Deepak Ohri, Patiala V. ITO, W-4, Patiala

ITA 1383/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4128 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-07-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 06-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B K SINGH
• Keywords: Capital asset; Capital receipt; Capital Gains
• Section: 250; 207; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A , CHANDIGARH !' , # $ ! % & ' ( ) , $ BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO.1383/CHD/2018 / ASSESSMENT YEAR : 2008-09 DEEPAK OHRI, # 8A, FRIENDS COLONY, PATIALA. THE INCOME TAX OFFICER, WARD-4, PATIALA. ./PAN NO: AAEPO8997N /APPELLANT /RESPONDENT & ./ ITA NO.1384/CHD/2018 / ASSESSMENT YEAR : 2008-09 RAJEEV GOYAL, # 11A, NIHAL BAGH, BARADARI GARDENS, PATIALA. THE INCOME TAX OFFICER, WARD-4, PATIALA. ./PAN NO: AAVPG3305K /APPELLANT /RESPONDENT /ASSESSEE BY: SHRI DEEPAK AGGARWAL, ADV. ! / REVENUE BY: DR. B.K. SINGH, SR.DR ' # $ /DATE OF HEARING : 25.07.2019 %&'( $ /DATE OF PRONOUNCEMENT: 21.08.2019 ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 2 /ORDER PER BENCH : BOTH THE ABOVE APPEALS HAVE BEEN PREFERRED BY DIFFE RENT ASSESSEES AGAINST SEPARATE ORDERS OF THE COMMISSIO NER OF INCOME TAX (APPEALS), PATIALA [(IN SHORT CIT(A )] DATED 9.8.2018 AND 23.8.2018 RESPECTIVELY, PASSED U/S 250 (6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S ACT), AND BOTH RELATING TO ASSESSMENT YEAR 2008-09 . 2. IT WAS THE COMMON GROUND THAT THE ISSUE INVOLVED IN BOTH THE APPEALS WAS IDENTICAL, INVOLVING IDENTI CAL SET OF FACTS AND CIRCUMSTANCES. THEREFORE, THESE APPEALS WERE TAKEN UP TOGETHER FOR HEARING. FOR THE SAKE OF CONVENIENCE, WE SHALL BE DEALING WITH THE F ACTS IN THE APPEAL IN ITA NO.1383/CHD/2018 AND OUR DECISION TENDERED THEREIN WILL APPLY MUTATIS MUTAND IS TO THE OTHER APPEAL ALSO. ITA NO.1383/CHD/2018: 3. BRIEF FACTS RELATING TO THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.2,11,300/- ON 29.09.2008. THEREAFTER PROCEEDINGS U/S 147 OF THE ACT WERE INITIATED BY THE AO ON THE BAS IS OF INFORMATION IN HIS POSSESSION THAT THE ASSESSEE HAD , IN ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 3 PURSUANCE TO A JOINT DEVELOPMENT AGREEMENT ENTERED INTO, TRANSFERRED LAND FOR CONSIDERATION BOTH IN CASH AND IN KIND AND THE CAPITAL GAINS EARNED THEREFROM HAD ESCAPED TAXATION. THE INFORMATION WITH THE AO REVEALED THAT THE ASSESSEE WAS A MEMBER OF THE DEFENCE SERVICE CO- OPERATIVE HOUSE BUILDING SOCIETY LIMITED' (HEREINAF TER 'THE SOCIETY') WHICH SOCIETY CONSISTED OF 207 MEMBERS A ND WAS THE OWNER OF 27.3 ACRES OF LAND IN VILLAGE KANSAL, DISTRICT MOHALI. THAT THIS SOCIETY HAD ENTERED INTO A TRIPAR TITE JOINT DEVELOPMENT AGREEMENT (HEREINAFTER REFERRED TO AS ' JDA') ON 2.,04.2007 WITH M/S HASH BUILDER PVT. LTD., CHANDIG ARH (HEREINAFTER TERMED 'HASH') AND M/S TATA HOUSING DEVELOPMENT COMPANY LTD., MUMBAI (HEREINAFTER REFER RED TO AS THDC) BY VIRTUE OF WHICH THE SOCIETY WOULD TRAN SFER ITS LAND FOR DEVELOPMENT IN LIEU OF MONETARY CONSIDERAT ION AND ALSO CONSIDERATION IN KIND TO THE MEMBERS OF THE SO CIETY. THAT AS PER THE JDA, EACH MEMBER OF THE SOCIETY, HA VING A PLOT OF 300 SQ. YD. IN THE SOCIETY, WAS TO RECEIVE MONETARY CONSIDERATION OF RS.48,00,000/- AND IN ADDITION TO THIS WAS TO RECEIVE A FULLY FURNISHED FLAT MEASURING 135 0 SQ FT @ RS, 4500 PER SQ.FT. TO BE CONSTRUCTED BY THDC/HASH (VALUE RS.60,75,000). ACCORDING TO THE AO, TOTAL CONSIDERA TION TO BE RECEIVED BY THE MEMBERS WAS RS.1,08,75,000/-, IN CLUDING ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 4 THE VALUE OF THE FULLY FURNISHED FLATS. OUT OF THES E AMOUNTS THE ASSESSEE, AN OWNER OF A 300 SQ. YARD PLOT HAD R ECEIVED RS.19,20,000/- DURING THE IMPUGNED ASSESSMENT YEAR IN TWO TRANCHES OF RS.9.0 LAKHS ON 30.04.2007 AND RS.10.20 LAKHS ON 15.06.2007. THE AO GAVE FINDINGS TO THE EFFECT T HAT TRANSFER OF THE PROPERTY HAD TAKEN PLACE AND THE EN TIRE CONSIDERATION IN CASH AND KIND WAS LIABLE TO BE TAX ED AS LONG TERM CAPITAL GAINS. THE AO RELIED UPON THE DEC ISION OF THE ITAT CHANDIGARH BENCH IN THE CASE OF CHARANJIT SINGH ATWAL VS. ITO IN ITA NO.448/CHD/2011 DATED 29.7.201 3. THE AO FURTHER HELD THAT THE ORDER OF THE ITAT HAD BEEN PARTIALLY REVERSED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT, WHICH HAD RESTRICTED THE ADDITION MADE TO TH E AMOUNT OF CONSIDERATION ACTUALLY RECEIVED BY THE AS SESSEE VIDE THEIR ORDER IN ITA NO.200 OF 2013 (O & M) DATE D 22.7.2015. THEREAFTER NOTING THAT SINCE THE ORDER OF THE HON'BLE PUNJAB & HARYANA HIGH COURT WAS AGITATED IN SLP BEFORE THE HON'BLE APEX COURT, THE AO CONTINUED TO FOLLOW THE ORDER OF THE I.T.A.T. (SUPRA) 4. THE LD.CIT(A) AFTER CONSIDERING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CH ARANJIT SINGH ATWAL (SUPRA) AND THE DECISION OF THE HON'BLE APEX ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 5 COURT ,UPHOLDING THE ORDER OF THE HON'BLE JURISDICT IONAL HIGH COURT, IN THE CASE OF CIT VS. BALBIR SINGH MAI NI IN CIVIL APPEAL NO.15619 OF 2017, HELD THAT THE PROVIS IONS OF SECTION 2(47) OF THE ACT DID NOT APPLY TO THE ENTIR E 300 SQ.YDS. LAND OWNED BY THE ASSESSEE AND, THEREFORE, THE TOTAL CONSIDERATION INCLUDING CONSIDERATION IN KIND COULD NOT BE BROUGHT TO TAX AS CAPITAL GAINS. HE FURTHER HELD TH AT IT WAS ONLY THE CONSIDERATION RECEIVED FOR THE ASSESSEES SHARE IN 4.09 ACRES OF LAND TRANSFERRED BY WAY OF REGISTERED SALE DEED BY THE ASSESSEE, WHICH WAS COVERED BY THE PROVISION S OF CAPITAL GAINS U/S 45 OF THE ACT. HE ACCORDINGLY DIR ECTED THE AO TO RECALCULATE THE CAPITAL GAINS RELATING TO RS. 19.02 LACS ACTUALLY RECEIVED BY THE ASSESSEE, WHICH HE HELD TO BE THE CONSIDERATION FOR LAND TRANSFERRED BY REGISTERED SA LE DEED. THE RELEVANT FINDINGS OF THE LD.CIT(A) IN THIS REGA RD ARE AS UNDER: IN VIEW OF THE GAMUT OF FACTS AND THE DECISIONS CITED ABOVE AND RESPECTFULLY FOLLOWING THE DECISION S OF THE 'HON'BLE SUPREME COURT AND JURISDICTIONAL HIGH COU RT I HOLD THAT SECTION 2(47) DOES NOT APPLY TO THE ENTIRE 300 YARD S OF LAND OWNED BY THE APPELLANT AND THUS THE TOTAL CONS IDERATION INCLUDING CONSIDERATION FOR FLAT CANNOT BE BROUGHT TO TAX AS CAPITAL GAINS GIVEN THAT NO TRANSFER HAS TAKEN PLAC E QUA THE TOTAL LAND. HOWEVER, THE CONSIDERATION RECEIVED FOR THE A PPELLANTS' IN THE 4.09 ACRES OF LAND TRANSFERRED BY WAY OF REG ISTERED SALE BY THE APPELLANTS SHARE IS, IN MY CONSIDERED OPINION SQUARELY COVERED BY THE PROVISIONS OF CAPITAL GAINS AS ENVISAGED BY SECTION 45 OF THE ACT. THE LD, AO IS DIRECTED TO RECALCULATE THE ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 6 CAPITAL GAINS RELATING TO RS.19.2 LAKHS ACTUALLY RE CEIVED BY THE APPELLANT WHICH IS CONSIDERATION FOR LAND TRANSFERRED BY REGISTERED SALE DEED. 5. AGGRIEVED BY THE SAME, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS: 1. THAT THE LD. CIT(A) HAS ERRED IN PARTLY CONFIRM ING THE ADDITION TO THE TUNE' OF RS. 19,20,000/- ON THE GRO UND THAT THE ASSESSEE HAS ACTUALLY RECEIVED THE SAID SUM AS CONSIDERATION FOR LAND TRANSFERRED BY REGISTERED SALE DEED, WHEREAS AS PER THE ASSESSEE T HE CONTROVERSY HAS BEEN SETTLED BY THE HON'BLE APEX COURT IN THE IDENTICAL MATTERS HOLDING THAT THERE I S NO PROFITS OR GAINS AROSE FROM THE TRANSFER OF CAPI TAL ASSET SO AS TO ATTRACT SECTIONS 45 & 48 OF INCOME T AX ACT, THEREFORE THE ADDITION CONFIRMED MAY KINDLY BE DELETED. 2. THAT THE ASSESSEE PRAYS FOR ANY CONSEQUENTIAL RE LIEF AND/OR LEGAL CLAIM ARISING OUT OF THIS APPEAL BEFOR E THE DISPOSAL OF THE SAME. 3. THAT THE ASSESSEE PRAYS FOR ANY ADDITION, DELETI ON, AMENDMENT ARID MODIFICATION IN THE GROUNDS OF APPEAL BEFORE THE DISPOSAL OF THE SAME IN THE INTEREST OF SUBSTANTIAL JUSTICE TO THE ASSESSEE. 6. BEFORE US THE CONTENTION RAISED BY THE LD.COUNSE L FOR THE ASSESSEE WAS TO THE EFFECT THAT THE TOTAL AMOUN T RECEIVED OF RS.19.02 LACS IN TWO TRANCHES, RS.9 LACS ON 30.4 .2007 AND RS.10.02 LACS ON 15.6.2007, WAS NOT ENTIRELY IN THE NATURE OF CONSIDERATION FOR THE TRANSFER OF LAND BY WAY OF REGISTERED SALE DEED BY THE ASSESSEE. THAT IT WAS ONLY THE SEC OND AMOUNT RECEIVED, OF RS.10.02 LACS, WHICH WAS BY WAY OF CONSIDERATION FOR THE TRANSFER OF LAND, WHILE THE F IRST TRANCHE ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 7 WAS IN THE NATURE OF ADJUSTABLE ADVANCE/EARNEST MON EY UPON THE PERFORMANCE OF ALL THE OBLIGATION BY THE OWNER TO THE FULL SATISFACTION OF THE DEVELOPERS. THAT THIS EARNEST MONEY WAS LIABLE TO BE FORFEITED ON TERMINATION OF THE JOINT DEVELOPMENT AGREEMENT (JDA) AS PER THE TERMS OF THE AGREEMENT AND SINCE THE JDA HAD TERMINATED THE FORF EITED ADVANCE WAS IN THE NATURE OF CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE. THAT THE LD.CIT(A), THEREFORE, HAD ER RED IN TREATING THE SAID AMOUNT AS PART OF THE SALE CONSID ERATION FOR TRANSFER OF LAND. OUR ATTENTION WAS DRAWN TO CL AUSE 4.1 OF THE JDA WHICH DEALT WITH THE CONSIDERATION TO BE PAID ON ACCOUNT OF THE JDA AND IT WAS POINTED OUT THAT SU B-CLAUSE (I) & (II) OF THE SAME SPECIFICALLY SPELT OUT THA T THE FIRST INSTALLMENT PAID TO THE OWNERS OF LAND WAS IN THE NATURE OF ADVANCE/EARNEST MONEY AND THE SECOND INSTALLMENT WA S BY WAY OF CONSIDERATION TO BE PAID AGAINST EXECUTION O F A REGISTERED SALE DEED FOR LAND OF EQUIVALENT VALUE. THE SAID CLAUSES READ AS UNDER: 4. CONSIDERATION 4.1 . IT IS EXPRESSLY AGREED BETWEEN THE DEVELOPERS THAT HASH SHALL BE RESPONSIBLE FOR MAKING ALL PAYMENTS TO THE OWNER ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 8 AND/OR THE RESPECTIVE MEMBERS OF THE OWNER(AS THE C ASE MAY BE) AS PER THE NEGOTIATED AND AGREED TERMS BETWEEN THE OWNER AND HASH. HASH EXPRESSLY UNDERTAKES TO MAKE T IMELY PAYMENTS OF THE PAYMENT TO THE OWNER AND /OR THE RE SPECTIVE MEMBERS OF THE OWNER(AS THE CASE MAY BE) AS UNDER: (I) A SUM OF RS.46,773,333/- (RUPEES FOUR CRORE SIX TY SEVEN LACS SEVENTY THREE THOUSAND THREE HUNDRED THIRTY EIGHT ONLY) , IS BEING PAID ON THE EXECUTION OF THIS AGREEMENT TO THE OWNER AND/OR THE RESPECTIVE MEMBER S OF THE OWNER (AS THE CASE MAY BE) AS ADJUSTABLE ADVANCE/EARNEST MONEY ('ADJUSTABLE ADVANCE/EARNEST MONEY), UPON THE PERFORMANCE OF ALL THE OBLIGATIONS BY THE OWNER TO THE FULL SATISFACTI ON OF THE DEVELOPERS. (II) PAYMENT BEING RS. 187,093,350/- (RUPEES EIGHTE EN CRORES SEVENTY LACS NINTY THREE THOUSAND THREE HUND RED FIFTY ONLY) IS BEING PAID ON THE EXECUTION OF THIS AGREEMENT TO THE OWNER AND/OR THE RESPECTIVE MEMBER S OF THE OWNER (AS THE CASE MAY BE) AGAINST WHICH THE OWNER HAS AGREED TO EXECUTE A REGISTERED SALE DEED FOR LAND OF EQUIVALENT VALUE BEING 32 KANALS 14 MARIA EQUIVALENT TO 4.09 ACRES (APPROX.) BEING CONTIGUOUS LAND OUT OF THE PROPERTY AND DELINEATED AND HATCH ED IN RED COLOUR IN THE SHIZRA PLAN ANNEXED HERETO AS ANNEXURE I AND BEARING KHASRA NOS. 123//16/2(1 - 7), 123//17/2(1-7), 123//25(8-0), 136//5(8-0), 136//7(8(0), 136//4(3-0)-PART, 123//24(3-0)-PART. HASH HAS ISSUED TWO HUNDRED SEVEN (207) CHEQUES DRAWN ON ORIENTAL BANK OF COMMERCE IN FAVOUR OF RESPECTIVE MEMBERS OF THE OWNER AS PER THE LIST ANNEXED HERETO AS SCHEDULE B TOWARDS THE PAYMENT MENTIONED IN CLAUSE 4(I) & 4 (II). 7. OUR ATTENTION WAS ALSO DRAWN TO CAUSE 13 OF THE JDA, DEALING WITH TRANSFER OF RIGHTS AND MORE SPECIFICAL LY SUB- CLAUSE (IV) OF THE SAME, DEALING WITH THE RIGHT OF THE OWNER TO TERMINATE THE AGREEMENT AND IN SUCH A SITUATION THE ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 9 OWNER TO FORFEIT THE ADJUSTABLE ADVANCE OR EARNEST MONEY MENTIONED IN CLAUSE (IV). THE SAID CLAUSE READS AS UNDER: (IV) THE OWNER SHALL HAVE THE RIGHT TO TERMINATE T HE AGREEMENT ONLY IN THE EVENT OF DEFAULT BY THE DEVEL OPERS FOR MAKING THE PAYMENT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE ALLOTMENT OF FLATS WITHIN THE TIM E PERIOD AS MENTIONED IN THIS AGREEMENT AND IN CASE NOT MUTUALL Y EXTENDED BEYOND THE PERIOD OF SIX MONTHS EXTENSION, AS PER TERMS OF CLAUSE 14 (II) ABOVE AFTER GIVING THIRTY ( 30) DAYS WRITTEN NOTICE FOR RECTIFICATION OF SUCH BREACH OR ANY FURTHER TIME AS-MAY BE DESIRED BY THE OWNER, IN THE EVENT T HE AGREEMENT IS TERMINATED BY OWNER, ALL THE LANDS REG ISTERED IN THE NAME OF THDC AS PER THE TERMS OF THIS AGREEM ENT UPTO THE DATE OF THE TERMINATION SHALL REMAIN WITH THDC AND THE BALANCE LANDS TO BE TRANSFERRED TO THDC AS PER THE TERMS OF THIS AGREEMENT SHALL NOT BE TRANSFERRED BY THE OWNE R IN FAVOUR OF THDC. UPON THE TERMINATION, THE OWNER SHA LL FORFEIT THE ADJUSTABLE ADVANCE/EARNEST MONEY MENTIONED IN C LAUSE 4(I). 8. THE LD.COUNSEL FOR THE ASSESSEE, THEREFORE, CONT ENDED THAT THE CAPITAL GAINS IN THE PRESENT CASE BE COMPU TED TAKING INTO CONSIDERATION ONLY THE AMOUNT RECEIVED ON ACCOUNT OF TRANSFER OF LAND AND NOT THE ENTIRE AMOU NT OF MONEY RECEIVED. 9. THE LD. DR, ON THE OTHER HAND, STATED THAT THIS ARGUMENT HAD BEEN RAISED FOR THE FIRST TIME AND REQ UIRED INVESTIGATION OF SEVERAL FACTS FOR ADJUDICATION OF THE SAME. THE LD. DR POINTED OUT THAT ALL THE RELEVANT CLAUSE S OF THE JDA MORE PARTICULARLY, THE CLAUSE DEALING WITH THE ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 10 CONSIDERATION TO BE RECEIVED AND THE CLAUSE DEALING WITH THE CANCELLATION/TERMINATION OF THE CONTRACT WOULD HAVE TO BE CONSIDERED SINCE ,HE POINTED OUT THAT THERE WERE FO UR SUB CLAUSES TO THE TERMINATION CLAUSE ,NUMBERED 14, OUT LINING DIFFERENT SITUATIONS IN WHICH THE AGREEMENT COULD B E TERMINATED BY THE PARTIES AND THE IMPACT OF THE SAM E TO THE EARNEST MONEY RECEIVED, WHICH IN SOME CASES HAD BEE N STATED TO BE REFUNDED WHILE IN OTHERS IT WAS REQUIR ED TO BE ADJUSTED AGAINST FURTHER TRANSFER OF LAND .IT WAS C ONTENDED THAT FACTS RELATING TO THE TERMINATION OF THE AGREE MENT WOULD HAVE TO BE CONSIDERED FOR DETERMINING WHICH CLAUSE OF THE AGREEMENT COVERED IT AND THE IMPACT ON THE EARNEST MONEY RECEIVED. ALSO, IT WAS POINTED OUT THAT IT WOULD HAVE TO BE SEEN AS TO WHAT WAS THE AMOUNT MENTIONED IN THE REG ISTERED SALE DEED FOR THE LANDS TRANSFERRED. THE LD. DR FU RTHER STATED THAT EVEN THE DECISION OF THE HON'BLE JURISD ICTIONAL HIGH COURT IN THE CASE OF CHARANJIT SINGH ATWAL (SU PRA) AND THAT OF THE HON'BLE APEX COURT IN THE CASE OF BALBI R SINGH MAINI (SUPRA) WOULD HAVE TO BE CONSIDERED FOR DETER MINING THE ENFORCEABILITY OF THE AGREEMENT, BESIDES OTHER FACTS AND ISSUES RELEVANT TO THE ISSUE AT HAND. THE LD. DR, THEREFORE, PLEADED THAT THE ISSUE BE RESTORED BACK TO THE CIT( A) TO ADJUDICATE THE ISSUE AFTER CONSIDERING ALL FACTS AN D ASPECTS ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 11 RELATING TO THE MATTER. THE LD.COUNSEL FOR THE ASSE SSEE DID NOT OBJECT TO THE SAME. 10. WE HAVE HEARD BOTH THE PARTIES. WE FIND THAT D ESPITE THE ISSUE AT HAND HAVING BEEN DECIDED BY THE LD.CIT (A) IN ACCORDANCE WITH THE PROPOSITION LAID DOWN BY THE HO NBLE APEX COURT IN THE CASE OF BALBIR SINGH MAINI (SUPRA ),THE LD.COUNSEL FOR THE ASSESSEE HAS RAISED A TOTALLY N EW PLEA BEFORE US, GIVING A NEW DIMENSION TO THE ISSUE AT H AND. ADMITTEDLY THE ASSESSEE IS NOT CHALLENGING THE FIND ING OF THE LD.CIT(A) THAT CAPITAL GAINS HAS TO BE COMPUTED ON THE PORTION OF LAND TRANSFERRED BY WAY OF REGISTERED SA LE DEED, WHICH UNDISPUTEDLY IS IN CONSONANCE WITH THE ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF C.S ATWAL( SUPRA) AND THE HONBLE APEX COURT IN THE CASE OF BALBIR SINGH MAINI(SUPRA). 11. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSE SSEE, WHICH WE FIND IS A NEW PLEA NOT RAISED BEFORE TH E LOWER AUTHORITIES, IS THAT THE ENTIRE AMOUNT RECEIVED WAS NOT IN THE NATURE OF CONSIDERATION FOR TRANSFER OF LAND. I T HAS BEEN STATED THAT ONE PORTION OF THE CONSIDERATION WAS IN THE NATURE OF ADVANCE/EARNEST MONEY RECEIVED AND IT WAS ONLY THE OTHER PORTION WHICH WAS IN THE NATURE OF CONSID ERATION ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 12 FOR TRANSFER OF LAND. IT HAS ALSO BEEN PLEADED THAT AS PER THE AGREEMENT THE OWNERS WERE ENTITLED TO FORFEIT THE E ARNEST MONEY ON TERMINATION OF THE CONTRACT. HE HAS ALSO D RAWN OUR ATTENTION TO VARIOUS CLAUSES OF THE JDA TO SUBS TANTIATE HIS ARGUMENTS. IT HAS ACCORDINGLY BEEN PLEADED THAT THE EARNEST MONEY FORFEITED WAS IN THE NATURE OF CAPIT AL RECEIPT AND IN ANY CASE COULD NOT BE TREATED AS CONSIDERATI ON FOR LAND TRANSFERRED. 12. WE HAVE CONSIDERED THE CONTENTION OF THE LD.DR ALSO AND WE ARE IN AGREEMENT WITH THE LD. DR THAT THE ISSUE REQUIRES DEEPER INVESTIGATIONS INTO THE FACTS OF TH E CASE AND NEEDS TO BE ADJUDICATED AFTER CONSIDERING ALL THE F ACTS AND CIRCUMSTANCES RELATING TO THE ISSUE. AS RIGHTLY POI NTED OUT BY THE LD. DR, THE RELEVANT CLAUSES OF THE JDA RELA TING TO THE CONSIDERATION TO BE PAID AND THE CLAUSE RELATIN G TO TERMINATION OF CONTRACT AND ITS CONSEQUENCE NEED TO BE GONE THROUGH CAREFULLY AND APPLIED TO THE FACTS OF THE C ASE. IT IS ALSO PERTINENT, WE FIND, TO GO THROUGH THE CONTENTS OF THE REGISTERED SALE DEED AND DETERMINE THE CONSIDERATIO N NOTED THEREIN FOR THE TRANSFER OF THE LAND. EQUALLY IMPOR TANT WE FIND IS THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT AND THE DECISION OF THE HON'BLE APEX COURT UPHOLDIN G THE ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 13 ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT, WHE REIN THE ENFORCEABILITY OF THE JDA WAS DEALT, SINCE THE ASSE SSES CASE RESTS ENTIRELY ON THE RELEVANT CLAUSES OF THE JDA .THE DECISIONS ALSO NEED TO BE CONSIDERED WITH REGARD T O THE FINDINGS OF THE HONBLE COURTS ON THE TAXABILITY O F THE AMOUNT RECEIVED BY THE OWNERS. 13. WE THEREFORE CONSIDER IT FIT TO RESTORE THE ISS UE TO THE CIT(A) WITH THE DIRECTION TO CONSIDER ALL THE ABOVE ASPECTS AND ALL OTHER FACTS AND ASPECTS WHICH HE CONSIDERS NECESSARY FOR THE ADJUDICATION OF THE ISSUE AND THE REAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW. NEEDLESS T O ADD THE ASSESSEE BE GRANTED DUE OPPORTUNITY OF HEARING. IN EFFECT, THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 14. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE S ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- !' % & ' ( ) (DIVA SINGH ) (ANNAPURNA GUPTA) # $ /JUDICIAL MEMBER *+ $ /ACCOUNTANT MEMBER %! /DATED: 21 ST AUGUST, 2019 * * ITA NO.1383 & 1384/CHD/2018 A.Y.2008-09 14 &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR