PEOPLES COSMOPOLITAN CHS LTD, MUMBAI V. DCIT 19(3), MUMBAI

ITA 1204/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71237 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T ROUMUAN PAITE
• Assessee Lawyers: K R LAXINARAYAN
• Keywords: Capital asset; Cost of acquisition

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . , / !' , # $ % BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 1204/MUM/2011 ' ' ' ' / ASSESSMENT YEAR 2000-01 PEOPLES COSMOPOLITAN CHS LTD., PLOT NO.121, TPS-III, TERESA ROAD, BANDRA (W), MUMBAI - 400 050. / VS. THE DCIT 19(3), AAYKAR BHAVAN, MK ROAD, MUMBAI 400012 ( # ./ )* ./ PAN/GIR NO. : AABTP 3039P ( (+ / APPELLANT ) .. ( ,-(+ / RESPONDENT ) APPELLANT BY SHRI K.R.LAXINARAYAN RESPONDENT BY : SHRI T.ROUMUAN PAITE . /# / DATE OF HEARING : 24/09//2013 01' . /# / DATE OF PRONOUNCEMENT : 24/09/2013 2 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A)-30 DATED 16/12/2010 FOR ASSESS MENT YEAR 2000-01. GROUNDS OF APPEAL READ AS UNDER: 1. THE ORDER PASSED BY THE LEARNED CIT (A) IS BAD IN LAW. 2. THE LEARNED CIT (A) ERRED IN HOLDING THAT THE CO MPENSATION RECEIVED BY THE APPELLANT CHS FROM THE DEVELOPER FOR TRANSFER OF DE VELOPMENT RIGHTS IS TAXABLE. 3. THE LEARNED CIT (A) ERRED IN NOT TAKING NOTE OF THE FOLLOWING MUMBAI ITAT . / ITA NO. 1204/MUM/2011 ' ' ' ' / ASSESSMENT YEAR 2001-02 2 DECISIONS IN SIMILARLY PLACED CASES HOLDING THAT SU CH COMPENSATION IS NOT TAXABLE. MAHESHWAR PRASAD 2 CHS V. ITO 118 ITD 323. AMBER CROFT CHS V. ITO ITA NO. 5697/M/2006 DT. 01-0 8-2009. ITO V NEW SHAILAJA CHS ITA NO. 512/M107 DT.02-12-20 08. ITO V. LOTIA COURT CHS 27 SOT 36 URO. 4. IT IS PRAYED THAT THE COMPENSATION RECEIVED BY T HE SOCIETY FROM THE DEVELOPER FOR THE TRANSFER OF DEVELOPMENT RIGHTS MAY BE HELD AS NON-TAXABLE IN THE LIGHT OF MUMBAI ITATS DECISIONS (SUPRA). 5. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTE R, AND / OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. 2. THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR SALE/TRANSFER OF TDR/FSI WITH AHUJA PLATINUM, THE DEVELOPER FOR A TO TAL CONSIDERATION OF RS.1,30,48,259/-. ACCORDING TO AO SUCH AMOUNT WAS ASSESSABLE AS CAPITAL GAIN ON ACCOUNT OF SALE OF TDR AND AFTER REDUCING T HE COST OF RS.2,59,000/- BALANCE AMOUNT OF RS.1,27,89,259/- WAS ASSESSED AS INCOME OF THE ASSESSEE. THE TREATMENT GIVEN BY AO HAS BEEN UPHELD BY LD. CI T(A). THE ASSESSEE IS AGGRIEVED AND HAS FILED AFOREMENTIONED APPEAL. 3. ON THE GIVEN FACTS IT IS THE CASE OF LD. AR THA T THIS ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT, MUMBAI IN THE CASE OF LAND BREEZE CO-OPERATIVE HOUSING SOCIETY LTD., VS. ITO ORDER DATED 14/9/2012 IN ITA NO.4130/MUM/2011 REPORTED AS (2012) 28 TAX AMN.COM 196 (MUM), WHEREIN IT HAS BEEN HELD THAT TDR ENTITLED IS SEPAR ATE AND DISTINCT FROM ORIGINAL RIGHT IN LAND AND, THEREFORE, INDEPENDENT CAPITAL ASSET. IT WAS FURTHER HELD THAT THERE BEING NO COST OF ACQUISITION IN ACQ UIRING TDR ENTITLEMENT, THEREFORE, THERE CANNOT BE ANY CAPITAL GAIN TAX L IABILITY. LD. AR HAS PLACED A COPY OF THE SAID DECISION ON OUR RECORD AND A COPY WAS GIVEN TO LD. DR. LD. AR HAS ALSO RELIED UPON THE FOLLOWING DECISIONS IN WHI CH SIMILAR PROPOSITION HAS BEEN UPHELD. 1. M/S. AMBER CROFT CO-OPERATIVE HOUSING SOCIETY L TD., VS. ITO, ORDER DATED 1/06/2009 IN ITA NO.5697/MUM/2006. 2. NEW SHAILAJA CHS VS. DCIT, ORDER DATED 02/12/2 008 IN ITA NO. . / ITA NO. 1204/MUM/2011 ' ' ' ' / ASSESSMENT YEAR 2001-02 3 512/MUM/2007. 3. RAJ RATAN PALACE CO. OP. HOUSING SOCIETY LTD. VS . DCIT, ORDER DATED 25/02/2011 IN ITA NO. 674/MUM/2004 4. ITO VS. SHRI RAM KUMAR MALHOTRA, ORDER DATED 14 /05/2010 IN ITA NO. 4843/MUM/2009 5. MAHESHWAR PRAKASH -2 CO-OP. HOUSING SOCIETY LTD. VS. ITO, ORDER DATED 15/5/2008 IN ITA NO.34/MUM/2008 6. JETHALAL D. MEHTA VS. DCIT ORDER DATED 27/1/200 5 IN ITA NO. 672/MUM/2000. 7. OM SHANTI CO-OPERATIVE SOCIETY LTD. VS. ITO ORDE R DATED 28/8/2009 IN ITA NO.2550/MUM/2008 4. THIS APPEAL WAS FIXED ON 23/9/2013 AND IT WAS TH E CONTENTION OF THE LD. AR THAT THE ISSUE IS COVERED AND COPIES OF AFOREME NTIONED ORDERS WERE GIVEN TO LD. DR WHO REQUEST FOR A SHORT ADJOURNMENT. ACCORD INGLY THE MATTER KEPT FOR HEARING ON 24/9/2012. ON 24/09/2013 LD. DR SUBMITT ED THAT THOUGH THE ISSUE IS COVERED IN FAVOUR OF ASSESSEE BY THE AFOR EMENTIONED DECISIONS, BUT HE RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. AFTER HEARING BOTH THE PARTIES, RESPECTFULLY FOL LOWING THE AFOREMENTIONED DECISIONS WE DECIDE THIS ISSUE IN FAVOUR OF ASSESSE E AND THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24/09/2013 2 . 01' # 3 45 24 /09/2013 1 . 6 % SD/- SD /- ( !' / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) # / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 4 DATED 24 /09/2013 . / ITA NO. 1204/MUM/2011 ' ' ' ' / ASSESSMENT YEAR 2001-02 4 2 2 2 2 . .. . ,/78 ,/78 ,/78 ,/78 98'/ 98'/ 98'/ 98'/ / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. 8;6 ,/ , , / DR, ITAT, MUMBAI 6. 6< = / GUARD FILE. 2 2 2 2 / BY ORDER, -8/ ,/ //TRUE COPY// > >> > / ? ? ? ? ) ) ) ) (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS