Thakkers Developers Ltd., Nashik V. Addl. CIT- Range-1, Nashik, Nashik

ITA 1422/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9751 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-08-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 06-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: ADIYA RATHI
• Keywords: Question of law
• Section: 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 113/PN/2011, ITA NO. 1422/PN/2010 & 1423/PN /2010 (ASSTT.YEAR : 20003-04, 2004-05 & 2005-06) THAKKERS DEVELOPERS LTD., 7, THAKKERS, NEAR NEHRU GARDEN, NASHIK 422 003 PAN NO. AAACT 1513E .. APPELLANT VS. ACIT, RANGE-1, GADKARI CHOWK, AYKAR BHAVAN, NASHIK 422 001. .. RESPONDENT APPELLANT BY : SRI ADIYA RATHI RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 03-08-2012 DATE OF PRONOUNCEMENT : 29-08-2012 ORDER PER G.S. PANNU, AM : THE THREE CAPTIONED APPEALS PREFERRED BY THE ASSESS EE PERTAINING TO THE ASSESSMENT YEARS 2003-04, 2004-05 & 2005-06 ARISE O UT OF RESPECTIVE ORDERS OF THE CIT(A) DATED 02-11-2010 & 15-12-2010. IN ALL T HE APPEALS THE ISSUE RAISED IS COMMON AND THEREFORE THEY HAVE BEEN CLUBBED AND HEA RD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. IN ALL THESE APPEALS THE DISPUTE RELATES TO THE ALLOWABILI TY OF EXPENDITURE ON ACQUIRING RIGHTS IN LAND LOCATED AT NASHIK. 2. THE ASSESSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 AND IS ENGAGED IN THE BUSINESS OF REAL ES TATE, LAND DEVELOPMENT AND CIVIL CONSTRUCTION. THE ASSESSEE PROMOTED A REAL E STATE PROJECT UNDER THE NAME OF MANOHAR NAGAR ON LAND AT SURVEY NO. 798 OF NASHIK . A PORTION OF THE LAND WAS ACQUIRED FROM THE MEMBERS OF M/S. SUMANGAL SOCIETY (OWNERS) UNDER A DEVELOPMENT AGREEMENT DATED 23-12-1993. THE DEVELO PMENT RIGHTS WERE SO 2 ACQUIRED ALONG WITH THE ENCUMBRANCE AND POSSESSION OF JALARAM FAMILY TRUST (JFT) ON THE SAID PROPERTY. THE ASSESSEE CLAIMED T HAT IT ACQUIRED THE DEVELOPMENT RIGHTS IN SUCH LAND SUBJECT TO THE RIGHTS AND POSSE SSION OF JFT. THEREAFTER, ASSESSEE ENTERED INTO AGREEMENTS DATED 24-04-1996 AND 04-07- 1997 WITH JFT TO ACQUIRE THE LATTERS RIGHTS IN THE SAID LAND AND POSSESSION. T HE PAYMENTS MADE TO JFT WERE CLAIMED AS EXPENDITURE ON ACQUISITION OF LAND WHICH HAVE SINCE BEEN DISALLOWED. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION SUCH PA YMENTS ARE DETAILED AS UNDER : ASSESSMENT YEAR AMOUNT 2003-04 RS. 3,01,637/- 2004-05 RS. 3,04,255/- 2005-06 RS. 1,74,561/- 3. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT T HE ISSUE RELATING TO PAYMENTS MADE TO JALARAM FAMILY TRUST (JFT) FOR ACQ UIRING ITS RIGHTS AND POSSESSION OF THE LAND IN QUESTION WAS ALSO A SUBJE CT MATTER OF CONSIDERATION FOR ASSESSMENT YEARS 1999-2000, 2000-01, 2001-02 AND 20 02-03 BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ITS ORDERS DATED 30-07-2008 AFFIR MED THE ACTION OF THE INCOME- TAX AUTHORITIES IN DISALLOWING THE EXPENDITURE AND THEREBY CONCURRING WITH THE CONCLUSION OF THE INCOME-TAX AUTHORITIES THAT THE A GREEMENTS WERE SHAM. 4. BEFORE US, ON BEHALF OF THE APPELLANT, IT IS NOT DISPUTED THAT THE ISSUE STANDS COVERED AS PER THE ORDER OF THE TRIBUNAL DATED 30-0 7-2008 AND FURTHER THAT THE SAME HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. SO, HOWEVER IT IS SUBMITTED THAT THE APPEAL OF THE ASSESSEE BEFORE THE HONBLE HIGH COUR T U/S.260A OF THE ACT HAS SINCE BEEN ADMITTED IN RESPECT OF ASSESSMENT YEARS 1999-2 000 TO 2002-03 ON THE FOLLOWING SUBSTANTIAL QUESTION OF LAW : WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ITAT WAS JUSTIFIED IN HOLDING THAT THE AMOUNT PAID BY THE ASSESSEE TO JALARAM FAM ILY TRUST PURSUANT TO THE AGREEMENTS DATED 24-04-1996 & 04-07-1997 WAS NOT ALLOWABLE. 3 IN THIS REGARD A COPY OF THE ORDER OF THE HONBLE B OMBAY HIGH COURT DATED 18-01- 2012 ADMITTING THE AFORESAID QUESTION OF LAW HAS AL SO BEEN PLACED ON RECORD. 5. IN TERMS THEREOF THE ASSESSEE HAS MADE AN APPLIC ATION U/S.158A(1) OF THE ACT SUBMITTING THAT IDENTICAL QUESTION OF LAW WAS PENDI NG BEFORE THE HONBLE HIGH COURT AND THAT THE FINAL DECISION ON THE AFORESAID QUESTION OF LAW BE APPLIED AND ACCORDINGLY FOR THE CAPTIONED ASSESSMENT YEARS ASSE SSEE WOULD NOT RAISE SUCH QUESTION OF LAW IN APPEAL BEFORE THE HONBLE HIGH C OURT OR THE HONBLE SUPREME COURT U/S.260A OR 261 OF THE ACT RESPECTIVELY. THE APPLICATION MADE BY THE ASSESSEE IN THE PRESCRIBED FROM NO. 8 IS ON RECORD AND COPIES HAVE BEEN FURNISHED TO THE DEPARTMENT AND NO OBJECTION HAS BEEN RECEIVE D FROM THE DEPARTMENT. IN THIS VIEW OF THE MATTER, WE, THEREFORE, DISPOSE OF THE C APTIONED APPEALS HEREIN AFTER. 6. THAT SO FAR AS THE ISSUES RAISED IN THE GROUNDS OF APPEAL IS CONCERNED, THE SAME IS DECIDED AGAINST THE ASSESSEE FOLLOWING THE DECISIONS OF THE TRIBUNAL IN THE ASSESSEES OWN CASE DATED 30-07-2008 (SUPRA) FOR AS SESSMENT YEARS 1999-2000 TO 2002-03, AS THERE IS NO CHANGE IN FACTS AND CIRCUMS TANCES. HOWEVER, ACCEPTING THE DECLARATION IN THE PRESCRIBED FORM NO. 8 FURNISHED BY THE ASSESSEE IN TERMS OF SECTION 158(1) OF THE ACT, THE ASSESSING OFFICER IS FURTHER DIRECTED TO APPLY THE FINAL DECISION ON THE QUESTION OF LAW WHICH IS PEND ING BEFORE THE HONBLE BOMBAY HIGH COURT IN THE ASSESSEES OWN CASE FOR THE ASSES SMENT YEARS 1999-2000 TO 2002-03. THE CAPTIONED APPEALS OF THE ASSESSEE ARE ACCORDINGLY DISPOSED OF. 7. RESULTANTLY, ALL THE CAPTIONED APPEALS ARE DISMI SSED, SUBJECT TO AFORESAID OBSERVATIONS. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF AUGUST 2012. SD/- SD/- (R.S. PADVEKAR) (G.S. PA NNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THE 29 TH AUGUST 2012 SATISH 4 COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. DEPARTMENT 3. CIT-I, NASHIK 4. DCIT, CIRCLE-1, NASHIK 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE