ITO 6(2)(4), MUMBAI V. ASHOK A PATEL, MUMBAI

ITA 1231/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2099 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Capital receipt
• Section: 50C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.1231/MUM/2013 ASSESSMENT YEAR: 2009-10 ITO-6(2)(4), R. NO.513, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. SHRI ASHOK A. PATEL, A-2, MANI BAHAVAN, GR. FLOOR, 45, SWASTIK SOCIETY, N.S. ROAD NO.3 JVPD SCHEME, VILE PARLE (WEST), MUMBAI-400056 ( / REVENUE) ( ! ' /ASSESSEE) PAN. NO. AADPP2194D / REVENUE BY SHRI ASGHAR ZAIN ! ' / ASSESSEE BY SHRI VIPUL JOSHI # $ % ' & / DATE OF HEARING : 30/11/2015 % ' & / DATE OF ORDER: 01/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 30/11/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO D ELETING THE ADDITION OF RS.52,32,667/- MADE U/S 50C OF THE INCO ME TAX ACT, 1961 (HEREINAFTER THE ACT) TOWARDS LONG TERM C APITAL GAIN ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 2 WITHOUT APPRECIATING THE FACT THAT THE TRANSFER OF DEVELOPMENT RIGHT TOOK PLACE IN THE COURSE OF ASS ESSMENT YEAR AS PER SECTION 2(47)(V) R.W.S. 53A OF THE TRAN SFER OF PROPERTY ACT, THUS, THE PROVISION OF SECTION 50C OF THE ACT IS APPLICABLE TO THE CASE OF THE ASSESSEE. 2. DURING HEARING OF THIS APPEAL, AT THE OUTSET, S HRI VIPUL JOSHI, LD. COUNSEL FOR THE ASSESSEE, CLAIMED THAT THE IMPUGNED ISSUE IS COVERED BY THE DECISION FROM HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SAM BHAJI NAGAR COOPERATIVE HOUSING SOCIETY LTD. (2015) 370 I TR 325 (BOM.) AND FURTHER THE DECISION OF THE TRIBUNAL IN ITO VS M/S LOTIA COURT COOPERATING HOUSING SOCIETY LTD. (2008) 118 TTJ 199 (MUM.) AND ACIT VS SHRI ISHWARLAL MOHANDAS KANA KIYA (ITA NO.3053 AND 2650/MUM/2010) ORDER DATED 08/02/2012. THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY THE LD. DR, SHRI ASGHAR ZAIN, THOUGH HE DEFENDED THE CO NCLUSION ARRIVED AT IN THE ASSESSMENT ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE C OMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT FINDING RECORDED IN THE IMPUGNED ORDER:- 4. I HAVE CAREFULLY CONSIDERED THE ISSUE CONCERNE D. IT IS SEEN THAT IN THIS CASE RELYING ON THE JUDICIAL PRONOUNCEMENTS ON WHICH THE APPELLANT HAS RELIED UPON THE CONTENTION HAS RAISED BY THE APPELLANT THAT NO CAPITAL GAINS WOULD ARISE IN ITS CASE WOULD NEED TO BE ACCEPTED AS THE APPELLANT'S CASE IS SQUARELY COVERE D BY THEM ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 3 ESPECIALLY THAT OF DEEPAK S. SHAH VS ITO (ITA NO.14 83/MUM/2001, ORDER DATED 16/6/2008, MUMBAI ITAT). IN THAT CASE O F DEEPAK S. SHAH AS STATED EARLIER ON IN THIS ORDER THE HON'BLE COURT HAS CLEARLY STATED THAT WHERE THE OWNER OF THE PROPERTY ALLOWS THE DEVELOPER WHO WAS IN POSSESSION OF TDR TO UTILISE THE SAID TD R ON ITS PROPERTY FOR CERTAIN CONSIDERATION, THERE IS NO TRANSFER OF CAPITAL ASSET AND SECTION 45 IS NOT ATTRACTED IN SUCH A CASE. THE HON 'BLE COURT HAS FURTHER STATED IN THIS CASE AS UNDER:- 'THE DEFINITION OF CAPITAL ASSET GIVEN IN SECTION 2 (14) IS FOR THE PURPOSE OF THE ENTIRE ACT AND NOT FOR THE PURPOSE O F CAPITAL GAINS ONLY ALTHOUGH A PARTICULAR THING, RIGHT OR INTEREST MAY BE A CAPITAL ASSET WITHIN MEANING OF SECTION 2(14), YET TRANSACTION IN RELATION THERETO MAY NOT GIVE RAISE TO TAXABLE CAPITAL GAINS, THIS W OULD BECAUSE OF THE FACT THAT NO TRANSFER AS ENVISAGED BY THE ACT WAS I NVOLVED. SIMILARLY CERTAIN CAPITAL ASSET WHICH COULD NOT GIVE RISE TO CAPITAL GAIN BECAUSE OF THE FACT THAT NO' COST OF ACQUISITION CAN BE ENV ISAGED IN THE ACQUISITION OF THAT ASSET. WITH THIS BACK GROUND OF DISCUSSION, NOW WE CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION. WE FIND THAT NEITHER THE ASSESSEE NOR THE SOCIETY WAS IN A POSSE SSION OF ANY TDR. THE BUILDER WAS IN POSSESSION OF TDR. THE CIT(A) CL EARLY NOTED THE FACT THAT THE SOCIETY OR THE MEMBERS HAD NOT TECHNI CALLY TRANSFERRED TDR IN THE SENSE OF LEGAL AUTHORIZATION. THUS NEITH ER THE SOCIETY NOR THE MEMBERS OWNED OR POSSESSED ANY TRANSFERABLE DEV ELOPMENT RIGHT. THE TRANSFERABLE DEVELOPMENT RIGHTS WERE OWNED AND POSSESSED BY THE BUILDER AND IN TERMS OF THE REGULATIONS FRAMED BY M UNICIPAL CORPORATION, II WAS PERMISSIBLE FOR THE BUILDING TO UTILIZE THE SAID TRANSFERABLE DEVELOPMENT RIGHTS IN OR WITH RESPECT TO THE PRESCRIBED AREA INCLUDING THE LAND AND BUILDING OWNED BY THE S OCIETY. THE MEMBERS OF THE SOCIETY HAD CONSENTED TO SUFFER THE HARDSHIPS AND IN TERMS OF THE REGULATIONS OF THE SOCIETY OR OTHERWIS E OR IN LAW THE MEMBERS DID NOT HAVE ANY SAY IN THE MATTER ONCE THE SOCIETY DECIDED TO GIVE ITS CONSENT. THE MEMBERS OF THE SOCIETY HAD PAID FOR THE PURCHASE OF THE FLAT, WHICH CONFERS VERY LIMITED RI GHTS IN TERMS OF THE REGULATIONS OF THE SOCIETY AND 'RIGHT TO GRANT PERM ISSION FOR ADDITIONAL CONSTRUCTION', AS SUCH DOES NOT FORM PART OF ANY RI GHTS; BUT IT ARISES ON ACCOUNT OF THE VOLITION OR VOLUNTARY DESIRE OF A PE RSON. SUCH PERMISSION CANNOT BE OBTAINED BY ENFORCING ANY RIGH TS OR OBLIGATION ARISING FROM THE AGREEMENT TO PURCHASE THE FLAT END /OR THE REGULATIONS OF THE SOCIO!'. ACCORDINGLY, THE VOLUNTARY- CONSENT GIVEN CANNOT CONSTITUTE OR FORM PAN OF THE BUNDLE OF RIGHTS WHIC H ARE OWNED OR POSSESSED BY THE MEMBER IN OR WITH RESPECT TO THE T ENURE OF THE FLAT ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 4 GRANTED TO THE MEMBER BY THE SOCIETY. THE AREA OCCU PIED BY THE MEMBERS WAS ONLY A 'MEASURE' IN QUANTITATIVE TERMS INASMUCH AS THE EXTENT OF HARDSHIP WHICH MAY BE FACED CANNOT BE QUA NTIFIED; WHEN AN ADDITIONAL CONSTRUCTION IS MADE, THE LOCATION OF TH E FLAT, AS SUCH, IS OF NO SIGNIFICANCE OR IMPORTANCE, SINCE EVERYONE SUFFE RS THE HARDSHIP AND THE EXTENT CANNOT BE DETERMINED THROUGH ANY 'ME ASURE'. THE MEMBERS HAD NOT TRANSFERRED ANY RIGHTS IN OR WITH R ESPECT TO THE FLAT OR COMPROMISED ANY RIGHTS IN OR WITH RESPECT TO THE FLAT OR SUFFERED ANY DEFICIENCY OR LIMITATION IN OR WITH RESPECT TO THE RIGHTS IN THE FLAT IN FACT THEY HAD ADDED THE RISK OF ADDING LOAD TO T HE BUILDING. ACCORDINGLY, THE COST OF FLAT CANNOT BE ANY MEASURE FOR THE PURPOSE OF FINDING OUT THE COST OF THE ALLEGED 'CAPITAL ASSET' AND THE ALLEGED 'TRANSFER' OF SUCH ASSET. 14. WE FIND THAT THE ASSESSEE WAS NEITHER HOLDING A NY CAPITAL ASSET NOR THE SAME HAS BEEN SOLD, EXCHANGE OR RELINQUISH OF T HE ASSETS. IN OTHER WORDS THERE IS NO TRANSFER OF CAPITAL ASSET IN ACCO RDANCE WITH 1. T. ACE WE THEREFORE ARE OF THE CONSIDERED VIEW THAT SE CTION 45 OF THE 1. T. ACT IS NOT ATTRACTED IN THE LIGHT OF THE ABOVE D ISCUSSION. WE HOLD THAT THE ASSESSEE IS NOT LIABLE TO CAPITAL GAIN UND ER SECTION 45 OF THE I.T. ACT.' 4.1 IT IS ALSO SEEN THAT THE OBSERVATIONS OF THE HO N'BLE COURTS IN THE CASES THAT HAS BEEN REPLIED UPON BY THE APPELLANT C LEARLY FAVOUR AND SUPPORT THE CONTENTION OF THE APPELLANT. IN THE CAS E OF JETHALAL D. MEHTA VS. DCIT (2005) 2 SOT 422 (MUM.), FOLLOWING T HE JUDGMENT OF APEX COURT IN CIT VS. B.C. SRINIVASA SETTY (1981) 1 28 ITR 294 (SC), IT WAS HELD THAT TDR GRANTED BY DCR, 1991 QUALIFYING F OR EQUIVALENT F.S.I. HAVING NO COST OF ACQUISITION, SALE THEREOF GIVES NO RISE TO CAPITAL GAINS. IN THE CASE OF ITO VS. LOTIA COURT C O-OPERATIVE HOUSING SOCIETY LTD. (2008).12 DTR (MUMBAI) (TRIB) 396, IT WAS HELD THAT THE ASSIGNMENT OF THE TDRS TO THE DEVELOPER AND IN TURN THE ADDITIONAL FLOORS TO BE CONSTRUCTED AND ALSO REPAIR S I RENOVATION OF THE BUILDING TO BE CARRIED OUT, DOES NOT RESULT IN TO ACCRUAL OF ANY INCOME IN THE HANDS OF THE ASSESSEE SOCIETY, WHO IS NOT THE OWNER OF THE PLOT. EVEN IN THE CASE OF FLAT OWNERS WHO OWNED THE INDIVIDUAL FLATS IN THE RESPECTIVE NAMES, THERE IS NO QUESTION OF TAXABILITY OF RECEIPT ON ACCOUNT OF SALE OF ADDITIONAL FLOOR SPAC E INDEX RECEIVED BY THE ASSESSEE BY VIRTUE OF TRANSFER OF TDRS UNDER TH E DEVELOPMENT CONTROL REGULATION FOR GREATER MUMBAI, 1991. RECEIP T ON SALE OR ASSIGNMENT OF RIGHTS TO RECEIVE TDRS IS HELD NOT LI ABLE TO TAX. IN THE CASE OF NEW SHAILAJA CHS VS. ITO (ITA NO 512/M/2007 .BENCH B ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 5 DATED 2ND DEC., 2008) (MUMBAI) WHEREIN THE ASSESSEE , A CO-OP. HOUSING SOCIETY BECAME ENTITLED, BY VIRTUE OF THE D EVELOPMENT CONTROL REGULATIONS, TO TRANSFERABLE DEVELOPMENT RI GHTS (TDR) AND THE SAME WERE SOLD BY IT FOR A PRICE TO A BUILDER, IT WAS HELD THAT THOUGH THE TDR WAS A 'CAPITAL ASSET', AS THERE WAS NO 'COST OF ACQUISITION' FOR THE SAME, THE CONSIDERATION COULD NOT BE TAXED AS CAPITAL GAINS. 4.2 BESIDES THE JUDICIAL PRONOUNCEMENT ON WHICH THE APPELLANT HAS RELIED UPON, IT IS SEEN THAT THE FOLLOWING CASE IS FURTHER STRENGTHENED THE ARGUMENT AS RAISED BY THE APPELLANT:- ITOS VIS HEMANDAS J PARIYANI (ITAT MUMBAI) WHEREI N THE HON'BLE TRIBUNAL HAD HELD THAT TDR GRANTED BY THE DEVELOPME NT CONTROL REGULATION FOR GREATER MUMBAI IN 1991 QUALIFYING FO R EQUIVALENT FSI HAVE NO COST OF ACQUISITION AND SO SALE THEREFO RE DOES NOT GIVE RISE TO TAXABLE CAPITAL GAINS. 4.3 THEREFORE, RESPECTFULLY RELYING AND FOLLOWING T HE PRONOUNCEMENT OF THE HON'BLE COURTS INCLUDING THE JURISDICTIONAL COURT AS STATED ABOVE, IT IS HELD THAT THE ACTION OF THE APPELLANT IN ALLOWING THE DEVELOPER THE RIGHT TO LOAD TDR WAS NOT CHARGEABLE TO CAPITAL GAINS TAX. IT IS SEEN THAT THE DECISIONS QUOTED ABOVE ARE DIRECTLY APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT IN THIS A PPEAL. IT IS ALSO SEEN THAT IN THE CASE OF THE APPELLANT COST OF IMPROVEME NT CANNOT BE ASCERTAINED AND THEREFORE THE PRINCIPLE LAID DOWN I N THE CASE OF B.C. SRINIVASA SHETTY BY THE HON'BLE SUPREME COURT WOULD SQUARELY APPLY. THE HON'BLE COURTS HAVE CLEARLY STATED THAT THE RIGHT OF THE OWNER OF A RECEIVING PLOT TO LOAD ADDITIONAL FSI IS THE RIGHT FOR WHICH THERE IS NO COST OF ACQUISITION. IF THAT BE SO, THE N COMPUTATION OF CAPITAL GAIN IN THE CASE OF THE APPELLANT IS NOT PO SSIBLE AND THE RECEIPT OF THE APPELLANT THAT ARISES WOULD NEED TO BE TREATED AS 'CAPITAL RECEIPT' WHICH CANNOT BE BROUGHT TO TAX. 4.4 BESIDES, THE CONTENTION OF THE APPELLANT IS ALS O THAT PROVISIONS OF SECTION 50C IS NOT APPLICABLE IN ITS CASE AS THERE WAS NO TRANSFER OF ANY LAND OR BUILDING AT ALL BY THE APPELLANT WHO HA D ONLY GIVEN THE DEVELOPER THE RIGHT TO CONSTRUCT ON THE EXISTING BU ILDING BY USAGE OF OWN TDR. I FIND THAT THE CASE LAWS THAT HAVE BEEN Q UOTED BY THE ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 6 APPELLANT CLEARLY SUPPORT HIS CASE. SECTION 50-C IS ATTRACTED IF THE CAPITAL ASSET INVOLVED IN TRANSFER IS LAND OR BUILD ING OR BOTH. THE TRANSFER OF RIGHT TO LOAD TDR IS NOT TRANSFER OF LA ND AND/OR BUILDING OR BOTH. UNDER THE DEVELOPMENT AGREEMENT, THE LAND WITH BUILDING CONTINUES TO REMAIN VESTED IN THE SOCIETY OR THE ME MBERS AS THE CASE MAY BE. HENCE, PROVISIONS OF SECTION SOC OF THE INC OME-TAX ACT CANNOT BE MADE APPLICABLE TO THE CAPITAL GAIN ARISI NG FROM THE GRANT OF RIGHT TO LOAD TDR. UNDER THE CIRCUMSTANCES , IT IS CLEAR THAT THE PROVISIONS OF 50C COULD NOT BE APPLIED IN THE C ASE OF THE APPELLANT FOR CALCULATING CAPITAL GAINS. 4.5 THEREFORE, KEEPING THE TOTALITY OF THE FACTS AN D CIRCUMSTANCES OF THE APPELLANT'S CASE IN VIEW, IT IS SEEN THAT THE G ROUNDS OF APPEAL AS RAISED BY THE APPELLANT WOULD NEED TO BE ALLOWED. 5. THE APPEAL IS, THEREFORE, TREATED AS ALLOWED. 2.2. WE FIND THAT WHILE COMING TO A PARTICULAR CONCLUSION, THE LD. COMMISSIONER OF INCOME TAX (APP EALS) JUSTIFIABLY REACHED TO A CONCLUSION BY FOLLOWING VA RIOUS JUDICIAL PRONOUNCEMENTS INCLUDING FROM HONBLE APEX COURT, HONBLE HIGH COURT AND VARIOUS CASES FROM THE TRIBU NAL INCLUDING DEEPAK S SHAH VS ITO (ITA NO.1483/MUM/201 1) ORDER DATED 16 TH JUNE, 2008, WHEREIN, IT WAS HELD THAT WHERE THE OWNER OF THE PROPERTY ALLOWS THE DEVELOPER WHO ARE IN POSSESSION OF TDR TO UTILIZE THE SAID TDR ON HIS PR OPERTY FOR CERTAIN CONSIDERATION, THERE IS NO TRANSFER OF CAPI TAL ASSET, THEREFORE, SECTION 45 OF THE ACT IS NOT ATTRACTED I N SUCH CASES. THE RELEVANT FINDING HAS BEEN RECORDED IN PARA 4 (P AGE 12 ONWARDS) OF THE IMPUGNED ORDER. THE FOLLOWING CASES ARE WORTH MENTIONING A. INSTANCES CONCERNING MEMBERS OF THE SOCIETY A. LAND BREEZE CHS V/S. ITO - [(2013) 211TR (T) 467 (MUM)] ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 7 B. [AFFIRMED BY BOMBAY HIGH COURT IN ITXA NO. 334 OF 2 013] C. JETHALAL D. MEHTA V/S. DCIT - [(2005) 2 SOT 422 (MUM)] D. MAHESHWAR PRAKASH - 2 CHS V/S, ITO - [(2009) 118 ITD 223 (MUM)] E. DEEPAK S. SHAH V/S . ITO - [(2009) 29 SOT 26 (MUM)] F. OM SHANTI CO - OP. SOCIETY LTD . V/S . ITO - [LT . A NO. 2550/ M / 2008, ORDER DATED 28.08.2009] G. ITO V/S . HEMANDAS J . PARIYANI - [LT . A. NO. 2508/ M / 2010, ORDER DATED 29.04.2011] H. ACIT V/S. IGE INDIA LTD. - [(2013) 22 ITR (T) 365 (MUM)] B. INSTANCES CONCERNING SOCIETY I. CIT V/S. SAMBHAJI NAGAR CO - OP . HSG. SOC . LTD. - [(2015) 370 ITR 325 (BOM)] II. ITO V/S. M/S. LOTIA COURT CO - OP. HSG. SOC. LTD. - [(2008) 118 TTJ 199 (MUM)] III. ' M/S . NEW SHAILAJA CHS LTD. V/S. ITO - [(2009) 121 TTJ 62 (MUM)] IV. RAJ RATAN PALACE CO - OP . HSG. SOC. LTD. V/S. DCIT - [(2011) 46 SOT 217 (MUM) (URO)] V. ACIT V/S. SHRI . ISHVERLAL MANMOHANDAS KANAKIA - [I.T.A. NOS. 3053 & 2650/ M / 2010, ORDER DATED 08.02 . 2012] ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 8 THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SAMBHAJI NAGAR CO-OP HSG. SOC. LTD. (2015) 370 ITR 325 (BOM.) HELD AS UNDER:- HELD, DISMISSING THE APPEAL, THAT IN THE CASE OF THE ASSESSEE THE FLOOR SPACE INDEX/TRANSFERABLE DEVELOPMENT RIGHT WAS GENE RATED BY THE PLOT ITSELF. THERE WAS NO COST OF ACQUISITION, WHIC H HAD BEEN DETERMINED AND ON THE BASIS OF WHICH THE ASSESSING OFFICER COULD HAVE PROCEEDED TO LEVY AND ASSESS THE GAINS DERIVED AS C APITAL GAINS. ADDITIONAL FLOOR SPACE INDEX/TRANSFERABLE DEVELOPME NT RIGHT WAS GENERATED BY CHANGE IN THE DEVELOPMENT CONTROL RULE S, 1991. A SPECIFIC INSERTION WOULD, THEREFORE, BE NECESSARY S O AS TO ASCERTAIN ITS COST FOR COMPUTING THE CAPITAL GAINS. THEREFORE, TH E TRANSFERABLE DEVELOPMENT RIGHT WHICH WAS GENERATED BY THE PROPER TY AND WAS TRANSFERRED UNDER A DOCUMENT IN FAVOUR OF THE PURCH ASER WOULD NOT RESULT IN THE GAINS BEING ASSESSED TO CAPITAL GAINS . THE TRIBUNAL CONCLUDED THAT WHAT THE ASSESSEE SOLD WAS TRANSFERA BLE DEVELOPMENT RIGHT RECEIVED AS ADDITIONAL FLOOR SPACE INDEX AS P ER THE 1991 RULES. IT WAS NOT A CASE OF SALE OF DEVELOPMENT RIGHTS ALREAD Y EMBEDDED IN THE LAND ACQUIRED AND OWNED BY THE ASSESSEE. THE TRIBUN AL FOUND THAT THE ASSESSEE HAD NOT INCURRED ANY COST OF ACQUISITION I N RESPECT OF THE RIGHT WHICH EMANATED FROM THE 1991 RULES MAKING THE ASSESSEE ELIGIBLE FOR ADDITIONAL FLOOR SPACE INDEX. THE LAND AND THE BUILDING EARLIER IN THE POSSESSION OF THE ASSESSEE CONTINUED TO REMAIN WITH IT. EVEN AFTER THE TRANSFER OF THE RIGHT OR THE ADDITIO NAL FLOOR SPACE INDEX, THE POSITION DID NOT UNDERGO ANY CHANGE. THE REVENU E COULD NOT POINT OUT ANY PARTICULAR ASSET AS SPECIFIED IN SUB- SECTION (2) OF SECTION 55 . THE CONCLUSION OF THE TRIBUNAL WAS IMMINENTLY POSSIBLE ON THE FACTS AND IN THE LIGHT OF THE LEGAL POSITION AS NOT ED BY THE LANGUAGE OF SECTION 55(2) OF THE ACT. ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 9 WHILE COMING TO THE AFORESAID CONCLUSION, THE HONB LE HIGH COURT DULY FOLLOWED THE DECISION FROM HONBLE APEX COURT IN UNION OF INDIA V. CADELL WEAVING MILL CO. P. LTD. [2005] 273 ITR 1 (SC) AND ALSO CONSIDERED THE FOLLOWING CASES:- I. BAWA SHIV CHARAN SINGH V. CIT [1984] 149 ITR 29 (DE LHI) (PARA 10) II. CIT V. CHUGANDAS AND CO. [1965] 55 ITR 17 (SC) (PAR A 10) III. CIT V. JOY ICE-CREAMS (BANGALORE) P. LTD. [1993] 20 1 ITR 894 (KARN) (PARA 10) IV. CIT V. MANGTU RAM JAIPURIA [1991] 192 ITR 533 (CAL) (PARA 10) V. CIT V. MARKAPAKULA AGAMMA [1987] 165 ITR 386 (AP) ( PARA 10) VI. CIT V. MERCHANDISERS P. LTD. [1990] 182 ITR 107 (KE R) (PARA 10) VII. CIT V. SRINIVASA SETTY (B. C.) [1981] 128 ITR 294 ( SC) (PARA 10) VIII. EAST INDIA HOUSING AND LAND DEVELOPMENT TRUST LTD. V. CIT [1961] 42 ITR 49 (SC) (PARA 10) IX. NALINIKANT AMBALAL MODY V. S. A. L. NARAYAN ROW, CI T [1966] 61 ITR 428 (SC) (PARA 10) X. NEW SHAILAJA CO-OPERATIVE HOUSING SOCIETY LTD. V. I TO [2010] 36 SOT 19 (MUM) (URO) (PARA 4) XI. KRISHNAMURTHY (A. R.) V. CIT [1989] 176 ITR 417 (SC ) (PARA 10) XII. S. G. MERCANTILE CORPORATION P. LTD. V. CIT [1972] 83 ITR 700 (SC) (PARA 10) XIII. SHAKTI INSULATED WIRES LTD. V. JOINT CIT [2003] 87 ITD 56 (MUM) (PARA 4) XIV. UNION OF INDIA V. CADELL WEAVING MILL CO. P. LTD. [ 2005] 273 ITR 1 (SC) (PARA 5) XV. UNITED COMMERCIAL BANK LTD. V. CIT [1957] 32 ITR 68 8 (SC) (PARA 10) ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 10 THE HONBLE JURISDICTIONAL HIGH COURT IN THE AFORES AID CASE HELD THAT TRANSFERABLE DEVELOPMENT RIGHT (TDR) IS G ENERATED BY THE PLOT ITSELF, THEREFORE, THERE IS NO COST OF ACQ UISITION, MEANING THEREBY, THE TRANSFERABLE DEVELOPMENT RIGHT WAS GENERATED BY THE PROPERTY AND WAS TRANSFERRED UNDER A DOCUMENT IN FAVOUR OF THE PURCHASER WHICH WOULD NOT RESULT IN THE GAINS BEING ASSESSED TO CAPITAL GAINS, THERE FORE, IN VIEW OF THE LANGUAGE USED IN SECTION 55(2) OF THE ACT AN D THE REVENUE HAS NOT POINTED ANY PARTICULAR ASSET AS SPE CIFIED IN THE AFOREMENTIONED SECTION AND FURTHER RESPECTFULLY FOLLOWING THE DECISION FROM HONBLE JURISDICTIONAL HIGH COURT , WE AFFIRM THE CONCLUSION FOR THE LD. COMMISSIONER OF INCOME T AX (APPEALS), RESULTANTLY, THE APPEAL OF THE REVENUE I S DISMISSED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF THE HEARING ON 30/11/2015. SD/- SD/- ( RA JENDRA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ( DATED : 01/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 # 1' ( *+ ) / THE CIT, MUMBAI. 4. 0 0 # 1' / CIT(A)- , MUMBAI ASHOK AMBALAL PATEL ITA NO.1231/MUM/2013 11 5. 34 .' , 0 *+& * 5 , # $ / DR, ITAT, MUMBAI 6. 6 7$ / GUARD FILE. / BY ORDER, /3+' .' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI