DDIT, CHENNAI V. The India Cements Educational Society, CHENNAI

ITA 1525/CHNY/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8196 (ITAT-CHENNAI)
• Duration Of Justice: 5 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 14-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 16-09-2010
• Court: TRIBUNAL
• Department Lawyers: JAYARAM RAIPURA
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Capital asset; Charitable institution; Maximum Marginal Rate; Earning of tax free income; Benefit of exemption
• Section: 12AA; 263; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , . ! , ' !# $ [ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ] ./ I.T.A.NO.1525/MDS/2010 / ASSESSMENT YEAR : 2007-08 THE DY. DIRECTOR OF INCOME - TAX(EXEMPTIONS)-I CHENNAI VS. THE INDIA CEMENTS EDUCATIONAL SOCIETY DHUN BUILDINGS NO.827 ANNA SALAI, CHENNAI - 2 [PAN AAATT 3132 E ] ( %& / APPELLANT) ( '(%& /RESPONDENT) / APPELLANT BY : SHRI JAYARAM RAIPURA, CIT /RESPONDENT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE / DATE OF HEARING : 14 - 1 2 - 2015 / DATE OF PRONOUNCEMENT : 20 - 01 - 2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XII, CHEN NAI, DATED 29.6.2010, FOR ASSESSMENT YEAR 2007-08. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS RUN NING AN ARTS COLLEGE AND DULY REGISTERED U/S 12AA OF THE A CT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD A LAND FOR AN AMOUNT OF ` ITA NO.1525/10 :- 2 -: 39.66 CRORES. THE PURPOSE OF SALE WAS TO USE THE S ALE PROCEEDS FOR EXPANSION OF THE EDUCATIONAL ACTIVITIES. HOWEVER, THE AFORESAID AMOUNT WAS ADVANCED TO M/S ANNA INVESTMENTS PVT. LT D. AND THE ASSESSEE CLAIMED THE CAPITAL GAIN AS EXEMPT INCOME. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT PURCHAS ED THE LAND AND THE MONEY WAS USED BY M/S ANNA INVESTMENT PVT. LTD FOR THEIR PURPOSE. AS SUCH, THE ASSESSING OFFICER OUT RIGHTLY TREATED THE INCOME FROM SALE OF LAND AS INCOME OF THE ASSESSEE AND AL SO DENIED EXEMPTION U/S 11 OF THE ACT AS THE AMOUNT ADVANCE D TO M/S ANNA INVESTMENT PVT. LTD IS NOT AN APPROVED INVESTMENT U/S 11(5) OF THE ACT. THE INCOME OF THE ASSESSEE WAS COMPUTED AS AOP U/S 164(2) OF THE ACT. ON APPEAL, THE CIT(A) GAVE A FINDING T HAT THE ASSESSEE ADVANCED THE MONEY OUT OF SALE OF LAND TO M/S ANNA INVESTMENT PVT. LTD. WHERE THE PRESIDENT AND HIS WIFE OF THE ASSES SEE-TRUST ARE DIRECTORS. ACCORDING TO HIM, SEC. 13(3) OF THE ACT IS NOT FULFILLED AS THE ASSESSING OFFICER HAS NOT PROVED AS TO WHAT BENEFIT ACCRUED TO THE SPECIFIED PERSON FROM THE ADVANCEMENT OF THAT AMOUN T TO M/S ANNA INVESTMENT PVT. LTD. ACCORDING TO HIM, THE VIEW OF THE ASSESSING OFFICER THAT THERE IS NO VIOLATION OF SEC. 13 IS FA R FETCHING AND HE WAS OF THE VIEW THAT THE ASSESSING OFFICER IS INCORRECT IN THIS REGARD. REGARDING DENYING THE EXEMPTION U/S 11 AND ASSESSI NG THE ASSESSEE U/S 164(2) OF THE ACT, HE HAS GIVEN A FINDING THAT THERE IS VALID ITA NO.1525/10 :- 3 -: REGISTRATION U/S 12AA OF THE ACT AND THIS WAS NOT CANCELLED OR WITHDRAWN BY THE CIT AND AS SUCH SEC. 11 CANNOT BE DENIED. HE DIRECTED THE ASSESSING OFFICER TO ALLOW EXEMPTION U/S 11 OF THE ACT. REGARDING INVESTMENT OF SALE PROCEEDS OF LAND IN M/ S ANNA INVESTMENT PVT. LTD. HE OBSERVED THAT MAKING MERE ADVANCE TO T HIRD PARTIES CANNOT BE TREATED AS UTILIZATION FOR INVESTMENT IN CAPITAL ASSET WITHIN THE MEANING OF SEC. 11(5) OF THE ACT. ACCORDINGLY, HE REJECTED THE ARGUMENT OF THE ASSESSEE THAT MAKING ADVANCE OUT O F SALE PROCEEDS OF CAPITAL ASSET FOR PURCHASE OF ANOTHER ASSET AS I NVESTMENT IN NEW CAPITAL ASSET. FURTHER, HE OBSERVED THAT THE CAPIT AL GAIN ARISING OUT OF TRANSFER OF CAPITAL ASSET TO BE ASSESSED AS PER SEC . 48 OF THE ACT AND THE RATE IS TO BE APPLIED AS PER SEC. 112 OF THE AC T AND NOT AT THE MAXIMUM MARGINAL RATE SUGGESTED BY THE ASSESSING OF FICER. AGAINST THIS, THE REVENUE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. IN THIS CASE, THE ASSESSEE A DVANCED AN AMOUNT OF ` 39,66,50,000/- ON 30.6.2006 TO M/S ANNA INVESTMENT PVT. LTD. AND THE CAPITAL GAIN ARISING ON SALE OF LAND AT NAV ALUR EGATTUR AND THALAMBUR DURING THE FINANCIAL YEAR ON 31.3.2007. M/S ANNA INVESTMENT PVT. LTD HAVE RETURNED THE MONEY ON 31.3 .2009 AND THE SAID AMOUNT WAS NOT INVESTED IN NEW ASSET WITHIN TH E PREVIOUS YEAR, THEREFORE, EXEMPTION U/S 11(1)(A) IS NOT AVAILABLE TO THE ASSESSEE. ITA NO.1525/10 :- 4 -: THE CONTENTION OF THE LD. A.R OF THE ASSESSEE IS TH AT ONLY THAT AMOUNT OF CAPITAL GAIN TO BE TAKEN OUT OF THE TOTAL INCOME OF THE ASSESSEE AND THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 11 ON THE BALANCE AMOUNT OF THE INCOME AND THE CAPITAL GAIN ONLY TO BE TAXE D IN TERMS OF SEC. 164(2) OF THE ACT BY APPLYING THE RATE SPECIFIED IN SEC. 164 OF THE ACT. FOR THIS PURPOSE, HE RELIED ON THE JUDGMENT OF BOMB AY HIGH COURT IN THE CASE OF DCIT(E) VS SHETH MAFATLAL GAGALBHAI FOU NDATION TRUST , 249 ITR 533. HE ALSO RELIED ON THE CBDT CIRCULAR N O.387 DATED 6.4.1984, 152 ITR 1(ST.) SPECIFICALLY PARA 28.6 STA TING THAT WHERE A TRUST CONTRAVENES THE PROVISIONS OF SEC. 13(1)(C) O R (D) OF THE ACT, THE MAXIMUM MARGINAL RATE OF INCOME TAX WILL APPLY ONLY TO THAT PART OF THE INCOME WHICH HAS FORFEITED EXEMPTION UNDER THE SAID PROVISIONS. HE HAS ALSO RELIED ON THE JUDGMENT OF THE KARNATAKA HIGH COURT IN THE CASE OF CIT VS FR. MULLERS CHARITABLE INSTITUTIONS , 363 ITR 230, FOR THE PROPOSITION THAT WHENEVER THERE IS A VIOLATION U/S 11(5), THEN ONLY INCOME FROM SUCH INVESTMENT OR DEPOSIT WHICH HAS BE EN MADE IN VIOLATION OF 11(5) IS LIABLE TO BE TAXED AND THAT V IOLATION U/S 13(1)(D) DOES NOT TANTAMOUNT TO DENIAL OF EXEMPTION U/S 1 1 ON TOTAL INCOME OF THE ASSESSEE. ACCORDING TO THE LD. AR, FOR VIOL ATING SEC. 11(5), THE ENTIRE INCOME OF THE ASSESSEE-TRUST CANNOT BE ASSE SSED TO TAX AND THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 11 OF THE ACT. ITA NO.1525/10 :- 5 -: 4. NOW, WE PROCEED TO EXAMINE SECTION 11 WHICH READS AS FOLLOWS: (A) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST W HOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, TO THE EXTENT TO WHICH SUCH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA ; AND, WHERE ANY SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICA TION TO SUCH PURPOSES IN INDIA, TO THE EXTENT TO WHICH THE INCOM E SO ACCUMULATED OR SET APART IS NOT IN EXCESS OF FIFTEE N PER CENT. OF THE INCOME FROM SUCH PROPERTY ; (B) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST I N PART ONLY FOR SUCH PURPOSES, THE TRUST HAVING BEEN CREATED BE FORE THE COMMENCEMENT OF THIS ACT, TO THE EXTENT TO WHICH SU CH INCOME IS APPLIED TO SUCH PURPOSES IN INDIA ; AND WHERE AN Y SUCH INCOME IS FINALLY SET APART FOR APPLICATION TO SUCH PURPOSES IN INDIA, TO THE EXTENT TO WHICH THE INCOME SO SET APA RT IS NOT IN EXCESS OF FIFTEEN PER CENT. OF THE INCOME FROM SUCH PROPERTY ; SEC. 13(1)(C) OF THE ACT READS AS FOLLOWS: SECTION 11 NOT TO APPLY IN CERTAIN CASES (1) NOTHING CONTAINED IN SECTION 11 OR SECTION 12 S HALL OPERATE SO AS TO EXCLUDE FROM THE TOTAL INCOME OF THE PREVI OUS YEAR OF THE PERSON IN RECEIPT THEREOF- (C) IN THE CASE OF A TRUST FOR CHARITABLE OR RELIGI OUS PURPOSES OR A CHARITABLE OR RELIGIOUS INSTITUTION, ANY INCOME THE REOF- (I) IF SUCH TRUST OR INSTITUTION HAS BEEN CREATED O R ESTABLISHED AFTER THE COMMENCEMENT OF THIS ACT AND UNDER THE TE RMS OF THE TRUST OR THE RULES GOVERNING THE INSTITUTION, ANY P ART OF SUCH INCOME ENURES, OR (II) IF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION (WHENEVER CREATED OR ESTABLISHED) IS DU RING THE PREVIOUS YEAR USED OR APPLIED, DIRECTLY OR INDIRECT LY FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB-SECTION (3 ) : PROVIDED THAT IN THE CASE OF A TRUST OR INSTITUTION CREATED OR ESTAB- LISHED BEFORE THE COMMENCEMENT OF THIS ACT, THE PRO VISIONS OF SUB-CLAUSE (II) SHALL NOT APPLY TO ANY USE OR APPLI CATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BENEFIT OF ANY PERSON REFERRED TO IN SUB-SECTION (3), IF SUCH USE OR APPLICATION IS B Y WAY OF ITA NO.1525/10 :- 6 -: COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY RULE GOVERNING THE INSTITUTION : PROVIDED FURTHER THAT IN THE CASE OF A TRUST FOR RE LIGIOUS PURPOSES OR A RELIGIOUS INSTITUTION (WHENEVER CREATED OR EST ABLISHED) OR A TRUST FOR CHARITABLE PURPOSES OR A CHARITABLE INSTI TUTION CREATED OR ESTABLISHED BEFORE THE COMMENCEMENT OF THIS ACT, TH E PROVISIONS OF SUB-CLAUSE (II) SHALL NOT APPLY TO ANY USE OR AP PLICATION, WHETHER DIRECTLY OR INDIRECTLY, OF ANY PART OF SUCH INCOME OR ANY PROPERTY OF THE TRUST OR INSTITUTION FOR THE BENEFI T OF ANY PERSON REFERRED TO IN SUB-SECTION (3), IN SO FAR AS SUCH U SE OR APPLICATION RELATES TO ANY PERIOD BEFORE THE 1ST DAY OF JUNE, 1 970 ; 5. AS PER SEC. 13, THE BENEFIT OF EXEMPTION FROM INCOM E TAX IS NOT AVAILABLE IF ANY PART OF THEIR INCOME OR PROPER TY ENURES OR IS, DURING THE PREVIOUS YEAR, APPLIED, DIRECTLY OR INDI RECTLY, FOR THE BENEFIT OF THE AUTHOR, FOUNDER, SUBSTANTIAL CONTRIBUTOR OR RELATIVE AFORESAID OR FOR THE BENEFIT OF ANY CONCERN IN WHICH ANY SUCH AU THOR, FOUNDER, SUBSTANTIAL CONTRIBUTOR OR RELATIVE HAS SUBSTANTIAL INTEREST. THE EXEMPTION FROM TAX WILL BE DENIED ONLY IF THEIR INC OME IS APPLIED FOR THE BENEFIT OF THE AUTHOR, FOUNDER ETC. OTHERWISE T HAN IN COMPLIANCE WITH A MANDATORY TERM OF THE TRUST OR A MANDATORY R ULE GOVERNING THE INSTITUTION. THE REQUIREMENTS OF SEC. 13(1)(C)(II) IS THAT THE TRUST SHOULD APPLY THE FUNDS IN A CONCERN IN WHICH THEY T HEMSELVES ARE INTERESTED, IF THERE WAS A MANDATORY PROVISION IN T HE TRUST DEED FOR SUCH A PURPOSE. SUCH A MANDATE IN THE TRUST DEED S HOULD HAVE EXISTED AND COULD NOT HAVE BEEN BROUGHT IN BY AMENDING THE TRUST DEED AT A LATER STAGE AFTER THAT CRUCIAL DATE, EVEN IF THE TR UST DEED AUTHORIZED THE ITA NO.1525/10 :- 7 -: TRUSTEES TO AMEND THE TRUST DEED TO BRING IN THE MA NDATORY CONDITION OR REQUIREMENT FOR THEM TO INVEST FUNDS OF THE TRUS T IN A CONCERN IN WHICH THEY MIGHT BE INTERESTED. IN IS ADMITTED FAC T IN THIS CASE THAT THERE IS A VIOLATION OF SEC. 13(1)(C) OF THE ACT AS THE ASSESSEE INVESTED FUNDS IN A LIMITED COMPANY WHERE THE TRUSTEE IS THE MANAGING DIRECTOR AND HIS WIFE IS A DIRECTOR. BEING SO, PLACING RELI ANCE ON THE JUDGMENT OF SUPREME COURT IN THE CASE OF CIT VS RATTAN TRUST , 227 ITR 356 AND THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS NAGARATHU VAISIYARGAL SANGAM, 246 ITR 164, WE HOLD THAT THE ASSESSING OFFICER WAS CORRECT IN INVOKING THE PROVI SIONS OF SEC. 13(1)(C) OF THE ACT AND DENYING EXEMPTION TO THE A SSESSEE U/S 11 OF THE ACT. THE ASSESSEE RELIED ON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF SHETH MAFATLAL GAGALBHAI FOUNDATION TRUST (SUPRA) WHICH CANNOT BE CONSIDERED IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGMENT WHICH IS AGAINST THE ASSESSEE. 6. THE NEXT CONTENTION OF THE ASSESSEE IS THAT ONLY T HAT PORTION OF INCOME I.E CAPITAL GAIN TO BE CONSIDERED FOR TAX IN TERMS OF SEC. 112 OF THE ACT AT MAXIMUM MARGINAL RATE AS PROPOSED BY THE ASSESSING OFFICER. IN OUR OPINION, THIS ARGUMENT OF THE ASS ESSEE IS MISPLACED. SEC. 164(2) OF THE ACT READS AS FOLLOWS: (2) IN THE CASE OF RELEVANT INCOME WHICH IS DERIVE D FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES, OR WHICH IS OF THE NATURE REFERRED TO IN SUB-CLAUSE(IIA) OF CLAUSE(24) OF SECTION 2, OR WHICH IS OF THE NATU RE REFERRED TO IN ITA NO.1525/10 :- 8 -: SUB-SECTION(4A) OF SECTION 11, TAX SHALL BE CHARGED ON SO MUCH OF THE RELEVANT INCOME AS IS NOT EXEMPT UNDER SECTI ON 11 OR SECTION 12, AS IF THE RELEVANT INCOME NOT SO EXEMPT WERE THE INCOME OF AN ASSOCIATION OF PERSONS: PROVIDED THAT IN A CASE WHERE THE WHOLE OR ANY PART OF THE RELEVANT INCOME IS NOT EXEMPT UNDER SECTION 11 OR S ECTION 12 BY VIRTUE OF THE PROVISIONS CONTAINED IN CLAUSE(C) OR CLAUSE(D) OF SUB-SECTION(1) OF SECTION 13, TAX SHALL BE CHARGED ON THE RELEVANT INCOME OR PART OF RELEVANT INCOME AT THE MAXIMUM MA RGINAL RATE. 7. THE PROVISION OF SECTION 164(2) IS CONCERNED WITH TAXABILITY OF INCOME (I) WHICH IS DERIVED FROM PROPERTY HELD U NDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES OR (II) IN THE FOR M OF VOLUNTARY CONTRIBUTION RECEIVED BY THE TRUST COVERED BY SEC. 2(24)(IIA), OR (III) THE NATURE REFERRED TO IN SEC. 11(4A). THE INCOME OF S UCH TRUST WHICH IS NOT EXEMPT U/S 11 OR SEC. 12 OF THE ACT SHALL BE CH ARGED TO TAX AS IF SUCH EXEMPT INCOME IS THE INCOME OF AN AOP. THE PRO VISO TO SEC. 164(2) INSERTED WITH EFFECT FROM 1.4.1985 ENJOINS T HAT WHERE THE NON- EXEMPT PORTION OF RELEVANT INCOME ARISES AS A CONSE QUENCE OF THE CONTRAVENTION OF THE PROVISIONS OF SEC. 13(1)(C) O R (D), THE SAID INCOME WOULD BE SUBJECT TO TAX AT THE MAXIMUM MARGI NAL RATE. 8. ACCORDING TO THE LD. REPRESENTATIVE FOR THE ASSE SSEE, IN VIEW OF THE JUDGMENT OF THE KARNATAKA HIGH COURT IN THE CASE OF FR. MULLERS CHARITABLE INSTITUTIONS(SUPRA), THE RATE AP PLICABLE AS PER SEC. 112 TO BE APPLIED. THIS JUDGMENT OF KARNATAKA HIGH COURT IS DELIVERED ITA NO.1525/10 :- 9 -: IN THE CONTEXT OF INVOKING PROVISIONS OF U/S 263 OF THE ACT AND DENYING BENEFIT U/S 11 OF THE ACT. THE HIGH COURT ADJUDICATED THE ISSUE AND OBSERVED THAT THE ASSESSING OFFICER HAS TAKEN ONE POSSIBLE VIEW THAT ONLY INCOME FROM SUCH INVESTMENT OR DEPOS ITS WHICH HAS BEEN MADE IN VIOLATION OF SEC. 11(5) IS TO BE TAXED AND SUCH VIOLATION OF SEC. 11 DOES NOT TANTAMOUNT TO DENIAL OF EXEMPTI ON U/S 11 OF THE ACT AND THE ENTIRE INCOME OF THE ASSESSEE-TRUST CA NNOT BE ASSESSED FOR TAX. HE ALSO RELIED ON THE ORDER OF THE MUMBAI TRIBUNAL IN THE CASE OF JAIN JAMSHETJI TATA TRUST VS JT. DIT(E), 148 ITD 388, WHEREIN OBSERVED THAT WHEN THE SHORT TERM CAPITAL GAIN ARI SING FROM THE SALE OF SHARES SUBJECTED TO STT IS CHARGEABLE TO TAX AT 15% THEN THE MAXIMUM MARGINAL RATE ON SUCH INCOME CANNOT EXCEED THE MAXIMUM RATE PROVIDED UNDER THE ACT. ACCORDINGLY, THE TRIB UNAL OBSERVED THAT SHORT TERM CAPITAL GAIN ON SALE OF SHARES ALREADY S UBJECTED TO STT, IS CHARGEABLE TO TAX AT MAXIMUM MARGINAL RATE WHICH CA NNOT EXCEED THE RATE PROVIDED U/S 111A OF THE ACT INCOME-TAX ACT. THIS DECISION WAS FOLLOWED BY THE MUMBAI BENCH IN THE CASE OF MAHINDR A & MAHINDRA EMPLOYEES STOCK OPTION TRUST VS ADDL. CIT, I.T.A.NO . 2389/MUM/2015 DATED 21.10.2015, AND OBSERVED THAT CAPITAL GAIN IS TO BE ASSESSED BY APPLYING THE PROVISIONS OF SEC. 112 EVEN IF THE INC OME IS ASSESSED AS PER SEC. 164 OF THE ACT. FURTHER, WE FIND THAT IN BOTH THESE DECISIONS, THE MUMBAI BENCH HAS NOT CONSIDERED THE MEANING OF MAXIMUM ITA NO.1525/10 :- 10 -: MARGINAL RATE AS DEFINED IN SEC. 2(29C) OF THE ACT WHICH READS AS FOLLOWS: 2(29C) MAXIMUM MARGINAL RATE MEANS THE RATE OF I NCOME- TAX(INCLUDING SURCHARGE ON INCOME-TAX, IF ANY) APPL ICABLE IN RELATION TO THE HIGHEST SLAB OF INCOME IN THE CASE OF AN INDIVIDUAL[ASSOCIATION OF PERSONS OR, AS THE CASE M AY BE, BODY OF INDIVIDUALS] AS SPECIFIED IN THE FINANCE ACT OF THE RELEVANT YEAR] 9. BEING SO, THE ABOVE TWO DECISIONS OF THE MUMBAI BEN CH CANNOT BE SAID THAT THEY LAID DOWN CORRECT PROPOSIT ION OF LAW. HENCE, THESE ARE NOT CONSIDERED. THEREFORE, THE BENEFIT OF SEC. 112 OF THE ACT SO AS TO ASSESS THE GAIN FROM THE TRANSFER OF T HE CAPITAL ASSET CANNOT BE GIVEN TO THE DEEMED AOP. ACCORDINGLY, TH IS APPEAL OF THE REVENUE IS ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2016, AT CHENNAI. SD/- SD/- ( . ! ) (G. PAVAN KUMAR) ' / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER !' / CHENNAI #$ / DATED: 20 TH JANUARY, 2016 RD ITA NO.1525/10 :- 11 -: $%&& '(&)( / COPY TO: & 1 . / APPELLANT 4. & * / CIT 2. / RESPONDENT 5. (+,& - / DR 3. & *&./ / CIT(A) 6. ,0&1 / GF