Amit Kumar Tyagi, Ghaziabad V. DECI, Circle-1, Ghaziabad

ITA 1152/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9603 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 16-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Assessee Lawyers: P P SINGH
• Keywords: Capital asset; Gift; Capital Gains
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1152/DEL/2018 : ASSTT. YEAR: 2014-15 SH. AMIT KUMAR TYAGI, 113, BONJHA DIWAN, KUTI, GHAZIABAD, U.P. VS DCIT, CIRCLE-1, GHAZIABAD (APPELLANT ) (RESPONDENT) PAN NO. A CZPT0160F ASSESSEE BY : SH. P. P. SINGH, CA REVENUE BY : SH. SATPAL GULATI, CIT DR DATE OF HEAR ING: 1 4 . 07 .20 21 DATE OF PRONOUNCEMENT: 14 .0 7 .20 2 1 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS OF LD. CIT (A), GHAZIABAD DATED 25.10.20 17. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) ERRED IN LAW AND FACTS BY WAY O F CONFIRMING THE ADDITION OF RS. 12,99,95,547/-AS CAPITAL GAIN. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 12,99,95,547/- MADE BY THE AO ON ACCOUNT OF CAPITAL GAIN TO THE RETURNED INCOME OF RS 15,47,110/- WITHOUT CONSIDERING THE CONDITIONAL SALE DEED OF PROPERTY AND IGNORING THE FACTS OF DISPUTED MATTERS . ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) HAS ERRED IN CONSIDERING THE FACT THAT TRANSACTION OF SALE OF LAND WAS NEVER COMPLETED AND BECOME NULL AND VOID DUE TO THE CHEQUE DISHONORED, A PREDETERMINED CONDITION FOR EXECUTION OF SALE DEE D. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) HAS FURTHER ERRED IN SUMMARILY IGNORING TH E CONTEMPORARY & CONCLUSIVE EVIDENCE FILED BEFORE HIM AND REJECTED THEM WITHOUT GIVING ANY PROPER REASONING FOR THE SAME. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL) HAS ERRED IN IGNORING THE SETTLED PRINCIPL ES OF TAXING REAL INCOME AS LAID DOWN BY THE HONBLE SUPREME COURT IN VARIOUS PRONOUNCEMENTS. 3. THE ASSESSEE HAS FILED E-RETURN OF INCOME ON 31. 08.2015 DECLARING TOTAL INCOME OF RS.15,47,110/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961. SUBSEQUENTL Y, THE CASE WAS SELECTED FOR SCRUTINY THROUGH CASS AND THE ISSU E OF CAPITAL GAINS HAS BEEN EXAMINED. 4. BACKGROUND OF THE TRANSACTION: FATHER OF THE ASS ESSEE SH. ASHOK TYAGI HAS PURCHASED LAND LOCATED AT KHASRA NO . 962, NOOR NAGAR, GHAZIABAD, UP FOR RS.3,18,835/- IN JOI NT OWNERSHIP WITH ONE MRS. KAMLESH AND THE ASSESSEE. AS PER PUR CHASE DEED SHARE OF THE ASSESSEE WAS 50% OF THE TOTAL LAND AND OUT OF WHICH ASSESSEE HAD EXECUTED SALE DEED FOR 50% OF HI S SHARE ON 4 TH OF SEPTEMBER 2013 WITH M/S GOEL FLEXIBLE PACKAGING PVT. LTD. FOR A CONSIDERATION OF RS.13,15,00,000/- IN WH ICH THE CHEQUES AMOUNTING TO RS.10 CRORE WERE POST DATED WH ICH MUST BE HONOURED BY THE PROPOSED BUYER. BUT LATER, OUT O F PDC OF RS.10 CRORE ONLY ONE CHEQUE OF RS.2 CRORE HONOURED AND FOUR ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 3 CHEQUES OF REMAINING AMOUNT OF RS.8 CRORE WERE DIS- HONOURED. IN THE SALE DEED, THERE WAS CONDITION THAT IN CASE OF DIS- HONOURED OF CHEQUE, THE SALE DEED SHALL BECOME NULL AND VOID AUTOMATICALLY WITHOUT ANY ACTION AND SHALL BE DEEME D TO BE NULL AND VOID. THE ASSESSEE RETAINED THE POSSESSION OF T HE LAND TILL DATE AND PROCEEDINGS SUBJECT TO COURT MATTERS BY WA Y OF SUITS FILED UNDER NEGOTIABLE INSTRUMENT ACT IN THE KAKARD OOMA COURT, DELHI AS WELL AS IN THE DELHI HIGH COURT AT THE TIM E OF PROCEEDINGS BEFORE REVENUE AUTHORITIES. 5. AS PER THE ASSESSEE, THE TRANSACTION BETWEEN THE ASSESSEE AND BUYER M/S GOEL FLEXIBLE PACKAGING PVT. LTD. THR OUGH SALE DEED WAS CONDITIONAL AND THE SAME CAN BE TREATED AS SALE OF LAND IF AND ONLY IF CONDITION TO BE FULFILLED MENTI ONED IN THE SALE DEED MUST BE HONOURED BY THE PROPOSED BUYER AND CON SIDERING THESE FACTS THE TRANSACTION SHOULD BE TREATED AS AG REEMENT TO SALE UNLESS THE BUYER SATISFY CONDITIONS MENTIONED IN THE SALE DEED. 6. SINCE, THE CHEQUE ISSUED OF RS.8 CRORE WERE DIS- HONOURED AND CONDITIONS INBUILT IN THE SALE DEED NOT FULFILL ED IN TOTALITY BY THE BUYER THEREFORE THE TRANSACTION COULD NOT BE TR EATED AS SALE OF THE LAND. 7. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENT ION OF THE ASSESSEE AND BROUGHT AMOUNT AS PER THE SALE DEED TO THE CAPITAL GAIN TAX. THE REVENUE HELD THAT THE RECEIPT OF THE MONEY IS IMMATERIAL ONCE THE SALE DEED HAS BEEN DULY EXEC UTED BEFORE THE PRESCRIBED AUTHORITIES. THE REVENUE RELIED ON T HE BARE PROVISIONS OF THE ACT AND HELD THAT THERE WAS NO EV IDENCE OF DIS- HONOUR OF THE CHEQUE PRESENTED BEFORE THE REVENUE A UTHORITIES. ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 4 BEFORE US, DURING THE ARGUMENT, THE ASSESSEE HAS SU BMITTED THE ORDER OF THE HONBLE HIGH COURT IN THE CASE OF THE ASSESSEE IN CS(OS) 229/2016 & IA NO. 4931/2019 VIDE ORDER DATED 22.01.2020. THE ENTIRE ORDER OF THE HONBLE HIGH CO URT IS REPRODUCED HEREUNDER FOR READY REFERENCE: 1. THE PLAINTIFF INSTITUTED THIS SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908 (CPC) AGAINST DEFENDANTS NO.1 TO 5, NAMELY (I) GOEL FLEXIBLE PACK AGING PVT. LTD., (II) UMESH GOEL, (III) BRIJESH GOEL, (IV ) SUDESH GOEL AND (V) SHRI KRISHNAN GOEL, FOR RECOVERY OF RS .8 CRORES WITH INTEREST, PLEADING (A) THAT THE DEFENDA NTS PURCHASED PLOT MEASURING 4190 SQ. MTRS. HAVING KHAS RA NO.962, SITUATED AT VILLAGE-NOOR NAGAR, LONI, GHAZI ABAD, U.P. FOR A SUM OF RS.13,15,00,000/- AND A SALE DEED WAS EXECUTED BETWEEN THE PLAINTIFF AND THE DEFENDANT NO .2 TO THIS EFFECT ON 4TH SEPTEMBER, 2013; (B) THAT FOR PA YMENT OF SALE CONSIDERATION, THE DEFENDANTS ISSUED POST-D ATED CHEQUES/DEMAND DRAFTS TO THE PLAINTIFF; (C) THAT FO UR CHEQUES, ALL DATED 7TH JULY, 2014 OF RS.2 CRORES EA CH WHEN PRESENTED, WERE RETURNED UNPAID OWING TO INSUFFICIE NCY OF FUNDS IN THE ACCOUNT ON WHICH THE SAME WERE ISSUED; AND, (D) THAT THE DEFENDANTS HAD FAILED TO PAY THE SAID AMOUNT INSPITE OF REPEATED REQUESTS. 2. THE SUIT CAME UP FIRST BEFORE THIS COURT ON 11TH MAY, 2016 AND THEREAFTER ON 2ND JUNE, 2016, 25TH JULY, 2 016 AND FINALLY VIDE ORDER DATED 5TH AUGUST, 2016 SUMMO NS FOR APPEARANCE WERE ORDERED TO BE ISSUED. 3. VIDE ORDER DATED 14TH DECEMBER, 2017, LEAVE TO D EFEND WAS GRANTED TO THE DEFENDANTS. 4. THE DEFENDANTS, BESIDES FILING THE WRITTEN STATE MENT, HAVE ALSO FILED A COUNTER-CLAIM FOR RECOVERY OF RS. 2 CRORES PAID TO THE PLAINTIFF AS PART SALE CONSIDERATION AN D THE PLEADINGS IN THE SUIT AND THE COUNTER-CLAIM HAVE BE EN COMPLETED. 5. THE DEFENDANTS FILED IA NO.4931/2019 UNDER ORDER XII RULE 6 OF THE CPC ON WHICH ALSO THE PLEADINGS WERE COMPLETED. 6. THE AFORESAID APPLICATION BEING IA NO.4931/2019 WAS LISTED YESTERDAY FOR HEARING. MR. M.S. RAHMAN, ADVO CATE ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 5 FOR THE PLAINTIFF APPEARED ON FIRST CALL; PASSOVER AT THAT TIME WAS SOUGHT ON BEHALF OF THE DEFENDANTS. 7. FINDING THAT IT WAS THE PLEA OF THE DEFENDANTS I N IA NO.4931/2019 UNDER ORDER XII RULE 6 OF THE CPC THAT , (I) IT WAS EXPRESSLY MENTIONED IN THE SALE DEED, THAT I F THE POST-DATED CHEQUES FOR BALANCE SALE CONSIDERATION W ERE NOT HONOURED ON PRESENTATION, THE SALE DEED SHALL B E TREATED AS CANCELLED; (II) THE PLAINTIFF HAS CONCEA LED THE FACTUM OF HAVING FILED CIVIL SUIT NO.770/2016 IN TH E COURT OF CIVIL JUDGE, GHAZIABAD, FOR THE RELIEF OF DECLAR ATION THAT THE SALE DEED BEING WITHOUT PAYMENT OF CONSIDERATIO N WAS NULL AND VOID AND OF NO EFFECT, IT WAS YESTERDAY EN QUIRED FROM THE COUNSEL FOR THE PLAINTIFF, THAT ONCE IT WA S SO, WHAT WAS THE ENTITLEMENT OF THE PLAINTIFF TO THE RE LIEF OF RECOVERY OF RS.8 CRORES SOUGHT. 8. THE COUNSEL FOR THE PLAINTIFF, YESTERDAY STATED THAT GHAZIABAD SUIT WAS ONLY FOR THE RELIEF OF INJUNCTIO N AND NOT FOR THE RELIEF OF DECLARATION AS NULL AND VOID OF T HE SALE DEED. 9. HOWEVER THE DEFENDANTS, ALONG WITH THE APPLICATI ON UNDER ORDER XII RULE 6 OF THE CPC HAVE FILED A COPY OF THE PLAINT IN THE GHAZIABAD SUIT IN HINDI LANGUAGE AND A READING WHEREOF SHOWED THE RELIEF CLAIMED THEREIN T O BE OF DECLARATION AS NULL AND VOID OF THE SALE DEED. 10. HOWEVER YESTERDAY THE COUNSEL FOR THE PLAINTIFF KEPT ON DENYING THAT THE SUIT WAS FOR THE RELIEF OF DECLARA TION. OWING TO THE COUNSEL FOR THE DEFENDANTS BEING NOT AVAILABLE ON FIRST CALL, THE MATTER WAS PASSED OVER . 11. ON PASSOVER, THE COUNSEL FOR THE DEFENDANTS APP EARED BUT THE COUNSEL FOR THE PLAINTIFF DID NOT APPEAR IN SPITE OF THE COURT WAITING FOR HIM FOR A CONSIDERABLE TIME A ND AS RECORDED IN YESTERDAYS ORDER. IT WAS ENQUIRED FROM THE COUNSEL FOR THE DEFENDANTS YESTERDAY, WHETHER THE DEFENDANTS WERE WILLING TO DISCLAIM ALL RIGHTS IN T HE LAND AND TO DELIVER POSSESSION THEREOF BACK TO THE PLAIN TIFF. 12. THE COUNSEL FOR THE DEFENDANTS STATED THAT THE DEFENDANTS WERE SO WILLING. 13. HOWEVER ADVERSE ORDERS AGAINST THE PLAINTIFF WE RE DEFERRED YESTERDAY AND THE MATTER POSTED FOR TODAY. 14. TODAY, MR. M.S. RAHMAN, ADVOCATE HAS AGAIN APPE ARED FOR THE PLAINTIFF AND STATES THAT HE DID NOT KNOW A BOUT THE ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 6 GHAZIABAD SUIT AND HAS LEARNT OF IT ONLY FROM THE APPLICATION UNDER ORDER XII RULE 6 OF CPC FILED BY THE DEFENDANTS AND HAS CALLED THE PLAINTIFF TO THE COUR T AND IDENTIFIES ONE PERSON PRESENT IN THE COURT AS PLAIN TIFF. 15. THE PLAINTIFF PRESENT IN COURT, ON ENQUIRY IN V ERNACULAR STATES THAT ON DELIVERY OF POSSESSION, HE IS WILLIN G TO REFUND RS.2 CRORES TO THE DEFENDANTS. 16. I HAVE PERUSED THE ENGLISH TRANSLATION OF THE S ALE DEED IN HINDI LANGUAGE, FILED BY THE PLAINTIFF HIMS ELF. THE SAME INTER ALIA PROVIDES AS UNDER: THE ACTUAL, COMPLETE AND OWNERSHIP POSSESSION HAS BEEN HANDED OVER TO THE VENDEE ON THE LAND UNDER SA LE. IF THE CHEQUE OF THE ABOVE AMOUNT WILL CANCEL/REJEC T, THEN THE SALE LETTER WILL BE CONSIDERED AUTOMATICAL LY CANCELLED/REJECTED. NOW IT IS UP TO THE VENDEE TO U SE THE LAND AS PER HIS WISHES, SELL THE SAME, MAKE DEA L TO SELL THE SAME, PASS THE MAP OF LAND, MAKE CONSTRUCT ION, RECEIVE LOAN FROM ANY BANK, THE VENDOR WILL GLADLY PUT HIS SIGNATURE WHERE THE REQUIREMENT OF SIGNATURE AN D CONSENT IS NEEDED, HE WILL NOT HAVE ANY OBJECTION. 17. SECTION 55(4)(B) OF THE TRANSFER OF PROPERTY AC T, 1882 PROVIDES, THAT IN THE ABSENCE OF A CONTRACT TO THE CONTRARY, THE SELLER IS ENTITLED, WHERE OWNERSHIP OF THE PROP ERTY HAS PASSED TO THE BUYER BEFORE PAYMENT OF WHOLE OF PURC HASE MONEY, TO A CHARGE UPON THE PROPERTY IN THE HANDS O F THE BUYER, FROM THE DATE THE POSSESSION IS DELIVERED. T HE SAME INDICATES THAT, MERELY BECAUSE A REGISTERED SA LE DEED IS EXECUTED, DOES NOT MEAN THAT THE OWNERSHIP OF THE PROPERTY HAS PASSED FROM THE SELLER TO THE BUYER AN D THE PARTIES, IN THE SALE DEED, MAY PROVIDE OTHERWISE AN D IN WHICH CASE THE AGREEMENT BETWEEN THE PARTIES WILL P REVAIL. HERE, THE PARTIES ARE FOUND TO HAVE PROVIDED OTHERW ISE. HERE, THE PARTIES HAVE MADE THE SALE CONTINGENT ON THE ENCASHMENT OF THE CHEQUE FOR SALE CONSIDERATION. CH APTER III OF THE CONTRACT ACT, 1872 ALSO PROVIDES FOR CON TRACTS TO BE CONTINGENT. THUS, THE OWNERSHIP OF THE PROPERTY WAS TO PASS FROM THE PLAINTIFF AS SELLER TO THE DEFENDANTS AS BUYER, NOT MERELY BY REGISTERING OF SALE DEED, BUT BY ENCASHMENT OF CHEQUE GIVEN BY DEFENDANTS TO PLAINTI FF FOR SALE CONSIDERATION AND WHICH CONTINGENCY, ADMITTEDL Y HAS NOT OCCURRED. THE PLAINTIFF, ON SUCH CONTINGENCY, H AD OPTION TO EITHER SUE FOR SPECIFIC PERFORMANCE OF AG REEMENT TO SELL EVIDENCED BY SALE DEED OR FOR RECOVERY OF D AMAGES IF ANY SUFFERED BY BREACH ON PART OF DEFENDANTS. TH E PLAINTIFF, BY INSTITUTING THE SUIT AT GHAZIABAD, FO R ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 7 DECLARATION AS NULL AND VOID, OF THE SALE DEED, HAS OPTED TO TREAT THE SALE DEED AS NON-EXISTENT AND CANNOT AT T HE SAME TIME MAINTAIN THIS SUIT, IN EXERCISE OF RIGHTS UNDER SECTION 55(4)(B) SUPRA, TREATING THE SALE DEED AS E XISTENT AND HAVING CONVEYED/TRANSFERRED OWNERSHIP OF THE PROPERTY TO THE DEFENDANTS. SUPREME COURT IN KHELA BANERJEE VS. CITY MONTESSORI SCHOOL (2012) 7 SCC 26 1, THOUGH CONCERNED WITH A LEASE AGREEMENT (AND NOT A SALE DEED) EXECUTED UPON CONDITION THAT IN CASE OF FAILU RE TO DEPOSIT INSTALMENTS WITHIN PRESCRIBED TIME LIMIT, T HE DEED OF AGREEMENT WOULD BECOME VOID, HELD THAT THE AGREE MENT WOULD BECOME VOID AND TRANSFEROR/ LESSOR SHALL BE F REE TO SELL PLOT TO ANY THIRD PARTY SINCE NON-PAYMENT REND ERED THE AGREEMENT AUTOMATICALLY VOID. RECENTLY IN S. SA ROJINI AMMA VS. VELAYUDHAN PILLAI SREEKUMAR (2019) 11 SCC 391 ALSO, IN THE CONTEXT OF A CONDITIONAL GIFT IT WAS H ELD THAT A CONDITIONAL GIFT ONLY BECOMES COMPLETE ON COMPLIANC E OF CONDITIONS IN THE DEED AND WHEN A GIFT IS INCOMPLET E, THE TITLE REMAINS WITH THE DONOR AND THE GIFT DEED MIGH T BE CANCELLED. REFERENCE MAY ALSO BE MADE TO KALIAPERUM AL VS. RAJAGOPAL (2009) 4 SCC 193 AND SURINDER PAL VS. RAINBOW PROMOTERS PVT. LTD. 2010 SCC ONLINE P&H 936 6. 18. I HAVE ENQUIRED FROM THE COUNSEL FOR THE DEFEND ANTS, WHETHER THE DEFENDANTS HAVE DEALT WITH THE PROPERTY IN ANY MANNER WHATSOEVER TO THE DETRIMENT OF THE PLAIN TIFF AND/OR HAVE MORTGAGED THE SAME OR CREATED ANY THIRD PARTY RIGHTS IN THE SAME. 19. THE COUNSEL FOR THE DEFENDANTS STATES THAT THE DEFENDANTS HAVE NOT DONE ANY SUCH THING. 20. THE DEFENDANTS ARE BOUND BY THE AFORESAID STATE MENT AND WHICH, IF FOUND TO BE ERRONEOUS, SHALL MAKE THE DEFENDANTS LIABLE FOR CONTEMPT OF THE COURT. 21. THE COUNSEL FOR THE DEFENDANTS ALSO STATES THAT THE DEFENDANTS WILL AGREE TO THE DECLARATION AS NULL AN D VOID OF THE SALE DEED BEFORE THE GHAZIABAD COURT OR BEFORE ANY OTHER FORUM AND SHALL, IN FURTHERANCE THERETO, DO A LL OTHER THINGS, AS THE DEFENDANTS MAY BE REQUIRED TO DO AND IF THE PROPERTY HAS BEEN MUTATED FROM THE NAME OF THE PLAI NTIFF TO THE NAME OF THE DEFENDANTS, SHALL ALSO HAVE THE MUTATION REVERSED. 22. RESULTANTLY, THE SUIT FILED BY THE PLAINTIFF, B EING CS(OS) NO.229/2016, FOR RECOVERY OF RS.8 CRORES FRO M THE DEFENDANTS, IS FOUND TO BE MISCONCEIVED AND IS DISM ISSED. 23. DECREE SHEET BE PREPARED. ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 8 24. THE COUNSEL FOR THE DEFENDANTS FURTHER STATES T HAT THE ORIGINAL SALE DEED SHALL BE HANDED OVER BY THE DEFE NDANTS TO THE PLAINTIFF. 25. THE COUNTER-CLAIM OF THE DEFENDANTS IS ENTITLED TO SUCCEED FOR RECOVERY OF RS.2 CRORES FROM THE PLAINT IFF. THOUGH THE PLAINTIFF COULD HAVE CLAIMED COMPENSATIO N FOR BREACH OF CONTRACT FROM THE DEFENDANTS, BUT HAS NOT DONE SO. HOWEVER, THE CLAIM OF THE DEFENDANTS FOR INTERE ST IS NOT FOUND TO BE JUSTIFIED IN LAW, INASMUCH AS, IT I S THE DEFENDANTS WHO HAVE RENEGED FROM THE TRANSACTION AN D HAVE ALSO BEEN IN POSSESSION OF THE PROPERTY TILL N OW. THUS, THE DEFENDANTS ARE FOUND ENTITLED TO INTEREST ON RS.2 CRORES ONLY FOR FUTURE, AFTER 60 DAYS FROM THE DECR EE. 26. A DECREE IS ACCORDINGLY PASSED, IN FAVOUR OF TH E DEFENDANT NO.1, WHO ALONE IS THE PURCHASER UNDER TH E SALE DEED, AND AGAINST THE PLAINTIFF, FOR RECOVERY OF RS .2 CRORES WITH INTEREST @ 10% PER ANNUM AFTER 60 DAYS OF THIS ORDER, TILL PAYMENT/RECOVERY. 8. FROM THE ORDER, IT CAN BE DECIPHERED THAT THE EN TIRE TRANSACTION HAS BEEN RECALLED, THE SALE DEED HAS BE EN MADE NULL AND VOID AND THE ASSESSEE HAS BEEN ALSO DIRECTED TO REFUND THE AMOUNT RECEIVED FROM M/S GOEL FLEXIBLE PACKAGING PV T. LTD. IT IS ALSO THE FACT THAT THE ASSET IN SALE IS STILL IN TH E POSSESSION OF THE ASSESSEE. 9. ON GOING THROUGH THE ENTIRE FACTUM OF THE ISSUE, WE HOLD THAT THE DECISION OF THE REVENUE WAS BASED ON THE E VIDENCES BEFORE THEM AND SINCE THE MATTER HAS BEEN SETTLED F INALLY BY THE ORDER OF THE HONBLE HIGH COURT, AT THIS JUNCTURE, WE HAVE NO HESITATION TO HOLD THAT NO CAPITAL GAINS ARE TAXABL E IN THE HANDS OF THE ASSESSEE AS THERE WAS NEITHER TRANSFER OF AN Y CAPITAL ASSET NOR ABSOLUTE RECEIPT OF ANY AMOUNT. ITA NO. 1152/DEL/2018 AMIT KUMAR TYAGI 9 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/07/2021. SD/- SD/- (AMIT SHUKLA) ( DR. B. R. R. KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATED: 14/07/2021 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR