M/s B.N.P. Enterprises, Kolhapur V. ITO,Wd. 1(2), Kolhapur

ITA 1594/PUN/2004

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2558 (ITAT-PUNE)
• Duration Of Justice: 11 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 1992-1993
• Appeal Filed On: 17-11-2004
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH K R
• Keywords: Capital asset; Reassessment proceedings
• Section: 143(3); 234B; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1594/PN/2004 %' ( ')( / ASSESSMENT YEAR : 1992-93 M/S. B.N.P. ENTERPRISES, AT POST AMBEWADI, TAL. KARVEER, KOLHAPUR ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, WARD 1(2), KOLHAPUR / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI SUBHASH K.R. / DATE OF HEARING : 11-01-2016 / DATE OF PRONOUNCEMENT : 09-03-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS), KOLHAPUR DATED 27-09- 2004 FOR THE ASSESSMENT YEAR 1992-93. THE ONLY ISSUE AGITATED BY THE ASSESSEE BEFORE THE TRIBUNAL IS THE YEAR OF TAXABILITY OF CAPITAL GAINS. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS A PARTNERSHIP FIRM. THE ASSESSEE HAD NOT FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 1992-93 U/S. 139 OF THE INCOME TAX 2 ITA NO. 1594/PN/2004, A.Y. 1992-93 ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). DURING T HE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 1998-99, TH E ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD ENTERED INTO A D EVELOPMENT AGREEMENT IN RESPECT OF PROPERTY ADMEASURING 28000 SQ. FT. COMPRISING IN CTS NO. 1031-K 2/E WARD, KOLHAPUR WITH M/S. PATSON DEV ELOPERS ON 09-10-1991. ACCORDING TO DEVELOPMENT AGREEMENT, CO NSIDERATION WAS FIXED AT ` 21,25,000/-. THE ASSESSEE HAD RECEIVED SUBSTANTIAL SUM I.E. ` 15,00,000/- FROM THE TOTAL CONSIDERATION THROUGH CHEQUE D ATED 09-10-1991 AT THE TIME OF EXECUTION OF DEVELOPMENT AGREE MENT. THE REMAINING AMOUNT OF ` 6,25,000/- WAS TO BE PAID ON OR BEFORE 30-06-1992. REASSESSMENT PROCEEDINGS WERE INITIATED AG AINST THE ASSESSEE FOR ASSESSMENT YEAR 1992-93. NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE ON 06-05-2001. IN RESPONSE TO NOTICE, TH E ASSESSEE FILED RETURN OF INCOME ON 20-01-2003 DECLARING NIL INCOME. THE ASSESSING OFFICER HELD THAT THE CAPITAL GAIN ARISING FROM THE SALE OF DE VELOPMENT RIGHTS VIDE AGREEMENT DATED 09-10-1991 ARE LIABLE TO BE TAXED IN THE ASSESSMENT YEAR 1992-93 AND COMPUTED THE LONG TERM CAPITAL GAIN AS ` 5,65,000/-. THE ASSESSING OFFICER ALSO LEVIED INTEREST U/S. 23 4A AND 234B OF THE ACT. ACCORDING TO THE ASSESSEE THE CAPITAL GAIN ARISING FROM THE TRANSFER OF DEVELOPMENT RIGHTS IS TAXABLE IN THE ASSESSMENT YEAR 1998-99 THAT IS WHEN THE PHYSICAL POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE DEVELOPER AND CONFIRMATION DEED DATE D 04-04-1997 WAS EXECUTED. AGGRIEVED BY THE ASSESSMENT ORDER DATED 12-03-2003 P ASSED U/S. 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). BEFORE THE FIRST AP PELLATE AUTHORITY, THE ASSESSEE CHALLENGED THE PROCEEDINGS INITIATE D U/S. 147 R.W.S. 148, AS WELL AS THE ASSESSMENT ORDER ON MERITS. TH E COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE APPEAL OF THE 3 ITA NO. 1594/PN/2004, A.Y. 1992-93 ASSESSEE IN TOTO. AGAINST THE ORDER OF COMMISSIONER OF IN COME TAX (APPEALS), THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. 3. THE ASSESSEE HAS RAISED FIVE GROUNDS OF APPEAL. THE G ROUND NOS. 1 AND 3 RELATES TO THE ADDITION OF THE CAPITAL GAINS IN THE ASSESSMENT YEAR 1992-93. IN GROUND NO. 2 THE ASSESSEE HAS CHALLE NGED THE PROCEEDINGS INITIATED U/S. 147 R.W.S. 148 OF THE ACT. IN GR OUND NO. 4 THE ASSESSEE HAS ASSAILED THE CHARGING OF INTEREST U/S. 2 34A AND 234B OF THE ACT AND THE GROUND NO. 5 IS GENERAL IN NATURE. 4. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE ERRED IN COMING TO THE C ONCLUSION THAT THE CAPITAL GAINS ARISING FROM THE TRANSFER OF DEVELOPMENT R IGHTS IS ASSESSABLE IN THE ASSESSMENT YEAR 1992-93. IN FACT, THE CORRECT ASSESSMENT YEAR FOR LEVYING TAX ON CAPITAL GAINS IS ASSESS MENT YEAR 1998-99. IT WAS DURING THE PERIOD RELEVANT TO ASSESSME NT YEAR 1998-99 DEVELOPMENT AGREEMENT WAS REGISTERED AND THE POSSESSIO N OF THE LAND WAS HANDED OVER TO THE DEVELOPER. THE LD. COUNSEL FOR TH E ASSESSEE FILED WRITTEN SUBMISSIONS WHICH ARE AS UNDER: THE ASSESSMENT YEAR INVOLVED IS A. Y. 1992-1993. 1) THOUGH BANK OF MAHARASHTRA HAD FILED CIVIL SUIT AGAINST M/S. SAI CEMENT PIPES & CONCRETE WORKS FOR RECOVERY OF LOAN AMOUNT THE SAID SUIT WAS COMPROMISED OUT OF COURT. THE PURSIS WAS FILED BY THE PARTIES BEFORE THE COURT. THE HON'BLE CIVIL COU RT ACCEPTED THE REQUEST OF THE PARTIES. THE NECESSARY ANNEXURES ENCLOSED. (PAGE 41 AND 42). 2) THE SANCHEKAR PATRA THAT IS SATHEKHAT (AGREEMENT TO SALE) WAS EXECUTED BETWEEN PARTIES VIZ. 1) M/S. PATSON DEVELO PERS, 2) AND M/S. BNP ENTERPRISES THROUGH ITS PARTNERS SHRI YESHWANTR AO BAPUSAHEB METE-PAWAR, 3) SHRI DILIP BAPUSAHEB METE-PAWAR AND 4) SMT VIMALABAI BAPUSAHEB METE-PAWAR. 3) THE PROPERTY IN THE AGREEMENT DESCRIBED AS S. NO . 1031/K/2 WHICH WAS THE SUBJECT MATTER OF DEVELOPMENT AGREEMENT BELONGE D TO THE APPELLANT- 4 ITA NO. 1594/PN/2004, A.Y. 1992-93 FIRM. THE FULL DESCRIPTION AND AREA OF THE PLOT HAS BEEN MENTIONED IN THE AGREEMENT. THE SAID PROPERTY WAS OFFERED AS COLLATE RAL SECURITY FOR LOAN OF M/S. SAI CEMENT CONSTRUCTION, KOLHAPUR. THE PART NERS OF BOTH THE FIRMS WERE COMMON SHRI BAPUSABEB N. PAWAR WHO WAS A LSO INITIALLY THE PARTNER IN BOTH THE FIRMS DIED IN THE YEAR 1983 . THE LOAN WAS OBTAINED IN THE YEAR 1977. SHRI BAPUSAHEB MATE PAWA R HAD OFFERED IN HIS LIFE TIME THE SAID PROPERTY AS COLLATERAL SECUR ITY TO BANK LOAN. 4) AFTER THE MATTER WAS SETTLED OUT OF COURT THE BA NK ISSUED DISCHARGE CERTIFICATE (PAGE 18 OF THE PAPER BOOK) M ENTIONED AS UNDER: BANKS ATTACHMENT ON FOLLOWING PROPERTIES DISCHARGE D 1031/1/K/2, E, WARD SITUATED AT SHIVAJI UDYAMNAGAR, KOLHAPUR. THIS PROPERTY THE DESCRIPTION OF WHICH HAS BEEN MORE SPECIFICALLY MENTIONED IN THE DEVELOPMENT AGR EEMENT BELONGED TO THE APPELLANT-ASSESSEE M/S B. N. P. ENT ERPRISES.' 5) THE RECEIPT ISSUED (PAGE NO. 19 OF PAPER BOOK) A LSO MENTIONS PROPERTY AS CS NO. 1031/1/K/2 AREA 28000 SQ. FT. WH ICH BELONGS TO THE APPELLANT FIRM. 6) THE COURT RECORD (AT PAGE 42 OF THE PAPER BOOK) ALSO MENTIONS AS UNDER: PLAINTIFF (I.E. BANK OF MAHARASHTRA) PURSIS FOR WI THDRAWING THIS SUIT. ORDER PASSED BELOW EXT. 1 (EXT. 1 MENTIONED AT PAGE 43 IS THE EXHIBIT NO.1 OF SCS NO. 427/89)' THE ORDER PASSED BELOW EXH. 1. THE SUIT IS DISMISS ED AS WITHDRAWN AS SETTLED OUT OF COURT'. 7) AS PER REVENUE RECORDS (PLAIN CARD) DT. 25-04-19 73 THE PROPERTY WAS RECORDED IN THE NAME OF M/S B. N. P. E NTERPRISES. 8) THE AGREEMENT EXECUTED BETWEEN THE PARTIES FOR D EVELOPMENT IS INCLUDED IN THE PAPER BOOK AT PAGE NO.8 TO 17. (A) AND WHEREAS THE OWNERS ARE DESIROUS TO GRANT TH E LICENCE (RIGHT) TO DEVELOP THE SAID PROPERTY TO THE DEVELOP ER AND THE DEVELOPER IS ALSO READY AND WILLING TO DEVELOP THE SAME UNDER LICENCE FROM THE OWNERS. (B) AND WHEREAS THE OWNERS HAD GIVEN TO THE DEVELOP ER COPIES OF ALL THE DOCUMENTS OF TITLE IN HIS POSSESSION OF SHOWN THE ORIGINALS THEREOF AND THE DEVELOPER AFTER COPIES RE QUIRED HAVING 5 ITA NO. 1594/PN/2004, A.Y. 1992-93 SCRUTINIZED THE TITLE OF THE OWNERS THOUGH HIS ADVO CATE HAS SATISFIED HIMSELF ABOUT THE TITLE OF THE OWNERS BEI NG CLEAN, CLEAR MARKETABLE AND WITHOUT ANY ENCUMBRANCE OR IMPEDIMEN T WHATEVER. (C) THAT THE OWNER HEREBY AGREES TO GRANT, TO THE D EVELOPER A LICENCE (RIGHT) TO DEVELOP THE SAID PROPERTY AT HIS OWN COST AND RESPO NSIBILITY BY CONSTRUCTING A NEW BUILDING THEREON AS PER THE PLAN AND SPECIFICATIONS APPROVED BY THE MUNICIPAL AUTHORITY. THAT THE DEVELOPER SHALL PAY AND AGREES TO PAY 21,0 0,000/- (RUPEES TWENTY ONE LAKH ONLY) TO THE OWNER AS THE S OLE CONSIDERATION TOWARDS THIS AGREEMENT FOR LAND DEVEL OPMENT OUT OF WHICH AN AMOUNT OF RS. 15,00,000/- (RUPEES FIFTE EN LAKH ONLY) IS TO BE PAID AT THE TIME OF EXECUTION OF THI S AGREEMENT AND THE REMAINING AMOUNT AS NOTED FOLLOWS IS TO BE PAID AS SPECIFIED SEPARATELY. (D) ON EXECUTION OF THIS AGREEMENT THE DEVELOPER SH ALL BE ENTITLED :- I) IF NECESSARY, TO OBTAIN NECESSARY PERMISSION FOR TH E DEVELOPMENT OF THE PROVISION OF URBAN LAND CEILING AND REGULATION ACT, 1976. II) TO PREPARE, AMEND, TO THE APPROVED PLANS (IF THEY D EEM NECESSARY) AND TO GET THE SAME APPROVED FROM THE MU NICIPAL CORPORATION AND LOR OTHER CONCERNED AUTHORITIES. III) TO COMMENCE AND COMPLETE THE DEVELOPMENT OF THE SAID PROPERTY THEMSELVES OR THROUGH THEIR CONTRACTORS AT THEIR OWN COST AND RISK AS PER THE PLANS APPROVED BY THE MUNI CIPAL AUTHORITIES WITH AMENDMENTS THERETO, IF ANY. IV) TO DISPOSE OFF, ON OWNERSHIP BASIS, THE SHOP , OFFICE, RESIDENTIAL OR GODOWN PREMISES OF THE BUILDING TO B E CONSTRUCTED ON THE SAID PROPERTY, TOGETHER WITH SAI D PROPERTY, AT SUCH PRICE AS THE DEVELOPER MAY DEEM F IT. (E) HOWEVER THE OWNERS SHALL ALWAYS REMAIN IN POSSE SSION OF THE SAID PLOT AND SHALL BE ENTITLED TO THE INSPE CTION OF THE CONSTRUCTION WORK. NOTHING CONTAINED HEREIN SHA LL MEAN OR DEEMED TO MEAN TRANSFER OF POSSESSION OF TH E SAID PROPERTY BY THE OWNERS TO THE DEVELOPER AND TH E POSSESSION WILL BE TRANSFERRED ONLY AT THE TIME CONVEYANCE. 9) IN A RECENT ORDER OF THE HON'BLE ITAT MUMBAI BEN CH (THE 6 ITA NO. 1594/PN/2004, A.Y. 1992-93 REPORTED JUDGMENT WAS RECEIVED ON 20-01-2015 ONLY R EPORTED AS DILIP ANAND VAZIRANI V. ITO (2015) 167 TTJ (MUM) 19 4 (COPY ENCLOSED) (A. Y. 2001-2002) IT HAS BEEN HELD 'ASSES SEE HAVING GIVEN ONLY LICENCE TO THE DEVELOPER TO ENTER INTO H IS PROPERTY PURSUANT TO THE DEVELOPMENT AGREEMENT AND NOT POSSESSION THEREOF IN THE YEAR RELEVANT TO A. Y . 2001- 02 THE DEVELOPER HAVING NOT STARTED THE DEVELOPMENT WORK IN THAT YEAR, THE TRANSFER OF PROPERTY DID NOT TAKE PLACE ON THE DATE OF EXECUTION OF THE AGREEMENT ON 25 TH SEPTEMBER 2000 AND ACCORDINGLY THE CAPITAL GAIN COU LD NOT BE ASSESSED IN ASSTT. YEAR 2001-2002. 10) IN THE PRESENT CASE ALSO THE DEVELOPER HAD NOT STARTED THE DEVELOPMENT WORK AND THE ASSESSEE HAS HAD ONLY GRAN TED THE LICENCE TO ENTER THE LAND AND THE POSSESSION WAS NO T GIVEN NO CAPITAL GAIN WAS ASSESSABLE IN A. Y. 1992-93. AS DECLARED GROUND NO. 2 IS NOT PRESSED. SD/- (M. K. KULKARNI) ADVOCATE DT. 20-01-2015 5. ON THE OTHER HAND SHRI SUBHASH K.R. REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ORDER OF COMMISS IONER OF INCOME TAX (APPEALS). THE LD. DR SUBMITTED THAT THE ASS ESSEE ENTERED INTO AN AGREEMENT WITH M/S. PATSON DEVELOPERS (HEREINAFTER REFERRED TO AS THE DEVELOPER) ON 09-11-1991. AS PER THE AGREEME NT, TOTAL CONSIDERATION FOR TRANSFER OF RIGHTS IS ` 21,25,000/- AND THE ASSESSEE HAD RECEIVED SUBSTANTIAL SUM I.E. ` 15,00,000/- OUT OF THE TOTAL AGREED CONSIDERATION AT THE TIME OF EXECUTION OF THE AGREEMENT ITSELF. TH ERE ARE CERTAIN COVENANTS IN THE AGREEMENT WHICH CLEARLY SHOW T HAT THE DEVELOPER HAS ABSOLUTE RIGHT TO DISPOSE OF SHOP, OFFICE, RESID ENTIAL PREMISES IN THE BUILDING TO BE CONSTRUCTED ON THE LAND IN QUESTION. THE ASSESSEE HAD EXECUTED IRREVOCABLE POWER OF ATTORNEY IN FAVOUR OF THE DEVELOPER. AS PER THE AGREEMENT THE DEVELOPER HAS THE RIGHT TO TAKE 7 ITA NO. 1594/PN/2004, A.Y. 1992-93 LOAN AND MORTGAGE THE PROPERTY. THE LIABILITY TO PAY TAXE S IN RESPECT OF PROPERTY FROM THE DATE OF AGREEMENT IS THAT OF THE DEVE LOPER. THIS ALL SHOWS THAT THE DEVELOPER IS DE FACTO OWNER OF THE LAND. THERE IS NO CLAUSE IN THE AGREEMENT WHICH SHOWS THAT SUBSEQUENTLY ANY CONFIRMATION DEED IS REQUIRED TO BE EXECUTED BETWEEN THE PARTIES. THE ASSESSEE HAS INCORPORATED CLAUSE FOR RETAINING POSSESSION OF THE PLOT JUST TO CIRCUMVENT THE PROVISIONS OF THE ACT AND DELAY T AX LIABILITY. THE LD. DR PRAYED FOR DISMISSING THE APPEAL OF THE ASSESSEE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DOCUMENTS FILED BY THE ASSESSEE IN THE FORM OF PAPER BOOK AND WRITTEN ARGUMENTS FURNISHED BY THE LD. C OUNSEL FOR THE ASSESSEE. THE MAIN ISSUE IN THE APPEAL IS THE YEAR OF TA XABILITY OF CAPITAL GAIN ARISING FROM TRANSFER OF DEVELOPMENT RIGHTS. THE ASSESSEE WAS THE OWNER OF LAND ADMEASURING 28000 SQ. FT. COMPRISING IN CTS NO. 1031-K 2/E WARD, KOLHAPUR. THE ASSESSEE HAD GIVEN THE SAID PROPERTY AS COLLATERAL SECURITY TO SECURE THE LOAN TAKEN BY THE G ROUP CONCERN I.E. M/S. SAI CEMENT PIPES & CONCRETE WORKS AND M/S. SAHYADR I METAL AND COMPRESSED AIR. THE PARTNERS OF THE ASSESSEE FIRM AND O THER GROUP CONCERNS ARE COMMON. THE GROUP CONCERNS HAD TAKEN LO AN FROM BANK OF MAHARASHTRA. THE BANK HAD FILED SUIT FOR RECOVERY AGAIN ST THE BORROWERS AND THE ASSESSEE. AFTER THE PAYMENT OF ENTIR E OUTSTANDING AMOUNT TO THE BANK, THE BANK RELEASED THE PROPERTY INC LUDING THE PROPERTY UNDER REFERENCE IN THE PRESENT APPEAL. IN THIS REGARD, THE ASSESSEE HAS FILED LETTER FROM BANK OF MAHARASHTRA DATED 09-10-1991 (AT PAGE 18 OF THE PAPER BOOK). ON THE SAME SAY I.E. 09-10-1991, THE ASSESSEE ENTERED INTO AN AGREEMENT (AT PAGES 8 TO 17 OF THE PAPER BOOK) WITH M/S. PATSON DEVELOPERS TO DEVELOP THE PROPERTY UNDER REFERENCE BY CONSTRUCTING NEW BUILDING CONSISTING OF FLATS, 8 ITA NO. 1594/PN/2004, A.Y. 1992-93 COMMERCIAL SHOPS / RESIDENTIAL UNITS / GARAGES / GODOWNS / PARKING ETC. AFTER DEMOLISHING THE EXISTING STRUCTURE. AS PER DEVE LOPMENT AGREEMENT, THE ASSESSEE GRANTED M/S. PATSON DEVELOPER S LICENSE TO DEVELOP THE PROPERTY AT ITS OWN COST AND RESPONSIBILITY FO R A CONSIDERATION OF ` 21,25,000/-, OUT OF WHICH ` 15,00,000/- WAS PAID TO THE ASSESSEE THROUGH CHEQUE AT THE TIME OF EXECUTION OF AGREEMENT. THE REMAINING AMOUNT OF ` 6,25,000/- WAS TO BE PAID ON OR BEFORE 30-06-1992. 7. A CLOSE SCRUTINY OF THE AGREEMENT SHOWS THAT THE DE VELOPER AFTER EXECUTION OF AGREEMENT SHALL BE LIABLE FOR PAYMENT OF ALL TA XES IN RESPECT OF PROPERTY. THE ASSESSEE EXECUTED IRREVOCABLE POWER OF ATTORNEY IN FAVOUR OF THE DEVELOPER. AS PER CLAUSE 5 OF T HE AGREEMENT ALL NECESSARY PERMISSIONS AND APPROVALS FROM VARIOUS AUTH ORITIES WERE TO BE OBTAINED BY THE DEVELOPER INCLUDING COMMENCEMENT AND COMPLETION CERTIFICATES. THE DEVELOPER HAD THE RIGHT TO DIS POSE OFF, ON OWNERSHIP BASIS, THE SHOP, OFFICE, RESIDENTIAL OR GODOWN PREMI SES OF THE BUILDING TOGETHER WITH SAID PROPERTY, AT SUCH PRICE AS THE DEVELOPER MAY DEEM FIT. A FURTHER PERUSAL OF CLAUSE 8 OF THE AGREEMENT SHO WS THAT THE DEVELOPER COULD RAISE LOAN FROM BANKS, FOR THE CONSTRUCTIO N OF BUILDING AND EVEN EXECUTE MORTGAGE DEED IN RESPECT OF LAND IN FAO VUR OF BANK. HERE WE WOULD LIKE TO REPRODUCE THE RELEVANT EXTRACT OF CLAUSE 5(D) WHICH EXPRESSLY PERMITS THE DEVELOPER TO DISPOSE OFF THE LAND AS WELL AS THE BUILDING CONSTRUCTED THEREON: A) XXXXXXXXXX B) XXXXXXXXXX D) TO DISPOSE OFF, ON OWNERSHIP BASIS, THE SHOP, OFF ICE, RESIDENTIAL OR GODOWN PREMISES OF THE BUILDING TO BE C ONSTRUCTED ON THE SAID PROPERTY, TOGETHER WITH SAID PROPERTY, AT SUC H PRICE AS THE DEVELOPER MAY DEEM FIT. 9 ITA NO. 1594/PN/2004, A.Y. 1992-93 THE RELEVANT EXTRACT OF THE CLAUSE 8 AUTHORIZING DEVELOPE R TO RAISE LOAN BY MORTGAGING THE LAND IS REPRODUCED HERE-IN-UNDER: 8) THE DEVELOPER/LICENCY MAY RAISE LOAN FROM BANKS , TOWARD THE CONSTRUCTION OF THE BUILDING ACCORDING TO PLANS APP ROVED AND SANCTIONED BY THE LOCAL AUTHORITIES, UNDER ANY OF THE LAW IN F ORCE, ANY MAY EXECUTE A MORTGAGE DEED OR MEMORANDUM OF EQUITABLE MORTGAGE I N RESPECT OF AFORESAID PROPERTY IN FAVOUR OF ANY BANK AND IN SUC H EVENT, THE OWNER SHALL IF NECESSARY, AFFORD HER CONSENT UNEQUIVOCALL Y TO THE RAISING OF SUCH LOAN FROM THE BANK AND SHALL DO IN GENERAL, ALL THA T IS NECESSARY IN THAT BEHALF, IN THE ABOVE EVENT ONLY THE PROPERTY WILL B EAR THE CHARGE AND THE OWNER SHALL NOT BE OR DEEMED TO BE A BORROWER AND S HALL NOT BE PERSONALLY LIABLE NOT HIS OTHER PROPERTIES WILL BE LIABLE FOR REPAYMENT OF THE SAID LOAN. THE BANK SHALL NOT BE ENTITLED TO P ROCEED AGAINST THE OWNER FOR RECOVERY OF ANY AMOUNT. ALSO ALL COST, C HARGES AND EXPENSES OF THE SAID MORTGAGE OR IN RELATION THERETO SHALL B E BORNE BY THE DEVELOPER. THUS, IT IS EVIDENT FROM THE TERMS AND CONDITIONS OF THE AGREEMENT THAT FOR ALL INTENT AND PURPOSE THE DEVELOPER HAD STEPPED INTO THE SHOES OF THE OWNER I.E. THE ASSESSEE. 8. THE ONLY GROUND ON THE BASIS OF WHICH ASSESSEE IS PO STPONING TAX LIABILITY TO ASSESSMENT YEAR 1998-99 IS THAT THE ASSESSE E HAD NOT HANDED OVER THE POSSESSION OF LAND TO THE DEVELOPER. WE DO NOT FIND MERIT IN THIS CONTENTION OF THE ASSESSEE. CLAUSE 12 OF THE AGREEMENT RELATES TO POSSESSION OF PLOT. ACCORDING TO CLAUSE 12 THE OWNER (ASSESSEE) SHALL ALWAYS REMAIN IN POSSESSION OF THE PLOT. P OSSESSION WILL BE TRANSFERRED AT THE TIME OF CONVEYANCE. EXCEPT FOR CLAUSE12, A PERUSAL OF THE REMAINING CLAUSES WOULD MAKE IT AMPLY CLEAR THAT THE DEVELOPER IS IN POSSESSION OF THE LAND AND HAD THE RIGHT T O DISPOSE OF THE RESIDENTIAL/COMMERCIAL UNITS ALONG WITH THE LAND IN QUEST ION. FURTHER, THE DEVELOPER HAS RIGHT TO MORTGAGE THE PROPERTY WITH B ANK. 10 ITA NO. 1594/PN/2004, A.Y. 1992-93 IT IS NOT THE CASE OF THE ASSESSEE THAT THE AGREEMEN T HAS BEEN EXECUTED FOR CONSTRUCTION OF THE BUILDING ALONE WITHOUT AS SIGNING THE RIGHTS OF MORTGAGE AND SALE OF THE LAND ALONG WITH THE BUILDING. 9. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS REFERRED TO THE PROVISIONS OF THE CLAUSE 2(47) WHICH DEFINES TRANSFER IN RE LATION TO CAPITAL ASSET UNDER THE ACT. THE HON'BLE BOMBAY HIGH CO URT IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA VS. COMMISSIONER OF INCOME TAX REPORTED AS 180 CTR (BOM) 107 HAS DEALT WITH THIS IS SUE. THE HON'BLE HIGH COURT HAS ENUNCIATED THE PRINCIPLES FOR APPLICA BILITY OF SECTION 2(47)(V) OF THE ACT. THE RELEVANT EXTRACT OF THE JU DGMENT OF HON'BLE HIGH COURT IS REPRODUCED HERE-IN-UNDER: 6. AT THE OUTSET, WE MAY POINT OUT THAT IN THIS CA SE, THE ASSESSEE DOES NOT DENY TRANSFER. THE ONLY DISPUTE IN THIS CA SE, IS WHETHER THE TRANSFER TOOK PLACE DURING THE ACCOUNTING YEAR ENDI NG MARCH 31, 1996, OR WHETHER IT TOOK PLACE DURING THE ACCOUNTING YEAR EN DING MARCH 31, 1999. IN OTHER WORDS, THE DISPUTE IS CONFINED TO THE YEAR OF CHARGEABILITY. UNDER SECTION 2(47)(V), ANY TRANSACTION INVOLVING A LLOWING OF POSSESSION TO BE TAKEN OVER OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT WOULD COME WITHIN THE AMBIT OF SECTION 2(47)(V). THAT, IN ORDER TO ATTRACT SECTION 53A, THE FOLLOWING CONDITIONS NEED TO BE FULFILLED. THERE SHOULD BE A CONTRACT FOR CONSIDERATION ; IT SHOULD BE IN WRITING ; IT SHOULD BE SIGNED BY THE TRANSFEROR ; IT SHOULD PERTAIN TO TRANSFER OF IMMOVABLE PROPERTY ; THE TRANSFEREE SHOULD HAVE TAKEN POSSESS ION OF THE PROPERTY ; LASTLY, THE TRANSFEREE SHOULD BE READY AND WILLING TO PERFORM HIS PART OF THE CONTRACT. THAT EVEN ARRANGEMENTS CONFIRMING PRI VILEGES OF OWNERSHIP WITHOUT TRANSFER OF TITLE COULD FALL UNDER SECTION 2(47)(V). SECTION 2(47)(V) WAS INTRODUCED IN THE ACT FROM THE ASSESSM ENT YEAR 1988-89 BECAUSE PRIOR THERETO, IN MOST CASES, IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT NO TRANSFER TOOK PLACE TILL EXECUTION OF THE CONVEYANCE. CONSEQUENTLY, THE ASSESSEES USED TO ENTER INTO AGRE EMENTS FOR DEVELOPING PROPERTIES WITH THE BUILDERS AND UNDER T HE ARRANGEMENT WITH THE BUILDERS, THEY USED TO CONFER PRIVILEGES OF OWN ERSHIP WITHOUT EXECUTING CONVEYANCE AND TO PLUG THAT LOOPHOLE, SEC TION 2(47)(V) CAME TO BE INTRODUCED IN THE ACT. 11 ITA NO. 1594/PN/2004, A.Y. 1992-93 IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT THERE WAS NO EFFECTIVE TRANSFER TILL GRANT OF IRREVOCABLE LICENCE. IN THIS CONNECTION, THE JUDGMENTS OF THE SUPREME COURT WERE CITED ON BEHALF OF THE AS SESSEE, BUT ALL THOSE JUDGMENTS WERE PRIOR TO INTRODUCTION OF THE CONCEPT OF DEEMED TRANSFER UNDER SECTION 2(47)(V). IN THIS MATTER, THE AGREEME NT IN QUESTION IS A DEVELOPMENT AGREEMENT. SUCH DEVELOPMENT AGREEMENTS DO NOT CONSTITUTE TRANSFER IN GENERAL LAW. THEY ARE SPREAD OVER A PER IOD OF TIME. THEY CONTEMPLATE VARIOUS STAGES. THE BOMBAY HIGH COURT I N VARIOUS JUDGMENTS HAS TAKEN THE VIEW IN SEVERAL MATTERS THA T THE OBJECT OF ENTERING INTO A DEVELOPMENT AGREEMENT IS TO ENABLE A PROFESSIONAL BUILDER/CONTRACTOR TO MAKE PROFITS BY COMPLETING TH E BUILDING AND SELLING THE FLATS AT A PROFIT. THAT THE AIM OF THESE PROFES SIONAL CONTRACTORS WAS ONLY TO MAKE PROFITS BY COMPLETING THE BUILDING AND , THEREFORE, NO INTEREST IN THE LAND STANDS CREATED IN THEIR FAVOUR UNDER SU CH AGREEMENTS. THAT SUCH AGREEMENTS ARE ONLY A MODE OF REMUNERATIN G THE BUILDER FOR HIS SERVICES OF CONSTRUCTING THE BUILDING (SEE GURU DEV DEVELOPERS V. KURLA KONKAN NIWAS CO-OPERATIVE HOUSING SOCIETY [20 00] 3 MAH LJ 131). IT IS PRECISELY FOR THIS REASON THAT THE LEGI SLATURE HAS INTRODUCED SECTION 2(47)(V) READ WITH SECTION 45 WH ICH INDICATES THAT CAPITAL GAINS IS TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO EVEN IF THE TRANSFER OF IMMOVABLE PROP ERTY IS NOT EFFECTIVE OR COMPLETE UNDER THE GENERAL LAW. IN THIS CASE THAT T EST HAS NOT BEEN APPLIED BY THE DEPARTMENT. NO REASON HAS BEEN GIVEN WHY THAT TEST HAS NOT BEEN APPLIED, PARTICULARLY WHEN THE AGREEMENT I N QUESTION, READ AS A WHOLE, SHOWS THAT IT IS A DEVELOPMENT AGREEMENT. TH ERE IS A DIFFERENCE BETWEEN THE CONTRACT ON THE ONE HAND AND THE PERFOR MANCE ON THE OTHER HAND. IN THIS CASE, THE TRIBUNAL AS WELL AS THE DEP ARTMENT HAVE COME TO THE CONCLUSION THAT THE TRANSFER TOOK PLACE DURING THE ACCOUNTING YEAR ENDING MARCH 31, 1996, AS SUBSTANTIAL PAYMENTS WERE EFFECTED DURING THAT YEAR AND SUBSTANTIAL PERMISSIONS WERE OBTAINED . IN SUCH CASES OF DEVELOPMENT AGREEMENTS, ONE CANNOT GO BY SUBSTANTIA L PERFORMANCE OF A CONTRACT. IN SUCH CASES, THE YEAR OF CHARGEABILITY IS THE YEAR IN WHICH THE CONTRACT IS EXECUTED. THIS IS IN VIEW OF SECTION 2( 47)(V) OF THE ACT. BEFORE US, IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT THE DATE ON WHICH POSSESSION IS PARTED WITH BY THE TRANSFEROR I S THE DATE WHICH SHOULD BE TAKEN INTO ACCOUNT FOR DETERMINING THE RE LEVANT ACCOUNTING YEAR IN WHICH THE LIABILITY ACCRUES. IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT IN THIS CASE, IRREVOCABLE LICENCE WAS GIVEN IN TERMS OF THE CONTRACT ONLY DURING THE FINANCIAL YEAR ENDING MARC H 31, 1999, AND, THEREFORE, THERE WAS NO TRANSFER DURING THE FINANCI AL YEAR ENDING MARCH 31, 1996. ON THE OTHER HAND, IT WAS ARGUED ON BEHAL F OF THE REVENUE THAT ONE HAS TO GO BY THE DATE ON WHICH THE DEVELOP ER SUBSTANTIALLY 12 ITA NO. 1594/PN/2004, A.Y. 1992-93 PERFORMED THE CONTRACT. IT WAS ARGUED ON BEHALF OF THE DEPARTMENT THAT SINCE SUBSTANTIAL PAYMENTS WERE MADE DURING THE FIN ANCIAL YEAR ENDING MARCH 31, 1996, AND SINCE MAJORITY OF PERMISSIONS W ERE OBTAINED DURING THAT YEAR, THE LIABILITY TO PAY CAPITAL GAINS TAX A CCRUED DURING THE ASSESSMENT YEAR 1996-97. IN THIS CASE, THE AGREEMEN T IS A DEVELOPMENT AGREEMENT AND IN OUR VIEW, THE TEST TO BE APPLIED T O DECIDE THE YEAR OF CHARGEABILITY IS THE YEAR IN WHICH THE TRANSACTION WAS ENTERED INTO. WE HAVE TAKEN THIS VIEW FOR THE REASON THAT THE DEVELO PMENT AGREEMENT DOES NOT TRANSFER THE INTEREST IN THE PROPERTY TO THE DE VELOPER IN GENERAL LAW AND, THEREFORE, SECTION 2(47)(V) HAS BEEN ENACTED A ND IN SUCH CASES, EVEN ENTERING INTO SUCH A CONTRACT COULD AMOUNT TO TRANSFER FROM THE DATE OF THE AGREEMENT ITSELF. WE HAVE TAKEN THIS VIEW FO R A PRECISE REASON. FIRSTLY, WE FIND IN NUMEROUS MATTERS WHERE THE ASSE SSING OFFICER AND THE DEPARTMENT GENERALLY PROCEED ON THE BASIS OF SUBSTA NTIAL COMPLIANCE OF THE CONTRACT. FOR EXAMPLE, IN THIS VERY CASE, THE DEPARTMENT HAS CONTENDED THAT BECAUSE OF SUBSTANTIAL COMPLIANCE OF THE CONTRACT DURING THE FINANCIAL YEAR ENDING MARCH 31, 1996, THE TRANS FER IS DEEMED TO HAVE TAKEN PLACE IN THAT YEAR. SUCH INTERPRETATION WOULD RESULT IN ANOMALY BECAUSE WHAT IS SUBSTANTIAL COMPLIANCE WOULD DIFFER FROM OFFICER TO OFFICER. THEREFORE, IF ON A BARE READING OF A CONTR ACT IN ITS ENTIRETY, AN ASSESSING OFFICER COMES TO THE CONCLUSION THAT IN T HE GUISE OF THE AGREEMENT FOR SALE, A DEVELOPMENT AGREEMENT IS CONT EMPLATED, UNDER WHICH THE DEVELOPER APPLIES FOR PERMISSIONS FROM VA RIOUS AUTHORITIES, EITHER UNDER POWER OF ATTORNEY OR OTHERWISE AND IN THE NAME OF THE ASSESSEE, THEN THE ASSESSING OFFICER IS ENTITLED TO TAKE THE DATE OF THE CONTRACT AS THE DATE OF TRANSFER IN VIEW OF SECTION 2(47)(V). IN THIS VERY CASE, THE DATE ON WHICH THE DEVELOPER OBTAINED A CO MMENCEMENT CERTIFICATE IS NOT WITHIN THE ACCOUNTING YEAR ENDIN G MARCH 31, 1996. AT THE SAME TIME, IF ONE READS THE CONTRACT AS A WHOLE , IT IS CLEAR THAT A DICHOTOMY IS CONTEMPLATED BETWEEN THE LIMITED POWER OF ATTORNEY AUTHORISING THE DEVELOPER TO DEAL WITH THE PROPERTY VIDE PARA. 8 AND AN IRREVOCABLE LICENCE TO ENTER UPON THE PROPERTY AFTE R THE DEVELOPER OBTAINS THE REQUISITE APPROVALS OF VARIOUS AUTHORITIES. IN FACT, THE LIMITED POWER OF ATTORNEY MAY NOT BE ACTUALLY GIVEN, BUT ONCE UNDER CLAUSE 8 OF THE AGREEMENT A LIMITED POWER OF ATTORNEY IS INTENDED T O BE GIVEN TO THE DEVELOPER TO DEAL WITH THE PROPERTY, THEN WE ARE OF THE VIEW THAT THE DATE OF THE CONTRACT, VIZ., AUGUST 18, 1994, WOULD BE TH E RELEVANT DATE TO DECIDE THE DATE OF TRANSFER UNDER SECTION 2(47)(V) AND, IN WHICH EVENT, THE QUESTION OF SUBSTANTIAL PERFORMANCE OF THE CONT RACT THEREAFTER DOES NOT ARISE. THIS POINT HAS NOT BEEN CONSIDERED BY AN Y OF THE AUTHORITIES BELOW. NO JUDGMENT HAS BEEN SHOWN TO US ON THIS POI NT. THEREFORE, ALTHOUGH THERE IS A CONCURRENT FINDING OF FACT IN T HIS CASE, WE HAVE ENUNCIATED THE PRINCIPLES FOR APPLICABILITY OFSECTI ON 2(47)(V). WE DO NOT 13 ITA NO. 1594/PN/2004, A.Y. 1992-93 FIND MERIT IN THE ARGUMENT OF THE ASSESSEE THAT THE COURT SHOULD GO ONLY BY THE DATE OF ACTUAL POSSESSION AND THAT IN THIS P ARTICULAR CASE, THE COURT SHOULD GO BY THE DATE ON WHICH IRREVOCABLE LI CENCE WAS GIVEN. IF THE CONTRACT, READ AS A WHOLE, INDICATES PASSING OF OR TRANSFERRING OF COMPLETE CONTROL OVER THE PROPERTY IN FAVOUR OF THE DEVELOPER, THEN THE DATE OF THE CONTRACT WOULD BE RELEVANT TO DECIDE TH E YEAR OF CHARGEABILITY. THUS, FROM THE FACTS OF THE CASE IT IS UNAMBIGUOUSLY EVIDEN T THAT THE ASSESSEE HAD RECEIVED SUBSTANTIAL CONSIDERATION (2/3 RD APPROX.) AT THE TIME OF EXECUTION OF THE DEVELOPMENT AGREEMENT. THE REMAINING MINOR PART OF CONSIDERATION WAS TO BE RECEIVED BY THE A SSESSEE IN THE NEXT ASSESSMENT YEAR. THUS, BY NO MEANS CAPITAL GAINS ARISING FROM TRANSFER OF DEVELOPMENT RIGHTS COULD HAVE BEEN ASSESSED TO TAX IN THE ASSESSMENT YEAR 1998-99 AS CLAIMED BY THE ASSESSEE. THUS, WE CONCUR WITH THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AS FA R AS YEAR OF TAXABILITY OF CAPITAL GAINS FROM TRANSFER OF DEVELOPMEN T RIGHTS IS CONCERNED. 10. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS PLACED RELIANC E ON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DILIP A NAND VAZIRANI V. ITO (SUPRA). WE FIND THAT THE FACTS OF THE PRESE NT CASE ARE ENTIRELY AT VARIANCE WITH THE FACTS OF THE CASE ON WHICH THE RELIANCE HAS BEEN PLACED BY THE LD. COUNSEL FOR THE ASSESSEE. IN THE CASE OF DILIP ANAND VAZIRANI V. ITO (SUPRA) THE INITIAL AGREEMENT WAS EXEC UTED BETWEEN THE ASSESSEE AND THE DEVELOPER IN SEPTEMBER, 2 000. ON THE BASIS OF DATE OF EXECUTION OF AGREEMENT THE ASSESSING OFFICE R HELD THAT THE CAPITAL GAINS ARISING FROM TRANSFER OF RIGHTS IN ASSETS IS ASSESSABLE TO TAX IN THE ASSESSMENT YEAR 2001-02. AT THAT TIME, THE ASSESSEE WAS NOT HAVING ABSOLUTE TITLE IN THE PROPERTY. THE PROPERTY WAS EN CUMBERED WITH TENANCY RIGHTS OF MANY PERSONS. THE TENANCY RIGHTS WERE RELEASED IN JANUARY, 2005. THE SUBSTANTIAL CONSIDERATION AGREED BE TWEEN THE 14 ITA NO. 1594/PN/2004, A.Y. 1992-93 PARTIES WAS RECEIVED BY THE ASSESSEE IN THE FINANCIAL YEAR 2004-05 RELEVANT TO THE ASSESSMENT YEAR 2005-06 AND DURING TH AT PERIOD THE POSSESSION OF THE PROPERTY WAS DELIVERED TO THE DEVELOPE R. IN THE BACKDROP OF THESE FACTS THE TRIBUNAL RIGHTLY HELD THAT TH E YEAR OF TAXABILITY OF CAPITAL GAINS ARISING FROM TRANSFER OF RIGHTS IN AS SETS IS ASSESSMENT YEAR 2005-06. THUS, THE RATIO LAID DOWN BY T HE MUMBAI BENCH OF THE TRIBUNAL IN THE AFORESAID CASE WILL NOT APPLY IN THE FACTS OF THE PRESENT CASE. 11. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS T HAT THE CAPITAL GAIN ARISING FROM THE TRANSFER OF DEVELOPMENT RIGHTS IS ASSESSABLE IN THE ASSESSMENT YEAR 1998-99. HOWEVER, IT IS NOT EVIDENT FROM THE RECORDS WHETHER THE ASSESSEE HAS OFFERED THE CAPITAL GAINS ARISING FROM THE TRANSFER OF DEVELOPMENT RIGHTS IN THE ASSE SSMENT YEAR 1998-99. IF THE ASSESSEE HAS ALREADY OFFERED SUCH CAPIT AL GAINS IN THE ASSESSMENT YEAR 1998-99 IT WOULD AMOUNT TO DOUBLE TAXA TION IF AT THIS STAGE WE DIRECT THE ASSESSING OFFICER TO ASSESS THE SAME AMOUNT IN THE ASSESSMENT YEAR UNDER APPEAL. WE DEEM IT APPROPRIATE T O REMIT THE FILE BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO ASCERTAIN IF THE AMOUNT HAS BEEN OFFERED TO TAX BY THE ASSESSEE IN THE ASSESSM ENT YEAR 1998- 99. IN CASE THE ASSESSEE HAS FAILED TO DISCLOSE THE AMOU NT OF CAPITAL GAIN FROM THE TRANSFER OF DEVELOPMENT RIGHTS IN ITS RETUR N OF INCOME FOR ASSESSMENT YEAR 1998-99, THE ASSESSING OFFICER SHALL TAKE NECESSARY STEPS TO BRING THE AMOUNT TO TAX IN THE ASSESSMENT YE AR 1992-93, IN ACCORDANCE WITH LAW. ACCORDINGLY, GROUND NOS. 1 AND 3 RA ISED IN THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 12. IN GROUND NO. 2 THE ASSESSEE HAS CHALLENGED THE PRO CEEDINGS INITIATED U/S. 174 R.W.S. 148 OF THE ACT. THE LD. COUNSEL ST ATED AT THE BAR THAT HE IS NOT PRESSING THIS GROUND. IN VIEW OF THE STATEMENT MADE 15 ITA NO. 1594/PN/2004, A.Y. 1992-93 BY THE LD. COUNSEL FOR THE ASSESSEE, THE GROUND NO. 2 RAIS ED IN THE APPEAL IS DISMISSED AS NOT PRESSED. 13. IN GROUND NO. 4 OF THE APPEAL THE ASSESSING OFFICER HAS ASSAILED THE CHARGING OF INTEREST U/S. 234A AND 234B OF THE ACT. SINCE, THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY, THIS G ROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 14. THE GROUND NO. 5 RAISED IN THE APPEAL IS GENERAL IN NAT URE AND THUS, REQUIRES NO ADJUDICATION. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 09 TH DAY OF MARCH, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 09 TH MARCH, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A), KOLHAPUR 4. ' / THE CIT, KOLHAPUR 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE