Appeal details
Counselvise Citation
[2017] 127 COUNSELVISE.COM (IT) 6862 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 year(s) 9 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
22-09-2017
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
B
Next Hearing Date
16-02-2017
Assessment Year
2007-2008
Appeal Filed On
03-12-2010
Judgement Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, B CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1363/CHD/2010 ASSESSMENT YEAR: 2007-08 THE DCIT, CIRCLE 1(1), VS. M/S PUNJAB TOURISM DEV ELOPMENT CHANDIGARH CORPORATION LTD, CHANDIGARH PAN NO. AAACP8513E (APPELLANT) (RESPONDENT) ITA NO. 1381/CHD/2010 ASSESSMENT YEAR: 2007-08 M/S PUNJAB TOURISM DEVELOPMENT VS. THE DCIT, CIR CLE 1(1), CORPORATION LTD, CHANDIGARH CHANDIGARH PAN NO. AAACP8513E & ITA NO. 789/CHD/2013 ASSESSMENT YEAR: 2007-08 THE ACIT, CIRCLE 1(1), VS. M/S PUNJAB TOURISM DEVE LOPMENT CHANDIGARH CORPORATION LTD, CHANDIGARH PAN NO. AAACP8513E (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MANJIT SINGH RESPONDENT BY : SH. A.K.JINDAL DATE OF HEARING : 12.07.2017 DATE OF PRONOUNCEMENT : 22. 09.2017 2 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE CAPTIONED CROSS APPEALS BEARING ITA NOS. 1363/C HD/10 AND 1381/CHD/10 PREFERRED BY THE REVENUE AND THE ASSES SEE RESPECTIVELY ARE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), [HEREINAFTER REFERRED TO AS CIT(A)], CHANDIGARH DA TED 22.07.2010 INVOLVING DISPUTE RELATING TO QUANTUM ADDITIONS FOR AY 2007-08 WHEREAS ANOTHER APPEAL BEARING ITA NO.787/CHD/13 PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) CHANDIGARH DATED 30.4.2 014 FOR THE SAME ASSESSMENT YEAR IN RELATION TO THE ISSUE OF LEVY OF PENALTY U/S 271(1) (C) OF THE INCOME TAX ACT (IN SHORT THE ACT). 2. SINCE THE ISSUES RAISED IN THESE APPEALS BY THE ASSESSEE ARE IDENTICAL AND CO-RELATED, THEREFORE, FOR THE SAKE OF CONVENIE NCE, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CO MMON ORDER. 3. FIRST, WE TAKE UP THE APPEALS INVOLVING DISPUTE RELATING TO QUANTUM ADDITIONS. THE REVENUE IN ITS APPEAL IN ITA NO. 136 3/CHD/2010 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND AS PER PROVISIONS OF LAW, LD. CIT(A) ERRED IN ALLOWING THE RELIEF TO THE ASSESSEE IN NOT ADOPTING THE DATE OF ACQUISITION OF THE PROPERTY OF ALL THE EIGHT COMPANIES DURING THE YEAR AS 02.11.2004. 3 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND A S PER THE PROVISIONS OF LAW LD. CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE IN NOT RELYING UPON THE RELEVANT CLAUSE OF THE SALE DEED WHICH MENTIONED THAT THE OWNERSHIP AND POSSESSION OF THE PROPERTIES WERE TRANSFERRED ON 02.11.2014. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND A S PER THE PROVISIONS OF LAW LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE DATE OF ACQUISITION AS 01.11.2014 AND NOT UPHOLDING THE CAPITAL GAIN AS SHORT TERM CAPITAL GAIN INSTEAD OF LONG TERM AS ASSESSED BY THE ASSESSING OFFICER AS PER THE PROPERTIES WERE SOLD WITH A PERIOD OF 36 MONTHS. WHEREAS, THE ASSESSEE IN ITA NO. 1381/CHD/2010 HAS AGITATED TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN ADJUD ICATING GROUND NO. 7 WHICH READS AS UNDER: ' THAT THE LD. A. O. IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSEE HAS NOT ADOPTED THE FAIR MARKET VALUE OF PROPERTY, WITHOUT BRINGING ANY MATERIAL TO PROVE THE SAME AND FURTHER HOLDING THAT THE ASSESSEE HAS NOT VALUED THE PROPERTIES AS PER ITS OWN METHOD, COMPLETELY IGNORING THE REGISTERED VALUER'S REPORT'. AND HENCE NOT GIVING ANY FINDING REGARDING MARKET VALUE AS ON 1.4.1981 TO BE ADOPTED FOR CALCULATING INDEXED COST OF ACQUISITION IN CASE OF TOURIST COMPLEX AT PATHANKOT AND SHAMBHU. 2. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN NOT 4 ADJUDICATING THE ISSUE THAT IN A CASE WHERE APPELLA NT HAS NOT CLAIMED ANY DEPRECIATION ON BUILDING BUT HAS CLAIMED INDEXED COST OF ACQUISITION FOR COMPUTING CAPITAL GAIN - WHETHER THE ASSET (I.E. BUILDING O F JALANDHAR, SANGHOL AND HOSHAIRPUR COMPLEX) CAN BE TREATED AS CAPITAL ASSET & BENEFIT OF INDEXATION HA S TO BE ALLOWED. 3. (A) THAT THE LD. CIT (A) IS NOT JUSTIFIED IN HOLDING THAT THE DATE OF ACQUISITION OF TOURIST COMPLEX AT MADHOPUR HAS TO BE TAKEN AS 7.2.92 BY SAYING THAT N O EVIDENCE HAS BEEN PLACED ON RECORD IN RESPECT OF PHYSICAL POSSESSION HAVING BEEN TRANSFERRED TO THE APPELLANT ON 2.5.1979 COMPLETELY IGNORING THE EVIDENCE FILED. (B) THAT THE LD. CIT (A) IS NOT JUSTIFIED IN NOT G IVING A FINDING REGARDING THE COST OF ACQUISITION OF MADHOP UR COMPLEX TO BE ADOPTED FOR CALCULATING INDEXED COST OF ACQUISITION. 4. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN HOLDING TH AT THE DATE OF ACQUISITION OF LAND AT JALANDHAR IS 4.8.199 6 AS AGAINST 4.8.1986. 5. THAT THE LD. CIT (A) IS NOT JUSTIFIED IN HOLDING TH AT THE COST OF ACQUISITION IN THE CASE OF TOURIST COMPLEX AT MOGA & KAPURTHALA HAS TO BE TAKEN AT NIL UNDER THE FACTS & CIRCUMSTANCES OF THE CASE. 4. THE FACTS OF THE CASE HAVE BEEN DISCUSSED IN PAR A 5.1 ONWARDS OF THE ASSESSMENT ORDER. ON PERUSAL OF THE DOCUMENTS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SOLD THE FOLLOWING P ROPERTIES COMPRISING OF LAND, BUILDING AND OTHER ASSETS. 1. TOURIST COMPLEX MOGA TOURIST COMPLEX) 5 2. TOURIST COMPLEX KAPURTHALA (GARDENIATOURIST COMPL EX) 3. TOURIST COMPLEX PATHANKOT (GULMOHAR TOURIST COMPL EX) 4. TOURIST COMPLEX MADHOPUR (CORAL TOURIST COMPLEX) 5. TOURIST COMPLEX SANGHOI (MARI GOLD TOURIST COMPLE X) 6. TOURIST COMPLEX JALANDHAR (SUKHCHAINTOURIST COMPL EX) 7. TOURIST COMPLEX SHAMBHU (KACHNAR TOURIST COMPLEX) 8. TOURIST COMPLEX HOSHIAPUR (LAJWANTI TOURIST COMPL EX) 5. ON THE SALE OF THE ABOVE SAID PROPERTIES, THE AS SESSEE HAD SHOWN THE INCOME FROM 'LONG TERM CAPITAL GAIN' IN RESPECT OF LAND AND 'SHORT TERM CAPITAL GAIN' IN RESPECT OF BUILDINGS. FURTHER, THE VALUE OF LAND AS ON 01.04.1981 WAS TAKEN BY THE ASSESSEE ON THE BASIS O F VALUE PROVIDED BY THE REGISTERED VALUER M/S KHARBANDA & ASSOCIATES. 6. THE ASSESSING OFFICER (A.O.) IN ORDER TO VERILY THE CLAIM OF THE ASSESSEE GATHERED INFORMATION U/S 133(6) OF THE INC OME-TAX ACT, 1961 FROM THE CONCERNED SUB-REGISTRAR/TEHSILDAR, WHO PROVIDED THE COPY OF MUTATION. HE ALSO TOOK INTO CONSIDERATION THE DEED OF CONVEYA NCE IN RESPECT OF THE ABOVE MENTIONED PROPERTIES THAT WAS EXECUTED ON 22. 11.2004 BETWEEN THE ASSESSEE AND THE DEPARTMENT OF TOURISM AND CULTURAL AFFAIRS, (GOVT. OF PUNJAB.) BASED ON THE MUTATION AND THE CONVEYANCE D EED DATED 22.11.2004, THE ASSESSING OFFICER REACHED TO THE CONCLUSION THA T THE DATE OF ACQUISITION OF THE ABOVE MENTIONED PROPERTIES BY THE ASSESSEE S HOULD BE TAKEN AS 02.11.2004 FOR THE REASON THAT THE DEED OF CONVEYAN CE IN RESPECT OF THE ABOVE STATED PROPERTIES WAS EXECUTED ON 02.11.2004. THE ASSESSING OFFICER ALSO RELIED UPON THE RELEVANT CLAUSE IN THE SALE DE EDS VIDE WHICH THE ASSESSEE SOLD THESE PROPERTIES TO PRIVATE PARTIES, WHICH MENTIONED THAT THE 6 OWNERSHIP AND THE POSSESSION OF THE ABOVE STATED PR OPERTIES WAS TRANSFERRED TO THE ASSESSEE ON 02.11.2004. THE RELE VANT EXTRACT OF THAT CLAUSE OF THE SALE DEED IS REPRODUCED BELOW: - 'MORE PARTICULARLY DESCRIBED IN THE SCHEDULE 'A ' H ERETO AND DELINEATED IN THE MAP ANNEXED HERETO (HEREINAF TER REFERRED TO AS THE 'PROPERTY'), HAVING GOT THE OWNERSHIP AND POSSESSION OF THE SAME FROM THE DEPARTMENT OF TOURISM AND CULTURAL AFFAIRS, GOVERNMENT OF PUNJAB VIDE ORDER GIVEN BY THE PRINCI PAL SECRETARY, TOURISM AND CULTURAL AFFAIRS ON THE ORDE RS OF THE GOVERNOR OF PUNJAB VIDE NOTIFICATION DATED 2 ND NOVEMBER, 2004 REFERENCE NO. 12/79/200L-ITC/2585 AS MENTIONED IN SCHEDULE B HERETO GIVEN ON THE BASI S OF THE ORDER GIVEN BY THE CABINET VIDE LETTER REFERENC E NO. I/60/20&3/1CABINET/2127 DATED 09.03.2003.' 7. SINCE THE DATE OF ACQUISITION WAS TAKEN AS 02. 11.2004 BY THE A.O., AND THE PROPERTIES AS MENTIONED ABOVE, WERE SOLD IN TH E FINANCIAL YEAR 2006- 07, THE A.O. COMPUTED THE INCOME FROM SALE OF LAND AS SHORT TERM CAPITAL GAINS INSTEAD OF LONG TERM CAPITAL GAINS AS THE ABO VE MENTIONED PROPERTIES WERE SOLD WITHIN A PERIOD OF 36 MONTHS FROM THE DAT E OF ACQUISITION. 8. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE SUB MITTED THAT AS PER THE MATERIAL ON RECORD, ALL THE HOTEL PROPERTIES THAT U SED TO BE RUN BY DEPARTMENT OF TOURISM, (GOVERNMENT OF PUNJAB) WERE TRANSFERRED TO THE ASSESSEE M/S. PUNJAB TOURISM DEVELOPMENT CORPORATI ON LIMITED (PTDC) TO IMPLEMENT THE DECISION OF THE COUNCIL OF MINIST ERS WITH REGARD TO SETTING UP OF PUNJAB TOURISM CORPORATION TO RUN THO SE HOTELS OF THE 7 DEPARTMENT OF TOURISM. A MEMORANDUM FOR SETTING UP THE PUNJAB TOURISM DEVELOPMENT CORPORATION WAS PLACED BEFORE THE COUNC IL OF MINISTERS IN THEIR MEETING DATED 09.10.1978. THE COUNCIL OF MINI STERS APPROVED THE PROPOSAL GIVEN BY THE DEPARTMENT OF TOURISM. AS PER THE APPROVAL OF THE COUNCIL OF MINISTERS, THE CORPORATION WAS TO BE SET UP AS 'PUNJAB TOURISM DEVELOPMENT CORPORATION' A PRIVATE LIMITED COMPANY WITH AUTHORISED CAPITAL OF RS. 5 CRORES. THE ENTIRE ASSETS OF THE D EPARTMENT OF TOURISM TENTATIVELY VALUED AT 1,50,59,710.89 WERE TO BE TRA NSFERRED TO THE CORPORATION AS EQUITY THROUGH BOOK VALUE. THE BREAK UP OF THE ASSETS WAS PART OF LETTER NO. 3236-STC-78/3853 DATE D 26.10.1979. AS PER THE BREAK-UP, 10 TOURIST COMPLEXES INCLUDING THE TO URIST COMPLEXES MENTIONED ABOVE WERE TRANSFERRED IMMEDIATELY AFTER THE INCORPORATION OF THE PTDC. IT WAS THEREFORE PLEADED THAT THE DATE OF ACQUISITION OF THE AFORESAID PROPERTIES WAS PRIOR TO 1.4.1981 AND HENC E THE COST ACQUISITION OF THE PROPERTY HAS RIGHTLY BEEN TAKEN BY THE ASSESSEE AS ON 1.4.1981 AND THAT THE ASSESSEE HAS RIGHTLY RETURNED THE LONG TERM CAP ITAL GAINS ON THE SALE OF LAND BENEATH THE BUILDINGS. 9. THE LD. CIT(A), AFTER CONSIDERING THE ABOVE S UBMISSIONS OF THE ASSESSEE AND AFTER GOING THROUGH THE RELEVANT RECOR DS, OBSERVED THAT M/S PUNJAB TOURISM DEVELOPMENT CORPORATION LIMITED (PTD C) (ASSESSEE) WAS INCORPORATED ON 26.3.1979 VIDE REGISTRATION NO. 395 1 DATED. 26.03.1979. PTDC WAS INCORPORATED IN CONSEQUENT TO THE LETTER N O. 3236-STC-778/3853 DATED 26.10.1978 WHICH WAS FROM THE SECRETARY TO GO VERNMENT, PUNJAB TOURISM AND CULTURAL AFFAIRS, ARCHAEOLOGY AND MUSEU MS DEPARTMENT, 8 PUNJAB, CHANDIGARH. THROUGH THIS LETTER, IT WAS CON VEYED THAT THE GOVERNOR OF PUNJAB WAS PLEASED TO ACCORD SANCTION TO THE SET TING UP OF PUNJAB TOURISM DEVELOPMENT CORPORATION FROM THE DATE IT WA S REGISTERED. THAT FIRST MEETING OF THE BOARD OF DIRECTORS OF PTDC WAS HELD ON 9.4.1979 AND VARIOUS DECISIONS WERE TAKEN. AS PER RESOLUTION NO. 1.7, THE BOARD OF DIRECTORS OF PTDC RESOLVED THAT THE ASSETS OF THE T OURISM DIRECTORATE BE TAKEN OVER AND ITS VALUE WOULD BE TREATED AS INVEST MENT IN THE CORPORATION AS SHARE CAPITAL OF THE STATE GOVERNMENT. AS PER IT EM NO. 30.2 OF METING OF BOARD OF DIRECTORS HELD ON17.03.1986, A DECISION WAS TAKEN TO ALLOT SHARES TO THE GOVERNMENT OF PUNJAB IN CONSIDERATION OF THE TRANSFER OF ENTIRE ASSETS OF DIRECTOR OF TOURISM, TENTATIVELY V ALUED AT RS. 1,50,59,710.89. HOWEVER, SUBSEQUENTLY OUT OF THESE ASSETS, TOURISM BUNGALOW AT SHAHPUR KANDI AND YOUTH HOSTEL, AMRITSA R WERE NOT TRANSFERRED TO THE ASSESSEE. DUE TO THIS, THE VALUE WAS WORKED OUT AT RS. 1,42,25,495/- TOWARDS THE VALUE OF THE REMAINING BU ILDING AND SERVICEABLE CURRENT ASSETS. FINALLY 1,42,554 EQUITY SHARES OF R S. 10 EACH FULLY PAID UP BEARING NO. 272,400 TO 414,654 WERE ALLOTTED IN THE NAME OF GOVERNOR OF PUNJAB IN CONSIDERATION OF THE ASSETS TRANSFERRED T O PTDC BY THE DIRECTORATE OF TOURISM. THAT ALL THE ASSETS WERE TR ANSFERRED BY THE DIRECTOR OF TOURISM BY WAY OF PHYSICAL POSSESSION AND NO CON VEYANCE DEED WAS EXECUTED AT THE TIME OF THE TRANSFER OF THE ASSETS. FURTHER AS PER THE FIRST ANNUAL REPORT AND ACCOUNTS FOR THE YEAR 1979-80, PT DC SHOWED ASSETS TRANSFERRED FROM THE DIRECTORATE OF TOURISM IN ITS ACCOUNTS AND CLAIMED DEPRECIATION ETC. NOTE NO.1 TO THE ACCOUNTS EXPLAIN ED THE ENTIRE TRANSACTION OF TRANSFER OF ASSETS BY THE DIRECTORATE OF TOURISM . THEREAFTER, PTDC HAS 9 BEEN CONSISTENTLY SHOWING THESE ASSETS AS PART OF I TS FIXED ASSETS AND CLAIMED DEPRECIATION AND OTHER EXPENSES RELATING TO THESE IN ITS ACCOUNTS AND TAX RETURNS AND THE SAME WERE ACCEPTED BY THE D EPARTMENT OF INCOME TAX AND NO OBJECTION WERE RAISED BY THE DEPARTMENT OF INCOME TAX AT ANY STAGE SUBSEQUENTLY WITH REGARD TO THE OWNERSHIP OF THE ASSETS AND OTHER RELATED TRANSACTIONS. THE LD. CIT(A) EXAMINED THE R ECORDS AND THE RELEVANT EVIDENCES REGARDING EACH OF THE AFORESAID PROPERTIE S AND GAVE HIS FINDINGS AS UNDER: 1. TOURIST COMPLEX, MOGA I FIND THAT THE ASSESSEE SUBMITTED THE HANDLING OVE R AND TAKING OVER PHYSICAL POSSESSION OF THE LAND BY THE OFFICE OF DIRECTOR, TOURISM TO THE ASSESSEE COMPANY ON 11.7.1988 WITHOUT ANY COST. I FATHER FIND THAT THIS PROPERTY WAS INAUGURATED BY THE HON'BLE MINISTER OF STATE FOR TOURISM, CULTURAL AFFAIRS, INFORMATION AN D PUBLIC RELATION, PUNJAB ON 12.11.1993. I FIND THAT THE PHYSICAL POSSESSION WAS HANDED OVER TO THE ASSESSEE , WITHOUT CONVEYANCE DEED OR SALE AT THAT POINT OF TI ME. THE ASSESSING OFFICER DID NOT ACCEPT THESE DOCUMENT S AS COGENT AND RELIABLE EVIDENCE IN SUPPORT OF THE CLAI M OF THE ASSESSEE AND REJECTED THE CLAIM OF THE ASSESSE E BY CITING REASONS AS STATED IN PARA 6.2 OF THE ASSESSM ENT ORDER. I FIND THAT HANDING OVER THE PHYSICAL POSSES SION TO THE ASSESSEE COMPANY ON 11.7.1988 BY A FORMAL LETTE R, IS A POSITIVE EVIDENCE SUPPORTING THE HANDING OVER OF THE PHYSICAL POSSESSION. IN VIEW OF THE PROVISIONS OF S ECTION 2(47) OF THE INCOME-TAX ACT, 1961, DATE OF PHYSICAL POSSESSION OF THE PROPERTY WOULD BE TREATED AS THE DATE OF ACQUISITION IN THE HANDS OF THE BUYER AND THERE FORE, IN 10 THIS CASE DATE OF ACQUISITION WOULD BE TAKEN ON 11. 7.1988 AND THE COST OF ACQUISITION OF RS. NIL. 2. TOURIST COMPLEX, KAPURTHALA I FIND THAT THIS PROPERTY WAS TRANSFERRED TO THE AS SESSEE BY WAY OF PHYSICAL POSSESSION ON 12.5.1989 WITHOUT ANY COST. THE ASSESSEE HAS TAKEN THE PHYSICAL POSSESSIO N OF THIS PROPERTY FROM MUNICIPAL COMMITTEE ON 12.5.1989 . IN VIEW OF THIS, I AM OF THE OPINION THAT 12.5.1989 BEING DATE OF PHYSICAL POSSESSION, SHOULD BE CONSIDERED A S THE DATE OF ACQUISITION BY APPLYING THE PROVISIONS OF S ECTION 2(47) OF THE INCOME-TAX ACT, 1961 AND THE COST OF ACQUISITION AT RS. NIL. 3. TOURIST COMPLEX, PATHANKOT I FIND THAT THIS PROPERTY WAS TRANSFERRED AND PHYSI CALLY HANDED OVER TO THE PTDC ON 09.4.1979. IN SUPPORT OF THIS I FIND THAT THE ASSESSEE HAS PLACED ON RECORD VARIOUS DOCUMENTS SUCH AS THE MEMORANDUM DULY APPROVED BY THE COUNCILS OF MINISTERS FOR THE PURPOSE OF SETTIN G UP THE ASSESSEE CORPORATION AND TRANSFER OF CERTAIN PROPERTIES INCLUDING THIS PROPERTY, CONSEQUENT OF T HE GOVERNMENT OF PUNJAB ON THIS, RESOLUTION NO. 17 OF THE FIRST MEETING OF THE BOARD OF DIRECTORS OF THE ASSE SSEE FOR THE PURPOSE OF TAKING OVER CERTAIN ASSETS INCLU DING THIS PROPERTY. THE ASSESSEE FURTHER PLACED ON RECOR D THE FIRST ANNUAL ACCOUNTS OF THE ASSESSEE FOR THE YEAR 1979- 80 SHOWING THIS PROPERTY AS ITS OWN PROPERTY IN THE FIXED ASSETS SCHEDULE OF THE BALANCE SHEET AND ALSO CLAIM ED THE DEPRECIATION THEREON. THE CONCERNED ASSESSING OFFIC ER ACCEPTED THE TAX RETURN OF THE ASSESSEE AND RAISED NO OBJECTION IN RESPECT OF THE OWNERSHIP OF THIS ASSET AT ANY STAGE AFTER 09.04.1979. IN VIEW OF THIS I AM OF THE VIEW 11 THAT 09.04.1979 SHOULD BE TAKEN AS THE DATE OF ACQUISITION OF THIS PROPERTY BY THE ASSESSEE. 4. TOURIST COMPLEX, MADHOPUR . THE ASSESSEE SUBMITTED THAT THE LAND OF THIS PROPER TY WAS TRANSFERRED TO THE ASSESSEE BY PHYSICAL POSSESSION ON 02.05.1979. THE ASSESSEE ALSO PLACED ON RECORD COPY OF INTKAAL THAT SHOWED THE NAME OF THE ASSESSEE ON 07.02.1992. I FIND THAT THE ASSESSEE HAS NOT PLACE D ON RECORD ANY EVIDENCE IN RESPECT OF PHYSICAL POSSESS ION AND, THEREFORE, THE DATE AT WHICH ENTRY WITH REGARD TO THE NAME OF THE ASSESSEE AS STATED IN INTKAAL I.E. 07.0 2.1992, IS HEREBY TAKEN AS DATE OF ACQUISITION IN THE HANDS OF THE ASSESSEE. 5. TOURIST COMPLEX, SANGHOL THE ASSESSEE PLACED ON RECORD DOCUMENTS RELATING TO TAKING OVER THE PHYSICAL POSSESSION OF THE LAND BET WEEN THE ASSESSEE AND THE REVENUE DEPARTMENT. AS PER THE DOCUMENT, PHYSICAL POSSESSION WAS GIVEN TO THE ASSE SSEE ON 06.07.1994. THE ASSESSEE ALSO MADE PAYMENT OF RS . 4,95,000./- ON ACCOUNT OF LAND. BY APPLYING THE PROVISIONS OF SECTION 2(47) OF THE INCOME-TAX ACT, 1961, DATE OF PHYSICAL POSSESSION I.E. 06.07.1994 IS TAKE N AS DATE OF ACQUISITION IN THE HANDS OF THE ASSESSEE. 6. TOURIST COMPLEX, JALANDHAR THE ASSESSEE PLACED ON RECORD ALLOTMENT LETTER FROM THE OFFICE OF THE IMPROVEMENT TRUST, JALANDHAR AT A TOT AL COST OF RS. 5,82,900/-. AS PER THE DOCUMENTS, LAND OF YA TRI NIWAS, WAS HANDED OVER PHYSICALLY ON 04.08.1996. B Y APPLYING THE PROVISIONS OF SECTION 2(47) OF THE INC OME- TAX ACT, 1961, DATE OF PHYSICAL POSSESSION I.E. 04. 08.1996 12 IS TAKEN AS DATE OF ACQUISITION IN THE HANDS OF THE ASSESSEE. 7. TOURIST COMPLEX, SHAMBHU I FIND THAT THIS PROPERTY WAS TRANSFERRED AND PHYSI CALLY HANDED OVER TO THE PTDC ON09.04.1979. IN SUPPORT OF THIS, I FIND THAT THE ASSESSEE HAD PLACED ON RECORD VARIOUS DOCUMENTS SUCH AS THE MEMORANDUM DULY APPROVED BY THE COUNCILS OF MINISTERS FOR THE PURPO SE OF SETTING UP THE ASSESSEE CORPORATION AND TRANSFER OF CERTAIN PROPERTIES INCLUDING THIS PROPERTY, CONSENT OF THE GOVERNMENT OF PUNJAB ON THIS RESOLUTION NO. 17 OF T HE FIRST MEETING OF THE BOARD OF DIRECTORS OF THE ASSE SSEE FOR THE PURPOSE OF TAKEN OVER CERTAIN ASSETS INCLUD ING THIS PROPERTY. THE ASSESSEE FURTHER PLACED ON RECOR D THE FIRST ANNUAL ACCOUNTS OF THE ASSESSEE FOR THE YEAR 1979- 80 SHOWING THIS PROPERTY AS ITS OWN PROPERTY IN THE FIXED ASSETS SCHEDULE OF THE BALANCE SHEET AND ALSO CLAIM ED THE DEPRECIATION THEREON. THE CONCERNED ALSO ACCEPTED T HE TAX RETURN OF THE ASSESSEE AND RAISED NO OBJECTION IN RESPECT OF THE OWNERSHIP OF THIS ASSET AT ANY STAGE AFTER 09.04.1979. IN VIEW OF THIS, I AM TAKING 09.04.1979 AS THE DATE OF ACQUISITION OF THIS PROPERTY IN THE HAN DS OF THE ASSESSEE. 8. TOURIST COMPLEX, HOSHIAPUR, THE ASSESSEE WAS TRANSFERRED THIS PROPERTY BY PROVI NCIAL GOVERNMENT FOR A TOTAL CONSIDERATION OF RS. 5,91,41 5/-. IN SUPPORT OF THE OWNERSHIP, A COPY OF FARD WAS PLA CED ON RECORD. COPY OF FARDSHOWS THE ENTRY IN THE NAME OF THE ASSESSEE ON10.08.1988 WHICH IN MY OPINION WILL BE CONSIDERED AS THE DATE OF ACQUISITION FOR THE PURPO SE OF COMPUTATION OF CAPITAL GAINS. 13 24. I FIND THAT ALL THE PROPERTIES AS STATED ABOVE WERE TRANSFERRED EARLIER BY WAY OF PHYSICAL POSSESSION O R BY ENTRY IN THE REVENUE RECORD OR BY WAY OF CONVEYANCE DEED. I DO NOT FIND ANY OF THE ABOVE STATED PROPERT IES WERE TRANSFERRED TO THE ASSESSEE BY WAY AS SPECIFIE D IN SECTION 49 OF THE INCOME TAX ACT, 961. THE ASSESSEE HAS NOT PLACED ANY EVIDENCE OR MATERIAL IN SUPPORT OF I TS CLAIM U/S 49 OF THE INCOME-TAX ACT, 1961. THEREFORE , THE CLAIM OF THE ASSESSEE TO THIS EFFECT TIS REJECTED A ND NOT SUSTAINABLE ON FACTS AND IN LAW. 10. NOW BOTH THE PARTIES ARE IN APPEAL BEFORE US. W E HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO GONE THROUGH THE RECORD. THE REVENUE HAS MAINLY RELIED UPON THE RECITATION IN THE SALE DEEDS OF THE RESPECTIVE PROPERTIES VIDE WHICH LANDS HAVE BEEN FURTHER TRANS FERRED BY THE ASSESSEE TO THE THIRD PARTIES WHEREIN IT HAS BEEN MENTIONED THAT THE OWNERSHIP OF THE PROPERTIES DESCRIBED IN THE SCHEDULE A WAS TRANSF ERRED TO THE ASSESSEE CORPORATION FROM THE DEPARTMENT OF TOURISM & CULTUR AL AFFAIRS, GOVERNMENT OF PUNJAB VIDE NOTIFICATION DATED 2.11.2 004 (AS REPRODUCED ABOVE) IN PARA 6 OF THIS ORDER. THE REVENUE IN THI S RESPECT HAS ALSO RELIED UPON THE DECISION OF THE AMRITSAR BENCH OF THE TRIB UNAL DATED 29.4.2011 IN THE CASE OF M/S AMRITSAR HOTEL LTD VS. DCIT, ITA NO . 1096/CHD/2010 FOR ASSESSMENT YEAR 2007-08 WHEREIN THE TRIBUNAL WHILE DEALING WITH THE DISPUTE RELATING TO THE CAPITAL GAIN ON ENTIRE PROP ERTY AT AMRITSAR HAS RELIED UPON THE RECITATION IN THE SALE DEED REGARDING THE PASSING OF THE FULL OWNERSHIP OF THE SAID PROPERTY VIDE NOTIFICATION DA TED 2.11.2004. THE 14 TRIBUNAL OBSERVED THAT THE PTDC HAD BECOME ABSOLUTE OWNERSHIP OF THE PROPERTY FROM THE DEPARTMENT OF TOURISM AND CULTURA L AFFAIRS VIDE NOTIFICATION DATED 2.11.2004 (SUPRA). THE TRIBUNAL THUS OBSERVED THAT FROM THE AFORESAID RECITAL IN THE DEED OF CONVEYANCE THE ABSOLUTE OWNERSHIP INCLUSIVE OF LEGAL TITLE AND POSSESSION OF THE PROP ERTY TRANSFERRED BY THE ASSESSEE COMPANY TO THE PURCHASER WAS ACQUIRED BY I T ON 2.11.2004 FROM THE GOVERNMENT OF PUNJAB. THE TRIBUNAL OBSERVED TH AT HAVING RECITED IN THE SALE DEED THAT THE ASSESSEE HAD BECOME ABSOLUTE OWNERSHIP OF THE PROPERTY ON 2.11.2004, THE ASSESSEE COMPANY COULD N OT BE ALLOWED TO TURN AROUND AT THIS STAGE AND DENY THE AFORESAID FACTS S TATED IN THE CONVEYANCE DEED. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE, BEFORE US, HAS SUBMITTED THAT THE CONVEYANCE DEEDS FOR SALE OF PROPERTY AT K APURTHALA, PATHANKOT, JALANDHAR, SHAMBU AND HOSHIARPUR HAVE BEEN GOT MOD IFIED VIDE REGISTERED MODIFICATION DEEDS, WHEREIN, IT HAS BEEN CONVEYED THAT IT HAD BEEN WRONGLY RECORDED THAT THE FIRST PARTY (PTDC) GOT T HE OWNERSHIP AND POSSESSION OF PROPERTIES FROM THE GOVERNMENT OF PUN JAB VIDE NOTIFICATION DATED 2.11.2004, WHICH HAS BEEN SUBSTITUTED WITH TH E EXACT DATES OF ACQUISITION OF THE RESPECTIVE PROPERTIES. HE HAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS THOROUGHLY DISCUSSED ABOUT THE RELEV ANT DOCUMENTS VIDE WHICH LAND AND BUILDING OF DIFFERENT TOURIST COMPLE XES WERE TRANSFERRED TO THE ASSESSEE FROM PUNJAB TOURISM DEVELOPMENT CORPOR ATION (PTDC). 11. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. IN OU R VIEW, MERELY BECAUSE IN THE MUTATION RECORDS, DUE TO CERTAIN REA SONS, THE PROPERTY REMAINED STANDING IN THE NAME OF DEPARTMENT OF TOUR ISM BEFORE THE ISSUE 15 OF NOTIFICATION DATED 2.11.2004, THAT ITSELF IS NOT ENOUGH TO HOLD THAT THE PROPERTY WAS NOT TRANSFERRED TO THE ASSESSEE. EVEN THE RECITATION IN THE RESPECTIVE SALE DEEDS (VIDE WHICH THE PROPERTY WAS FURTHER TRANSFERRED BY THE ASSESSEE TO THIRD PARTIES) REGARDING THE TRANSF ER OF THE PROPERTY TO THE CORPORATION ON 2.11.2004 HAS ALSO BEEN GOT MODIFIED BY WAY OF REGISTERED MODIFICATION DEEDS. IN THIS WAY THE SAID RECITATION OF NOTIFICATION DATED 2.11.2004 STOOD SUBSTITUTED IN THE RESPECTIVE SALE DEEDS WITH THE RELEVANT DATES ON WHICH THE ASSESSEE CLAIMS TO HAVE TAKEN OV ER EACH OF THE PROPERTY FROM THE TOURISM DEPARTMENT. AS PER THE MODIFICATIO N DEED DATED 5.6.2013 IN RESPECT OF PROPERTY SITUATION AT SHALIM AR GARDAN, KAPURTHALA, THE DATE OF TRANSFER OF THE PROPERTY FROM PUNJAB TO URISM DEPARTMENT TO THE PTDC HAS TO BE READ VIDE LETTER NO. 26/59/90/LR .V/9487 DATED 6.6.91 ISSUED BY GOVERNMENT OF PUNJAB DEPARTMENT OF REVENU E. THE LETTER NO. PTDC/PROJECTS KAPURTHALA /91 20361-62 DATED 24.12.1 991 HAS TO BE READ INSTEAD OF GOVERNMENT OF PUNJAB NOTIFICATION DATED 2.11.2004. SIMILARLY, IN RESPECT OF PROPERTY AT GULMOHAR TOURIST COMPLEX, PATHANKOT, IT IS TO BE READ AS PER CONVEYANCE DEED VIDE GOVERNMENT OF P UNJAB MEMO NO. 3236-3T&C-78/385-30 DATED 26.10.1978 AND THE POSSES SION VIDE BOARD OF DIRECTOR OF TOURISM RESOLUTION DATED 9.4.1979. IN RESPECT OF PROPERTY SITUATED AT MASTER TARA SINGH NAGAR, JALANDHAR, TH E CONVEYANCE OF THE PROPERTY TO THE PTDC IS TO BE READ VIDE MEMO NO. JI T/2971 DATED 4.8.1986 FROM JALANDHAR IMPROVEMENT TRUST. IN RESPE CT OF PROPERTY AT KACHNAR TOURIST COMPLEX, SHAMBU IT IS TO BE READ AS CONVEYED TO THE PTDC VIDE GOVERNMENT OF PUNJAB NO. MEMO NO. 3236-3T &C-78/385-30 DATED 26.10.1978 AND THE POSSESSION TAKEN VIDE BOAR D OF DIRECTOR OF 16 TOURISM RESOLUTION DATED 9.4.1979. IN THE MODIFICAT ION DEED RELATING TO THE PROPERTY AT LAJWANTI TOURIST COMPLEX, HOSHIARP UR, THE SAME IS TO BE READ AS TRANSFERRED TO THE PTDC VIDE GOVERNMENT OF PUNJAB NOTIFICATION DATED 5/7/2002/1/TC/929 DATED 21.5.2003. THUS THE RECITATION IN THE RESPECTIVE SALE DEEDS REGARDING THE CONVEYANCE OF T HE PROPERTIES IN QUESTION VIDE NOTIFICATION DATED 2.11.2004 HAS ALRE ADY BEEN SUBSTITUTED AS DISCUSSED ABOVE. 12. IN OUR VIEW, RELIANCE SOLELY CANNOT BE PLACED O N THE RECITATION EITHER IN ORIGINAL SALE DEEDS OR IN THE MODIFIED SALE DEED S (EXECUTED BY THE ASSESSEE IN FAVOUR OF THIRD PARTIES) REGARDING THE ACTUAL DATES OF ACQUISITION OF THE PROPERTIES BY THE ASSESSEE CORPO RATION. THE ISSUE IS REQUIRED TO BE EXAMINED IN THE LIGHT OF RELEVANT EV IDENCES IN THIS RESPECT. IT IS ALSO PERTINENT TO MENTION HERE THAT THE ENTRY IN THE MUTATION RECORDS, THOUGH, IS INDICATIVE OF THE OWNERSHIP OF THE PROPE RTY BUT THE SAME CANNOT BE SAID TO BE THE TITLE OF OWNERSHIP OF PROPERTY. S OMETIMES, THE OWNERSHIP GETS TRANSFERRED TO OTHER PARTY BUT THE ENTRY IN TH E MUTATION RECORD IS NOT RECORDED, WHICH MAY CREATE CERTAIN DOUBTS AND DISPU TES BETWEEN THE TRANSFEREE AND TRANSFEROR OR CONFUSION TO THE PUBLI C IN GENERAL. THE CASE OF THE ASSESSEE IS ALSO THAT TO REMOVE THE CONFUSION A BOUT THE OWNERSHIP AND TITLE OF THE PROPERTY SO THAT THERE SHOULD NOT BE A NY DOUBT TO THE PROSPECTIVE BUYERS, ANOTHER NOTIFICATION OF 2004 WA S ISSUED BY THE GOVERNMENT OF PUNJAB CONVEYING IN CLEAR TERMS THE O WNERSHIP OF THE PROPERTIES IN QUESTION TO THE ASSESSEE CORPORATION SO THAT IT MAY BE ABLE TO SELL THE SAME TO THE THIRD PARTIES WITHOUT ANY HIND RANCE. HOWEVER, 17 SUBSEQUENT NOTIFICATION ISSUED BY THE GOVERNMENT HA D NOT NULLIFIED THE EARLIER LETTERS OF CONVEYANCE OF THE PROPERTIES TO THE CORPORATION. 13. WE AGREE WITH THE ABOVE CONTENTIONS RAISED BY T HE LD. AR OF THE ASSESSEE. JUST BECAUSE THAT THERE SHOULD NOT BE ANY PROBLEM IN FURTHER CONVEYANCE OF THE PROPERTY TO THE PROSPECTIVE BUYER S TO REMOVE ALL TYPES OF DOUBTS AND AMBIGUITIES, IF A FRESH NOTIFICATION OF 2004 WAS PASSED, THAT CANNOT BE SAID TO HAVE NULLIFIED THE EARLIER TRANSA CTIONS OF CONVEYANCE OF THE PROPERTIES TO THE CORPORATION. IT IS OPEN TO T HE ASSESSEE TO ESTABLISH BY WAY OF EVIDENCE THE DATES OF ACQUISITION OF THE RES PECTIVE PROPERTIES AS PER THE PROVISIONS OF INCOME TAX ACT. THOUGH, IN COMMON PARLANCES THE PROVISIONS OF THE TRANSFER OF PROPERTY ACT ARE RELE VANT TO DETERMINE THE DATE OF TRANSFER AND THE TRANSFER IS DEEMED TO BE COMPLE TE ON THE EXECUTION OF REGD. SALE DEED, HOWEVER, FOR DETERMINATION OF INCO ME TAX LIABILITY, THE TRANSFER IS TO BE SEEN UNDER THE PROVISIONS OF THE INCOME TAX ACT. BY SAYING SO, WE DO NOT MEAN THAT THE SUBSEQUENT NOTIF ICATION OF 2004 HAS NO VALUE OR VALIDITY; IF THE ASSESSEE FAILS TO PROVE B Y OTHER EVIDENCE THAT THE TRANSFER WAS COMPLETE (AS PER THE PROVISIONS OF THE INCOME TAX ACT) PRIOR TO THE ISSUE OF NOTIFICATION, THEN THE DATE OF NOTIFIC ATION CAN BE TAKEN AS THE DATE OF TRANSFER. 14. WE HAVE EXAMINED THE EVIDENCES RELIED UPON BY THE ASSESSEE AND AS DISCUSSED BY THE LD. CIT(A) IN RESPECT OF ACQUISITI ON OF EACH OF THE PROPERTY IN DISPUTE BY THE ASSESSEE CORPORATION. NO W WE WILL DEAL ABOUT THE DATE AND COST OF TRANSFER OF PROPERTY/LAND IN R ESPECT OF EACH OF THE 18 TOURISM COMPLEXES TRANSFERRED BY THE DEPARTMENT OF TOURISM TO THE ASSESSEE CORPORATION: - (I) IN RESPECT OF PROPERTY AT MOGA, LD. CIT(A) HAS RELIED UPON THE LETTER DATED 11.7.1988 AND CONCLUDED THAT ON TH E SAID DATE THE ASSESSEE CAME INTO THE POSSESSION OF THE SAID PROPERTY AND THAT THE TRANSFER WAS COMPLETE AS PER THE PROVISION S OF SECTION 2(47) OF THE INCOME-TAX ACT. WE HAVE GONE THROUGH THE DOCUMENTS DATED 11.7.1988 WHICH ARE THE COPIES OF THE DAILY DIARY (ROZNAMCHA) FOR THE Y EAR 1987-88 FROM THE REGISTER OF THE PATWARI / LAND REVENUE OFF ICER. ACCORDING TO THESE DOCUMENTS, THE POSSESSION OF LAN D AT MOGA BEARING KHASRA NO. 153 HAS BEEN TRANSFERRED BY PROV INCIAL GOVERNMENT IN FAVOUR OF TOURISM DEPARTMENT, PUNJAB WITH THE APPROVAL OF THE DY. COMMISSIONER FARIDKOT. THE LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT IN FACT ON THE SAI D DATE, IT WAS THE ASSESSEE CORPORATION WHICH HAS TAKEN OVER ACTUA L AFFAIRS OF THE TOURISM DEPARTMENT AND THAT THE POSSESSION OF T HE LAND IN FACT WAS THE TRANSFERRED TO THE ASSESSEE CORPORATIO N, HOWEVER, THE NAME OF THE TOURISM DEPARTMENT HAS BEEN WRONGLY MENTIONED. IT IS THE CASE OF THE ASSESSEE CORPORATION THAT THE PROPERTIES OF TOURISM DEPARTMENT WERE TAKEN OVER BY THE ASSESSEE CORPORATION. BUT FROM THE SAID DOCUMENTS, IT IS GAT HERED THAT BEFORE 11-07-1988 THE TOURISM DEPARTMENT WAS NOT OW NER OF THE LAND IN QUESTION RATHER THE SAME WAS USED TO BE LEASED OUT 19 BY THE STATE GOVERNMENT TO THE PRIVATE PERSONS THRO UGH DY. COMMISSIONER, FARIDKOT. IN VIEW OF THIS, IN OUR VIE W, THE ISSUE IS REQUIRED TO BE RE-EXAMINED; (II) SIMILAR IS THE POSITION RELATING TO THE LAND A T KAPURTHALA. RELEVANT DOCUMENTS RELIED UPON BY THE ASSESSEE AND DISCUSSED BY CIT(A) SUCH AS LETTER DATED 12.5.1989 OF THE PRE SIDENT, MUNICIPAL COUNCIL, KAPURTHALA TO THE DIRECTOR TOURI SM DEPARTMENT, PUNJAB AND OF THE UNDER SECRETARY, GOVE RNMENT OF PUNJAB TO DY. COMMISSIONER KAPURTHALA, DEPICT THAT THE LAND WAS TRANSFERRED BY THE PROVINCIAL GOVERNMENT TO THE TOURISM DEPARTMENT, PUNJAB. THE NAME OF THE ASSESSEE CORPOR ATION DOES NOT FIGURE; (III) & (IV): IN RESPECT OF TOURIST COMPLEX, PATHA NKOT AND TOURISM COMPLEX, SHAMBU, THE RELEVANT DOCUMENTS REL IED UPON BY THE ASSESSEE AND DISCUSSED BY THE CIT(A) ARE NOT CONCLUSIVE OF THE EVIDENCE AS TO WHEN THE LAND IN RESPECT OF THE AFORESAID TOURISM COMPLEXES WAS TRANSFERRED TO THE ASSESSEE. SO FAR AS THE RELIANCE OF THE ASSESSEE ON THE LETTER OF MEMORANDU M NO. 3236- 3T&C/78/385-30 DATED 26.10.1978 IS CONCERNED, THE S AME REVEALS THE DECISION OF THE GOVERNMENT OF PUNJAB FO R SETTING UP OF PUNJAB TOURISM DEVELOPMENT CORPORATION AND IT HA S BEEN DECIDED THAT THE ENTIRE ASSETS IN THE DEPARTMENT OF TOURISM TENTATIVELY VALUED AT RS. 15059710.89 WILL BE TRANS FERRED TO THE 20 CORPORATION AS EQUITY BY BOOK ENTRY INVOLVING NO CA SH OUT FLOW. FURTHER ANOTHER LETTER DATED 3235-3TC-78/36332 DATE D 26.10.1978 SHOWS THAT THE SECRETARY TO THE GOVERNME NT OF PUNJAB HAS DECIDED TO WIND UP THE DIRECTORATE OF TO URISM. IN PARA 3 OF THE SAID LETTER, IT HAS BEEN MENTIONED AS UNDER:- 3. THE FIRST PROBLEM WOULD BE REGARDING THE TRANSFER OF THE ASSETS OF THE DEPARTMENT TO THE CORPORATION. ACCORDINGLY, TO THE ADVICE OF THE DEPARTMENT OF PLANNING, THESE ASSETS HAVE TO BE EVALUATED PRECISELY. IT IS, THEREFORE, SUGGESTED TH AT NECESSARY ACTION IN THIS BEHALF MAY BE TAKEN IMMEDIATELY SO THAT THE ASSETS MAY BE TRANSFERRED B Y THE DIRECTOR, TOURISM TO THE MANAGING DIRECTOR OF THE CORPORATION. THE ABOVE MENTION SHOWS THAT IT WAS DECIDED TO TRAN SFER ALL THE ASSETS OF THE TOURISM DEPARTMENT TO THE ASSESSEE CO RPORATION WHICH WERE TO BE TRANSFERRED BY FURTHER ACTION. THI S LETTER CAN NOT BE SAID TO BE THE DEED OF CONVEYANCE OR CONFIRM ATION OF TRANSFER OF ASSETS OF THE TOURISM DEPARTMENT TO THE ASSESSEE CORPORATION ON THE SAID DATE; (V) IN RESPECT OF THE TOURIST COMPLEX AT MADHOPUR, THE ASSESSEE HAS RELIED UPON THE LETTER OF THE DY. SECR ETARY, TOURISM DATED 1.6.1981 ADDRESSED TO THE FINANCIAL COMMISSIO NER, IRRIGATION AND SECRETARY TO GOVERNMENT OF PUNJAB WH EREIN IT HAS BEEN MENTIONED THAT THE GOVERNMENT HAS DECIDED TO S ET UP A MOTEL AT MADHOPUR HEADWORK ADJACENT TO THE EXISTING SNACK BAR 21 BEING ALREADY RUN BY THE PUNJAB TOURISM DEVELOPMENT CORPORATION. IT WAS, THEREFORE, REQUESTED THAT THE LAND AT WHICH THE MOTEL IS TO BE BUILT MAY BE TRANSFERRED TO THE TOURISM DEPARTMENT AT BOOK VALUE FOR THE CONSTRUCTION OF TH E MOTEL. FURTHER, THERE IS A LETTER DATED 10.1.1992 VIDE WHI CH A SANCTION HAS BEEN ACCORDED BY THE CHAIRMAN AND THE MANAGING DIRECTOR OF THE PUNJAB TOURISM DEVELOPMENT CORPORATION TO RE LEASE THE PAYMENT OF RS. 1,96,600/- TO THE SUB DIVISIONAL OFF ICER, IRRIGATION DEPARTMENT, MADHOPUR ON ACCOUNT OF COST OF LAND FOR THE CORAL BAR AND RESTAURANT , PUNJAB. THE TOTAL COST HAS BEEN MENTIONED AS RS. 2,22,600/-, ALREADY PAID RS. 26,00 0/- AND THE BALANCE TO BE PAID RS. 1,96,600/-. BEFORE PROCEED ING FURTHER WE MAY MENTION HERE THAT MOST OF THE DOCUMENTS RELI ED UPON BY THE ASSESSEE ARE NOT READABLE. EVEN THOUGH, IN THE LETTER DATED 1.6.1981, IT HAS BEEN MENTIONED THAT THE MOTEL WILL BE RUN BY THE PUNJAB TOURISM DEVELOPMENT CORPORATION, HOWEVER, RE QUEST HAS BEEN MADE TO TRANSFER THE LAND IN FAVOUR OF THE DE PARTMENT OF TOURISM PUNJAB; (VI) SO FAR AS THE PROPERTY AT SANGHOL IS CONCERNED , THE ASSESSEE HAS RELIED UPON CERTAIN DOCUMENTS SUCH AS COPY OF THE ORDER DATED 22.2.1994 AND OTHER LETTERS. HOWEVER, T HE SAME ARE NOT READABLE. IT IS ALSO NOT CLEAR WHETHER THE LETT ERS IS QUESTION WERE ADDRESSED TO THE TOURISM DEPARTMENT, PUNJAB OR TO THE ASSESSEE CORPORATION. 22 (VII) IN RESPECT OF PROPERTY AT JALANDHAR, THE ASS ESSEE CORPORATION WAS ALLOTTED LAND BEARING 7 KANALS 5 MA RLAS FOR CONSTRUCTION OF YATRI NIWAS BY THE IMPROVEMENT TRUS T, JALANDHAR VIDE LETTER DATED 4.8.1986 FOR A CONSIDER ATION OF RS. 5,82,900/-. FROM THE LETTER DATED 4.8.1986 IT IS ES TABLISHED THAT THE LAND AT JALANDHAR WAS ALLOTTED TO THE ASSESSEE BY JALANDHAR IMPROVEMENT TRUST FOR A CONSIDERATION OF RS. 5,82,9 00/-, HENCE, IN CASE OF PROPERTY AT JALANDHAR, IT IS HELD THAT T HE DATE OF ACQUISITION IS 4.8.1986 AND THE COST OF ACQUISITION IS RS. 5,82,900/-. (VIII) SO FAR AS THE LAND AT HOSHIARPUR IS CONCERNE D, VIDE SALE DEED DATED 10.8.1988, ONE DARSHAN RAM TRANSFERRED T HE PROPERTY IN THE NAME OF THE DIRECTOR TOURISM, PUNJAB FOR A C ONSIDERATION OF A SUM OF RS. 5,40,540/-. ANOTHER SALE DEED DATE D 19.8.1988 BY SMT. SHANTI DEVI HERSELF AND BEING GENERAL POWER OF ATTORNEY OF SH. VED PARKASH AND OTHERS IS OF THE LA ND AT HOSHIARPUR TRANSFERRED IN FAVOUR OF THE DIRECTOR TO URISM, PUNJAB GOVERNMENT FOR A CONSIDERATION OF RS. 43,87 5/-. AGAIN FROM THE PERUSAL OF THE AFORESAID SALE DEEDS, IT IS NOT CLEAR AS TO WHETHER THE LAND WAS TRANSFERRED TO THE ASSESSEE CO RPORATION OR THE TOURISM DEPARTMENT, PUNJAB OR WHEN DID THE LAND WAS TRANSFERRED BY THE TOURISM DEPARTMENT IN FAVOUR OF THE ASSESSEE. IT IS ALSO NOT CLEAR WHETHER THE PAYMENT WAS MADE BY THE ASSESSEE CORPORATION FOR PURCHASE OF THE AFORES AID LAND OR 23 BY THE TOURISM DEPARTMENT FOR AND ON BEHALF OF THE ASSESSEE CORPORATION. 15. FROM THE ABOVE DISCUSSION, EXCEPT THE PROPERTY AT JALANDHAR, THE DATE OF THE TRANSFER OF THE REMAINING PROPERTIES AND THE COST OF ACQUISITION OF THE SAID PROPERTIES BY THE ASSESSEE CORPORATION CAN NOT BE SAID TO BE CONCLUSIVELY DETERMINABLE FROM THE DOCUMENTS RELIED UPON BY THE ASSESSEE AND AS DISCUSSED BY THE LD. CIT(A). FURTH ER THE ASSESSEE HAS RELIED UPON CERTAIN DOCUMENTS SUCH AS LETTER DATED 10.3.1981 ORDER OF THE GOVERNMENT OF PUNJAB DATED 11.10.1982, MINUTES OF M EETING HELD IN THE OFFICE OF DAIRY DEVELOPMENT CORPORATION DATED 14.8. 1979 ETC. HOWEVER, PERUSAL OF THE AFORESAID LETTERS REVEALS THAT THE S AME PERTAIN TO THE TRANSFER / COST OF BUILDING AND NOT OF THE LAND. THESE DOCUM ENTS ARE THE ADDITIONAL EVIDENCES WHICH HAVE NOT BEEN EXAMINED BY THE LOWER AUTHORITIES. THE ISSUE IS REQUIRED TO BE EXAMINED AT THE HANDS OF TH E ASSESSING OFFICER. ACCORDINGLY, EXCEPT THE PROPERTY AT JALANDHAR, THE MATTER IN RESPECT OF DATE OF TRANSFER/ACQUISITION OF THE REMAINING PROPE RTIES IN QUESTION IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO EX AMINE AS ON WHAT DATE THE PUNJAB TOURISM DEVELOPMENT CORPORATION (ASSESSEE) C OME INTO THE POSSESSION OF EACH OF THE PROPERTY AND WHETHER SUCH POSSESSION AMOUNTED TO TRANSFER AS DEFINED U/S 2(47) OF THE ACT, IF NOT , THEN TO DETERMINE THE DATE OF TRANSFER IN RESPECT OF EACH OF THE PROPERTY AND FURTHER TO DECIDE THE COST OF ACQUISITION ALSO AND TO DECIDE WHETHER THE INCOME EARNED ON SUBSEQUENT TRANSFER OF THE PROPERTIES TO THE THIRD PARTIES WOULD FALL IN THE 24 DEFINITION OF LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN AND COMPUTE THE CAPITAL GAINS ACCORDINGLY. 16. HOWEVER, WE DO NOT AGREE WITH THE CONTENTION OF THE LD. AR THAT THE PROPERTY WAS DEVOLVED ON THE ASSESSEE ON THE ESTABL ISHMENT OF THE ASSESSEE CORPORATION FROM TOURISM DEPARTMENT, PUNJAB AS NO S UCH DOCUMENT OR EVIDENCE IN THIS RESPECT HAS BEEN PLACED ON FILE. R ATHER THE EVIDENCES SHOW THAT IT WAS DECIDED THAT THE ASSETS OF THE TOURISM DEPARTMENT WILL BE TRANSFERRED BY FURTHER SEPARATE ACTION. IN VIEW O F THIS, WE DO NOT FIND FORCE IN THE CONTENTION OF THE ASSESSEE THAT THE PR OPERTIES MAY BE DEEMED TO BE DEVOLVED UPON THE ASSESSEE AS PER THE PROVISI ONS OF SECTION 49 OF THE ACT THE ACT. THIS ISSUE IS DECIDED AGAINST THE ASSE SSEE. ITA NO. 787/CHD/2013 (ASSESSMENT YEAR 2007-08) 17. IN THIS APPEAL, THE ONLY GROUND RAISED BY THE R EVENUE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IN APPEAL NO. 71/12-13, HAS ERRED IN DELETING THE FOLLOWING PENALTY:- 1. THE LD. CIT(A) HAS ERRED IN FACTS AS WELL AS LAW IN DELETING PENALTY U/S 271(1)(C) BECAUSE THE ASSESSEE CAN BE HELD TO HAVE FURNISHED INACCURATE PARTICULAR OF INCOME WHERE THE ASSESSEE MAKES A CLAIM OF DEDUCTION, WHICH IS INCORRECT AS PER LAW AND IS NOT AS PER PROVISIONS OF THE ACT. 25 18. THE ISSUE INVOLVED IN THIS APPEAL IS IN RELATI ON TO THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT; SINCE WE HAVE RESTORED TH E ISSUE RELATING TO THE QUANTUM ADDITIONS TO THE FILE OF THE ASSESSING OFFI CER, HENCE THE VERY BASIS FOR THE LEVY OF THE PENALTY HAS CEASED TO EXIST. MO REOVER IT DOES NOT SEEM TO BE THE CASE OF FURNISHING OF INACCURATE PARTICUL ARS OF INCOME OR CONCEALMENT OF INCOME, BUT OF DIFFERENCE OF OPINION AS TO THE DATE OF ACQUISITION OF THE PROPERTIES IN QUESTION. THEREFOR E THE IMPUGNED PENALTY LEVIED BY THE AO, AT THIS STAGE, HAS NO LEGS TO STA ND AND HENCE, THE SAME IS ORDERED TO BE DELETED. HOWEVER, THE AO DURING THE S ET-ASIDE ASSESSMENT PROCEEDINGS, IF SO DEEM FIT IN THE FACTS AND CIRCUM STANCES OF THE CASE, WILL BE AT LIBERTY TO INITIATE FRESH PENALTY PROCEEDINGS . 19. IN THE RESULT, BOTH THE QUANTUM APPEALS BEARING ITA NOS. 1363/CHD/10 AND 1381/CHD/10 ARE TREATED AS PARTLY A LLOWED FOR STATISTICAL PURPOSES WHEREAS PENALTY APPEAL BEARING ITA NO ITA NO.787/CHD/13 IS TREATED AS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22.09.2017 SD/- SD/- (DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :22. 09.2017 RKK COPY TO: THE APPELLANT THE RESPONDENT THE CIT THE CIT(A) THE DR 26
