M/s Hotel Woodside, Mangalore V. Asst.C.I.T., Bangalore

ITA 1270/BANG/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9294 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital Gains

Judgement Text

PAGE 10 OF 16 ITA NOS.1269 & 1270/BANG/2016 5.2. WE NOTE THAT THESE ISSUES HAVE BEEN DECIDED BY HONBLE JUDICIAL MEMBER AS UNDER: 19. AS WE HAVE HELD THAT NO TRANSFER HAS TAKEN PLA CE ON. 07.04.2005, THEREFORE THERE WAS NO JUSTIFICATION FO R LOWER AUTHORITIES TO COMPUTE THE CAPITAL GAINS ARISING OUT OF THE ALL EGED TRANSFER ON 07.06.2005, YET FOR COMPLETENESS FOR RECORD. WE WOU LD LIKE TO RECORD, THAT THE FINDING RECORDED BY THE COMMISSIONER (APPEAL) THAT ON ACCOUNT OF GRANT OF LICENCE TO CON STRUCT DATED 06.032006. THE POSITION SAID TO HAVE BEEN HANDED A WORK TO THE DEVELOPER, WAS A INCORRECT TINDING OF FACT BY THE L OCAL AUTHORITY. 19.1 IN OUR VIEW NO TRANSFER CAN TAKE PLACE WITHIN THE MEANING OF SECTION 2(47) OF THE ACT ON THE BASIS OF THE CONSTR UCTION AGREEMENT/DEVELOPMENT AGREEMENT. AS THE SAID AGREEM ENT FAILURE TO COMPLY THE PROVISIONS OF THE TRANSFER OF PROPERTY A CT REGISTRATION ACT AND STAMP DUTY ACT FURTHER RELIANCE OF THE REVENUE ON THE JUDGEMENT OF T.K DAYALU WAS MISPLACED IN THE PRESEN T SET OF FACTS AND AFTER THE PRONOUNCEMENT OF THE JUDGEMENT BY THE HONBLE SUPREME COURT IN MATTER OF BALBIR SINGH (SUPRA), AS NO POSSESSION WAS GIVEN FOR THE PURPOSES OF TRANSFER OF PROPERTY ACT IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE THER E WAS NO JUSTIFICATION FOR THE AUTHORITIES BELOW TO COMPUTE THE CAPITAL GAIN BY ASSUMING THAT THE TRANSFER HAS TAKEN PLACE ON 7 OF JUNE 2005. FURTHER, THE AO, IN RESPECT TO 1TA.L27O/BANG/2016, HAD RELIED UPON THE LETTER DT. 17.01.2013 ADDRESSED BY THE DEVELOPE R FROM WHICH THE AO BAD INFERRED THAT THE SALE CONSIDERATION OF THE ASSESSEES LAND WAS RS.18,32,31,000/- AND NOT RS.17,55,35,000/-. IN OUR VIEW THE RELIANCE OF THE AO ON THE SAID LETTER WAS PREMISED ON THE FACT THAT A TRANSFER HAS TAKEN PLACE ON 07.06.2005 AND THEREAFT ER THE COST HAS BEEN ARRIVED AT. AS WE HAVE HELD NO TRANSFER HAS TA KEN PLACE IN THE EYES OF LAW ON 7.06.2005, THEREFORE, THERE WAS NO O CCASION TO REVISE THE COST OF LAND AS RS.18,32,31,000/- INSTEAD OF RS . 17,55,35,00O/- . FURTHER THE LETTER WAS DATED. 17.01.2013 AND THE SAID LETTER MENTIONED THE COST OF LAND OF THE ASSESSEE AS PER M OU DT.07.03.2308 AND NOT 07.062005. THEREFORE ALSO THE COST OF LAND IF REQUIRED TO LA- TAKEN AS ON 07.03.2008 WAS RS.18,32 ,31,000/-, WHEREAS THE PRESENT PROCEEDINGS PERTAINS TO ASST. Y EAR 2006-07 AND NOT FOR THE ASST. YEAR 2009-10. IT IS AN ADMITTED P OSITION IN LAW THAT THE TAX IS TO BE CHARGED IN THE YEAR IT ACCRUED. TH EREFORE THE FINDING OF THE LOWER AUTHORITIES IS DEVOID OF MERIT. IN THE RESULT THESE GROUNDS NO 9, 9.1 AND 11 OF ITA NO. 1269/BANG/16 & GROUND NO.6. 6.1 OF ITA NO.1270/BANG/20L6 OF THE ASSESSEE ARE AL LOWED. --- THIS SPACE IS LEFT VACANT INTENTINALLY ---