DECLARED IN THE RESPECTIVE YEARS. IN SUPPORT, A REFERENCE HAS ALSO BEEN MADE TO THE SUBMISSIONS MADE TO THE CIT(A ) WHEREBY THE 7/12 EXTRACTS FROM THE GOVERNMENT REVENUE RECORDS WERE P RODUCED TO SHOW THAT ASSESSEE HAS TAKEN VARIOUS CROPS LIKE, SUGARCANE, R ICE, VEGETABLE, ETC. EVEN BEYOND THE YEAR 2003-04. SECONDLY, IT IS POINTED O UT THAT AGREEMENT DATED 26.03.1999 WAS NOT A DEVELOPMENT AGREEMENT AS IT WA S DONE ON A STAMP PAPER OF RS.20/- AND NO CONSIDERATION WAS PAID TO T HE FARMERS. THEREFORE, ACCORDING TO THE ASSESSEE, IN THE ABSENCE OF ANY PO SSESSION BEING HANDED- OVER AND IN THE ABSENCE OF ANY DEVELOPMENT AGREEMEN T OR ANY CONSIDERATION BEING PAID, THE PROVISIONS OF SECTION 2(47)(V) OF T HE ACT R.W.S. 53A OF THE TRANSFER OF PROPERTY ACT, 1882 HAS BEEN WRONGLY INV OKED BY THE INCOME-TAX AUTHORITIES IN ORDER TO TAX THE CAPITAL GAIN IN ASS ESSMENT YEAR 1999-2000. THIRDLY, THE FARMERS WERE TO GET CONSIDERATION FOR JOINT DEVELOPMENT WITH MTDC IN A PROPORTION WHICH WAS DETERMINED ON A PRO RATA BASIS DEPENDING ON THE LANDHOLDING OF EACH FARMER WHICH WAS GIVEN FOR DEVELOPMENT. THE FARMERS WERE ENTITLED TO A SHARE IN THE SALE PROCEEDS OF TH E BUILT-UP AREA, PLOTS AND TDRS IN A PHASED MANNER, I.E. ON SALE OF BUILT-UP A REA MTDC SHARE 70% AND FARMERS SHARE 30%; ON SALE OF PLOTS MTDC SHAR E 40% AND FARMERS SHARE 60%; AND, ON SALE OF TDRS MTDC SHARE 0% AND FARMERS SHARE 100%. MTDC STARTED DEVELOPMENT IN THE YEAR 2001 AND THE P ROJECT WAS ON AN APPROXIMATE TOTAL AREA OF 400 ACRES OF LAND INVOLVI NG 350 FARMERS. THEREFORE, MTDC STARTED TAKING POSSESSION OF LAND OVER THE YEA RS FROM 2001 AND THUS THE ASSESSEE HAD NOT GIVEN POSSESSION OF THE LAND I N THE YEAR 1999 WHEN THE AGREEMENT DATED 26.03.1999 WAS ENTERED INTO. COPY OF THE AGREEMENT WITH MTDC DATED 26.03.1999 HAS ALSO BEEN REFERRED TO AND IN-PARTICULAR CLAUSE (14) THEREOF. IN TERMS OF THE SAID CLAUSE, IT IS P RESCRIBED THAT IF MTDC WAS TO INCUR LOSSES IN THE DEVELOPMENT OF THE TOWNSHIP, SU CH LOSS WOULD BE SHARED BY ALL THE FARMERS IN PROPORTION TO THEIR LANDHOLDI NGS. ON THIS BASIS, IT IS SOUGHT TO BE POINTED OUT THAT ON 26.03.1999 ASSESSEE WAS N OT SURE AS TO THE EXACT ITA NO.769/PN/2010 QUANTUM OF INCOME THAT HE WOULD RECEIVE ON TRANSFER OF LAND TO MTDC. IN VIEW OF CLAUSE (14), THERE WAS ALSO A POSSIBILITY THAT N O CONSIDERATION WAS RECEIVABLE BY THE ASSESSEE BECAUSE OF INCURRENCE OF LOSSES BY MTDC. THUS, AS ON 26.03.1999 THERE WAS NO CRYSTALLIZATION OF CO NSIDERATION RECEIVABLE BY THE ASSESSEE AS IT DEPENDED ON THE SALE PROCEEDS AC CRUING ON SALE OF FLATS AND PLOTS, WHICH WAS RECEIVABLE OVER THE YEARS. UN DER THESE CIRCUMSTANCES, IT HAS BEEN POINTED OUT THAT THERE WAS NO JUSTIFICATIO N FOR CHARGING CAPITAL GAIN IN ASSESSMENT YEAR 1999-2000. 8. EXPLAINING THE OPERATING MECHANISM OF THE DEVELO PMENT AGREEMENT, THE LD. REPRESENTATIVE POINTED OUT THAT AFTER THE D EVELOPMENT OF TOWNSHIP WAS STARTED BY MTDC AND IT RECEIVED THE SALE PROCEE DS FROM THE CUSTOMERS, EACH YEAR IT INTIMATED THE FARMERS ABOUT THEIR SHAR E IN THE SAID SALE PROCEEDS WHICH BECAME DUE TO THEM IN TERMS OF CLAUSE (14) OF THE AGREEMENT READ WITH SCHEDULE III THEREOF. ON THE BASIS OF SUCH ADVICE BY MTDC FROM YEAR TO YEAR, THE ASSESSEE OFFERED THE CAPITAL GAIN STARTING FROM THE ASSESSMENT YEAR 2003- 04 ONWARDS. A REFERENCE WAS MADE TO PAGE 100 OF PA PER BOOK WHEREIN IS PLACED THE BREAK-UP OF THE CAPITAL GAINS OFFERED BY THE ASSESSEE FROM ASSESSMENT YEARS 2003-04 TO 2013-14 AND ON THIS BAS IS IT IS SOUGHT TO BE POINTED OUT THAT ASSESSEE HAS OFFERED MUCH HIGHER C APITAL GAINS FOR TAXATION OVER THE YEARS THAN WHAT HAS BEEN TAXED BY THE ASSE SSING OFFICER IN ASSESSMENT YEAR 1999-2000. IN THE CASE OF THE ASSE SSEE FOR ASSESSMENT YEAR UNDER CONSIDERATION I.E. 1999-2000 CAPITAL GAI N HAS BEEN TAXED AT RS.71,46,709/- WHEREAS ASSESSEE HAS OFFERED TO TAX CAPITAL GAINS FOR THE ASSESSMENT YEARS 2003-04 TO 2013-14 OF RS.72,79,93, 648/-. THE AFORESAID ASPECT HAS BEEN HIGHLIGHTED TO SAY THAT THE ASSESSE E HAS NOT AVOIDED ANY TAXES BY NOT SHOWING CAPITAL GAINS IN ASSESSMENT YE AR 1999-2000. ITA NO.769/PN/2010 9. APART FROM ALL THE AFORESAID OBJECTIONS, ONE PER TINENT POINT RAISED BY THE ASSESSEE IS THAT THE DEPARTMENT HAD ISSUED NOTICES U/S 148 OF THE ACT IN THE CASE OF MOST OF THE FARMERS FOR ASSESSMENT YEAR 199 9-2000 WITH A VIEW TO TAX THE CAPITAL GAINS ON TRANSFER OF LAND TO MTDC. THE LD. REPRESENTATIVE SUBMITTED THAT LIKE THE ASSESSEE, OTHER 350 (APPROX ) FARMERS WHO ARE SIGNATORIES TO THE AGREEMENT DATED 26.03.1999 WITH MTDC DISCLOSED CAPITAL GAIN OVER THE YEARS FROM ASSESSMENT YEARS 2003-04 T O 2013-14 AND THEY DID NOT SHOW THE CAPITAL GAIN IN ASSESSMENT YEAR 1999-2 000. THE LD. REPRESENTATIVE ASSERTED THAT THE DEPARTMENT HAS ACC EPTED THEIR CLAIMS AND TAXED THE CAPITAL GAINS OVER THE YEARS. IN SOME OF THEIR CASES, NOTICES U/S 148 OF THE ACT ISSUED FOR ASSESSMENT YEAR 1999-2000 WER E LATER ON DROPPED BY THE DEPARTMENT AND NO ASSESSMENT WAS MADE TAXING THE CA PITAL GAIN IN THEIR HANDS FOR ASSESSMENT YEAR 1999-2000. 10. THE AFORESAID AVERMENTS HAVE BEEN MADE BEFORE U S IN THE FORM OF A DULY SWORN AFFIDAVIT DATED 25.11.2014. THE RELEVAN T PORTION OF THE AFFIDAVIT FURNISHED BY THE ASSESSEE READS AS UNDER :- I HAD AN AGRICULTURAL LAND AT HADAPSAR ALONG WITH MY VARIOUS FAMILY MEMBERS. BY THE CONTRACT AGREEMENT DATED 26.03.1999 WITH MAGARPATTA TOWNSHIP DEVELOPMENT AND CONSTRUCTION CO. LTD., (MT DC), I AGREED TO GIVE MY LAND FOR DEVELOPMENT TO MTDC AND IN WRITTEN I RE CEIVED THE CONSIDERATION AS PER THE SAID CONTRACT FROM MTDC OVER A PERIOD OF YEARS STARTING FROM F.YS. 2003 - 04 TO 2012 - 13. EVERY YEAR, BASED ON THE SA LES EFFECTED OF THE PLOTS AND THE FLATS, MTDC WOULD ISSUE A CERTIFICATE TO EA CH FARMER ABOUT THE AMOUNT DUE TO HIM FROM MTDC AND ON THE BASIS OF SUCH CERTI FICATE, I HAVE SHOWN THE CAPITAL GAINS ON TRANSFER OF MY LAND TO MTDC OVER T HE YEARS FROM F.YS. 2003- 04 TO 2012-13. I FURTHER STATE THAT I WAS CULTIVATING THIS LAND TI LL 2004 APPROX. WHEN THE POSSESSION OF THE LAND WAS HANDED OVER TO MTDC FOR DEVELOPMENT AND I HAD DISCLOSED AGRICULTURAL INCOME THEREFROM IN MY RETUR NS TILL THAT YEAR. ON 26.03.1999, WHEN I MADE AN MOU WITH MTDC, I HAD NOT HANDED OVER THE POSSESSION OF THE SAID LAND TO MTDC. LIKE ME, THERE WERE ABOUT 350 FARMERS WHO WERE THE SIGNATORIES TO THE MOU DATED 26.03.1999 WITH MTDC. MOST OF THEM, HAVE DISCLOSED THE CAPITAL GAINS ON TRANSFER OF LAND TO MTDC OVER THE YEARS FR OM F.YS. 2003 - 04 TO 2012 - 13 AND THEY HAVE NOT SHOWN THE CAPITAL GAINS IN A .Y. 1999 - 2000 ON THE BASIS OF CONTRACT WITH MTDC. THE IT DEPT. ACCEPTED THEIR CLAIMS AND TAXED THE CAPITAL GAINS OVER THE YEARS. IN SOME OF THEIR CASE S, NOTICES U/S 148 WERE ITA NO.769/PN/2010 ISSUED FOR A.Y. 1999 - 2000 AND LATER ON, THESE PRO CEEDINGS WERE DROPPED BY THE DEPT. AND NO ASST. FOR TAXING THE CAPITAL GAINS IN THEIR HANDS WAS TAKEN FOR A.Y. 1999 - 2000. COPIES OF SUCH NOTICES ISSUED IN A FEW CASES ARE ATTACHED HEREWITH. I AFFIRM THAT WHATEVER IS STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY INFORMATION AND KNOWLEDGE. 11. AT THE TIME OF HEARING, IN SUPPORT OF THE AVERM ENTS MADE, OUR ATTENTION WAS DRAWN TO THE COPIES OF NOTICES ISSUED U/S 148 O F THE ACT IN SOME OTHER CASES AND IT WAS ASSERTED THAT NO ASSESSMENTS TAXIN G THE CAPITAL GAIN IN ASSESSMENT YEAR 1999-2000 HAVE BEEN FINALIZED. FUR THER, ASSESSMENT ORDERS OF SUCH OTHER FARMERS WHEREIN CAPITAL GAINS HAVE BE EN TAXED IN THE FUTURE BY THE DEPARTMENT HAVE ALSO BEEN PLACED IN THE PAPER B OOK AT PAGES 234 TO 279. IN VIEW OF THE AFORESAID, THE POINT RAISED BY THE ASSESSEE IS THAT IF THE DEPARTMENT HAS ACCEPTED A PARTICULAR VIEW IN SIMILA R CASES IT IS NOT JUSTIFIED IN TAKING A CONTRARY VIEW IN THE CASE OF THE ASSESSEE, WITHOUT ESTABLISHING THAT THE CASE OF THE ASSESSEE IS DIFFERENT FROM OTHER CA SES. THEREFORE, IT IS SOUGHT TO BE CANVASSED THAT ADDITION OF CAPITAL GAINS MADE IN THE IMPUGNED ASSESSMENT ORDER FOR ASSESSMENT YEAR 1999-2000 IN T HE CASE OF THE ASSESSEE AND HIS FAMILY MEMBERS SHOULD ALSO BE DELETED FOLLO WING THE PRINCIPLES OF CONSISTENCY LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF BERGER PAINTS INDIA LTD. VS. CIT, (2004) 266 ITR 99 (SC). 12. AT THE TIME OF HEARING, IT WAS ALSO POINTED OUT THAT EVEN IN SOME OF THE CASES OF THE ASSESSEES FAMILY LIKE, AMOL KRISHNA A SHTEKAR AND ATUL KRISHNA ASHTEKAR, ASSESSING OFFICER HAS TAXED CAPITAL GAINS IN ASSESSMENT YEAR 2007- 08 AS DECLARED BY THEM ON THE BASIS OF THE YEARLY E NTITLEMENT CERTIFICATES ISSUED BY THE MTDC AND SUCH ASSESSMENT HAVE BEEN CO MPLETED U/S 143(3) OF THE ACT. THE COPIES OF SUCH ASSESSMENT ORDERS HAVE ALSO BEEN PLACED ON RECORD. ON THIS BASIS, IT IS SOUGHT TO BE MADE OUT THAT ON ONE HAND THE DEPARTMENT HAS TAXED THE CAPITAL GAINS OVER THE YEA RS IN THE HANDS OF SUCH APPELLANTS AND HAS ALSO TAXED THE SAME IN ASSESSMEN T YEAR 1999-2000 I.E. ITA NO.769/PN/2010 YEAR UNDER CONSIDERATION. THIS HAS LEAD TO DOUBLE TAXATION WHICH ACCORDING TO THE ASSESSEE IS UNJUSTIFIED. 13. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESE NTATIVE HAS PRIMARILY RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF THE CASE OF THE REVENUE. IN SUM AND SUBSTANCE, THE CASE MADE OUT B Y THE REVENUE IS THAT ASSESSEE ALONG WITH OTHER LAND OWNERS EXECUTED AN A GREEMENT DATED 26.03.1999 WITH MTDC WHEREBY IT ASSIGNED DEVELOPMEN T RIGHTS OF THE LAND TO MTDC. AS PER THE REVENUE, THE AGREEMENT DATED 26.0 3.1999 IS NOTHING BUT A DEVELOPMENT AGREEMENT WHICH PROVIDED MTDC WITH POSS ESSION OF THE LAND AND THEREFORE SUCH A TRANSACTION WAS TO BE UNDERSTO OD AS A TRANSFER WITHIN THE MEANING OF SECTION 2(47)(V) OF THE ACT. IN SUP PORT, RELIANCE HAS BEEN PLACED ON THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SHRI CHATURBHUJ KAPADIA VS. CIT, 260 ITR 491 (BOM) AND O N THAT BASIS, IT IS SOUGHT TO BE POINTED OUT THAT ON EXECUTION OF THE DEVELOPM ENT AGREEMENT DATED 26.03.1999, THE CAPITAL GAIN WAS LIABLE TO BE TAXED . ON ASSESSEES OBJECTION THAT OTHER SIMILARLY PLACED ASSESSEES HAVE NOT BEEN SUBJECTED TO TAX FOR CAPITAL GAIN IN ASSESSMENT YEAR 1999-2000 AND THAT THE TAXATION OF CAPITAL GAINS HAVE BEEN ACCEPTED OVER THE YEARS, THE LD. DE PARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE SAME. AT T HIS POINT, WE MAY ALSO OBSERVE THAT THE DEPARTMENT WAS ALLOWED A SPECIFIC OPPORTUNITY TO CONTROVERT THE ASSERTIONS MADE BY THE ASSESSEE IN HIS AFFIDAVI T ON THE ASPECT OF THE TAXATION OF CAPITAL GAINS HAVING BEEN ACCEPTED IN T HE CASES OF OTHER SIMILARLY PLACED ASSESSEES DIFFERENTLY THAN WHAT IS SOUGHT TO BE TAXED IN THE HANDS OF THE ASSESSEE FOR ASSESSMENT YEAR 1999-2000. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE FACTUAL MATRIX WHICH HAS GIVEN RISE TO THE PRESENT CONTROVERSY HAS BEEN ELABORATELY NARRATED BY US IN THE EARLIER PARAS AND THE SAME IS NOT REPE ATED FOR THE SAKE OF BREVITY. ITA NO.769/PN/2010 THE POINT IN DISPUTE IS THE ACTION OF THE ASSESSING OFFICER IN SEEKING TO TAX CAPITAL GAIN IN THE HANDS OF THE ASSESSEE IN ASSESS MENT YEAR 1999-2000 ON ACCOUNT OF THE AGREEMENT WITH MTDC DATED 26.03.1999 AND, THAT TOO, BY ISSUANCE OF NOTICE U/S 147/148 OF THE ACT ON THE PR EMISE THAT CERTAIN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. A PERTIN ENT POINT HAS BEEN RAISED BY THE ASSESSEE WHEREBY THE CORRECTNESS OF THE ACTI ON OF THE ASSESSING OFFICER HAS BEEN CHALLENGED ON THE GROUND THAT IN T HE CASE OF OTHER SIMILARLY PLACED ASSESSEES, THE DEPARTMENT HAS ACCEPTED THE P OSITION SOUGHT TO BE CANVASSED BY THE ASSESSEE. FACTUALLY SPEAKING, THE CLAIM OF THE ASSESSEE IS THAT CAPITAL GAINS ARE NOT LIABLE TO BE TAXED IN AS SESSMENT YEAR 1999-2000 AND THAT THE SAME ARE TO BE TAXED OVER THE YEARS WHEN M TDC STARTED RECEIVING THE SALE PROCEEDS FROM THE CUSTOMERS AND IT INFORMED TH E ASSESSEE ABOUT HIS SHARE IN THE SAID PROCEEDS IN THE MANNER PROVIDED I N THE AGREEMENT DATED 26.03.1999. AVERMENTS IN THIS REGARD HAVE ALSO BEE N MADE BEFORE US IN THE FORM OF AN AFFIDAVIT. IN THE AFFIDAVIT, IT IS SOUG HT TO BE CANVASSED THAT EVEN IN SOME CASES, NOTICES U/S 148 OF THE ACT ON SIMILAR L INES FOR ASSESSMENT YEAR 1999-2000 WERE ISSUED BUT NO ASSESSMENTS WERE MADE THEREOF, INSTEAD ASSESSMENT OF CAPITAL GAINS WAS MADE OVER THE YEARS ON THE BASIS OF THE ENTITLEMENT CERTIFICATES ISSUED BY MTDC. THESE AVE RMENTS HAVE NOT BEEN CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE , EVEN AFTER HAVING BEING ALLOWED AN OPPORTUNITY TO DO SO. 15. IN THE AFORESAID BACKGROUND, THE RATIO OF THE L AW ENUNCIATED BY THE HONBLE SUPREME COURT IN THE CASES OF (I) UNION OF INDIA VS. KAUMUDINI NARAYAN DALAL, (2001) 249 ITR 219 (SC); (II) CIT VS . NARENDRA DOSHI, (2002) 254 ITR 606 (SC); AND, (III) CIT VS. SHIVSAGAR ESTA TE, (2002) 257 ITR 59 (SC) AND IN THE CASE OF BERGER PAINTS INDIA LTD. (SUPRA) CLEARLY APPLIES. NOTABLY, THE REVENUE HAS NOT DEMONSTRATED ANY REASON IN THE PRESENT CASES SO AS TO JUSTIFY DEPARTURE OF THE DEPARTMENT FROM ITS ACCEPT ED STAND IN SIMILARLY PLACED ITA NO.769/PN/2010 OTHER CASES WHERE CAPITAL GAINS IN PURSUANCE TO AGR EEMENT WITH MTDC DATED 26.03.1999 HAVE BEEN TAXED OVER THE YEARS AND NOT I N ASSESSMENT YEAR 1999- 2000. IT IS ALSO NOT DENIED THAT THE ASSESSEE HAS DECLARED CAPITAL GAINS IN THE RETURN FOR ASSESSMENT YEAR 2003-04 ONWARDS ON THE B ASIS OF THE ENTITLEMENT CERTIFICATES ISSUED BY MTDC IN TERMS OF THE AGREEME NT DATED 26.03.1999. IN- FACT, IN THE CASE TWO OF THE APPELLANTS BEFORE US, NAMELY, S/SHRI AMOL KRISHNA ASHTEKAR AND ATUL KRISHNA ASHTEKAR, THE ASSESSING O FFICER HAS MADE SCRUTINY ASSESSMENT FOR ASSESSMENT YEAR 2007-08 U/S 143(3) D ATED 17.12.2009 WHEREIN THE CAPITAL GAINS DECLARED BY THE ASSESSEE IN THE RETURNS OF INCOME HAVE BEEN ASSESSED. OSTENSIBLY, SUCH ASSESSMENTS, WHICH ARE IN LINE WITH THE STAND OF THE DEPARTMENT IN THE CASES OF OTHER F ARMERS WHO ARE SIMILARLY PLACED AS THE ASSESSEE, ITSELF SHOW THAT IN THE IMP UGNED PROCEEDINGS, REVENUE HAS DEPARTED FROM ITS ACCEPTED POSITION. T HERE IS NO JUSTIFICATION BROUGHT OUT BY THE REVENUE FOR SUCH A DEPARTURE. T HEREFORE, ON THE PRINCIPLE OF UNIFORMITY OF APPROACH WHICH IS REQUIRED TO BE A DOPTED BY THE REVENUE IN RELATION TO SIMILARLY PLACED ASSESSEES AS LAID DOWN BY THE HONBLE SUPREME COURT, IN OUR VIEW, THE ACTION OF THE INCOME-TAX AU THORITIES IN THE PRESENT CASE TO INITIATE PROCEEDING U/S 147/148 TO ASSESS CAPITA L GAINS ON THE BASIS OF THE AGREEMENT DATED 26.03.1999 WITH MTDC IS NOT JUSTIFI ED. 16. ON THE BASIS OF THE AFORESAID DISCUSSION, IN OU R VIEW, WE FIND NO REASONS TO UPHOLD THE ACTION OF THE LOWER AUTHORITI ES. BEFORE PARTING, WE MAY MAKE AN OBSERVATION THAT WE HAVE SET-ASIDE THE ACTI ON OF THE LOWER AUTHORITIES NOT ON THE MERITS OF THE CONTROVERSY BUT ON THE PRI NCIPLES OF CONSISTENCY AND UNIFORMITY WHICH ARE REQUIRED TO BE ADOPTED BY THE REVENUE IN THE CASE OF SIMILARLY PLACED ASSESSEES. ITA NO.769/PN/2010 17. IN THE RESULT, WE SET-ASIDE THE ORDER OF THE CI T(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION IN DISPUTE . THUS, ASSESSEE SUCCEEDS IN ITS APPEAL. 18. AS THE FACTS AND CIRCUMSTANCES IN ALL OTHER APP EALS ARE IDENTICAL OUR DECISION IN ITA NO.1063/PN/2013 IN THE CASE OF SHRI KRISHNA RAJARAM ASHTEKAR WOULD APPLY MUTATIS-MUTANDIS IN ALL OTHER APPEALS ALSO. 19. RESULTANTLY, ALL THE APPEALS OF THE ASSESSEE AR E ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2014. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 30 TH DECEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE