A.C.I.T Cir - 43,kolkata, Kolkata V. Krishna Prasad Bagaria, Kolkata

ITA 2277/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4397 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 19-09-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 20-08-2013
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Capital receipt; Reassessment proceedings
• Section: 143(3); 148; 263

Judgement Text

I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NO. 2277 /KOL/ 2013 ASSESSMENT YEAR: 2005-2006 ASSISTANT COMMISSIONER OF INCOME TAX,.............. .....................APPELLANT CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 -VS.- SHRI KRISHNA PRASAD BAGARIA,....................... ...........................RESPONDENT 165, C.R. AVENUE, KOLKATA-700 007 [PAN: ADZPB 4942 N] APPEARANCES BY: SHRI SALLONG YADEN, ADDL. CIT, D.R., FOR THE DEPARTMENT SHRI MIRAJ D. SHAH, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : SEPTEMBER 19, 201 6 DATE OF PRONOUNCING THE ORDER : OCTOBER 04, 2016 O R D E R PER SHRI P.M. JAGTAP, A.M .: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA D ATED 26.03.2013, WHEREBY HE DELETED THE ADDITION OF RS.1,00,00,000/- MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESS EE ON ACCOUNT OF HIS SHARE OF AD HOC DAMAGES RECEIVED FROM DELHI ADMINIS TRATION. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS THE JOINT OWNER (ONE-FOURTH SHARE) OF HOUSE PROPERTY SITUATED AT 3, TILAK MARG, NEW DELHI. THE SAID PROPERTY WAS ACQUIRED BY DELHI ADMINISTRATION IN 1987 AND WHEN THE ASSESSEE CHALLENGED THE ACQUISITI ON PROCEEDINGS INITIATED BY THE DELHI ADMINISTRATION, HONBLE DELH I HIGH COURT QUASHED THE SAID ACQUISITION PROCEEDINGS AND ALSO HELD THE ASSESSEE TO BE ENTITLED TO DAMAGES TO BE DETERMINED BY AN ARBITRATOR. THERE AFTER THE DELHI I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 2 OF 6 ADMINISTRATION FILED AN APPEAL BEFORE THE DIVISION BENCH OF THE HONBLE DELHI HIGH COURT, WHICH STAYED THE PROCEEDINGS ON THE CONDITION THAT THE DELHI ADMINISTRATION SHOULD DEPOSIT RS.4,00,00,000/ - AS DAMAGES AND ALSO PERMITTED THE ASSESSEE TO WITHDRAW HIS SHARE O F RS.1,00,00,000/- FROM THE SAID DEPOSIT. THE ASSESSEE ACCORDINGLY WIT HDREW A SUM OF RS.1,00,00,000/- IN THE FINANCIAL YEAR 1995-96 RELE VANT TO ASSESSMENT YEAR 1996-97. SUBSEQUENTLY THE DIVISION BENCH OF TH E HONBLE DELHI HIGH COURT DISMISSED THE APPEAL FILED BY THE DELHI ADMIN ISTRATION AND EVEN THE SLP FILED BY THE DELHI ADMINISTRATION AGAINST THE S AME WAS DISMISSED BY THE HONBLE SUPREME COURT IN THE F.Y. 2004-05 RELEV ANT TO A.Y. 2005-06. IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CO NSIDERATION ORIGINALLY ON 31.07.2005, WHICH WAS PROCESSED UNDER SECTION 14 3(1) OF THE ACT, THE AMOUNT OF RS.1,00,00,000/- RECEIVED AS HIS SHARE OF DAMAGES WAS NOT OFFERED TO TAX BY THE ASSESSEE. ACCORDING TO THE AS SESSING OFFICER, THE SAID AMOUNT WAS CHARGEABLE TO TAX IN THE HANDS OF THE AS SESSEE IN THE PREVIOUS YEAR RELEVANT TO A.Y. 2005-06 AS THE MATTER REGARDI NG ACQUISITION PROCEEDING HAD ATTAINED FINALITY IN THAT YEAR BY VI RTUE OF THE ORDER OF THE HONBLE SUPREME COURT AND THERE WAS ESCAPEMENT OF I NCOME OF THE ASSESSEE FROM ASSESSMENT TO THAT EXTENT. HE, THEREF ORE, REOPENED THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION AND ISS UED A NOTICE UNDER SECTION 148 ON 28.08.2010 AFTER RECORDING THE REASO NS. IN REPLY, A LETTER WAS FILED BY THE ASSESSEE ON 08.02.2010 REQUESTING THE ASSESSING OFFICER TO TREAT THE RETURN ORIGINALLY FILED ON 31.07.2008 AS THE RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. DURING THE CO URSE OF REASSESSMENT PROCEEDINGS, THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE ASSESSING OFFICER FIXING HIS CASE FOR HEARING FROM TIME TO TIME. THE ASSESSING OFFICER, THEREFORE, PRE SUMED THAT THE ASSESSEE HAD NOTHING TO SAY IN THE MATTER AND PROCEEDED TO B RING TO TAX THE AMOUNT OF RS.1,00,00,000/- RECEIVED BY THE ASSESSEE AS HIS SHARE OF DAMAGES IN HIS HANDS VIDE ASSESSMENT COMPLETED UNDER SECTION 1 44/147 OF THE ACT VIDE ORDER DATED 08.12.2010. I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 3 OF 6 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144/147, AN APPEAL WAS PREFERRED BY THE ASSESSEE BE FORE THE LD. CIT(APPEALS) CHALLENGING THE ADDITION OF RS.1,00,00 ,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF HIS SHARE OF DAMAGE S AND AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD, THE LD. CIT(APPEALS) DELETED T HE SAID ADDITION MADE BY THE ASSESSING OFFICER FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 3 OF HIS IMPUGNED ORDER:- 3. THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CONS IDERED AND IT IS SEEN THAT THE IDENTICAL ISSUE WAS CONSIDE RED IN MY ORDER IN THE CASE OF ANOTHER JOINT OWNER OF THE SAME PROP ERTY, SUDARSHAN PRASAD BAGARIA FOR ASSESSMENT YEAR 2005-0 6 IN APPEAL NO. CIT(A)-XXX/CIR-43/10-11.FURTHER THE ISSU E HAS BEEN DISCUSSED IN DETAIL IN THE ORDER DATED 29.08.2011, THE OPERATIONAL PART OF THE ABOVE ORDER IS REPRODUCED A S UNDER: 'THUS IT HAS BEEN HELD BY THE SPECIAL BENCH AFTER CONSIDERING THE DECISIONS OF VARIOUS HIGH COURTS ON THE ISSUE INCLUDING THE CONTRARY VIEWS OF HON MADRAS HI GH COURT IN P. MARRIAPPA GOUNDER (147 ITR 676), THAT COMPENSATION DAMAGES RECEIVED BY THE ASSESSEE FOR WRONGFUI OCCUPATION OF PROPERTY WAS CAPITAL RECEIPT AND NOT LIABLE TO TAX. THE HIGH COURT ORDER IN THE CASE OF THE DISPUTED PROPERTY IS VERY CLEAR AND THE HON' BLE SINGLE JUDGE WHILE DELIVERING THE ORDER HAS CLEARLY HELD THAT THE NOTIFICATION ISSUED BY DELHI ADMINISTRATIO N IS ILLEGAL AND BAD IN LAW. SHE WENT ON TO HOLD THAT 'T HE POSSESSION OF THE PETITIONER'S PROPERTY BY DELHI ADMINISTRATION THROUGH ITS OFFICE IS ILLEGAL AND IS IN THE NATURE OF TRESPASS ON THE PROPERTY'. IT HAS BEEN FU RTHER HELD THAT THE PETITIONERS ARE ENTITLED TO DAMAGES F ROM 18.3.1987 TILL PAYMENT AND AN ARBITRATOR WAS APPOIN TED TO DETERMINE THE DAMAGES PAYABLE BY THE DELHI ADMINISTRATION. FROM THE ABOVE IT IS CLEAR THAT THE NATURE OF THE AMOUNT IN QUESTION WAS IN THE FORM OF DAMAGES AWARDED BY THE HON 'BLE COURT FOR 'ILLEGAL POSSESSION' AND THEREFORE THE DECISION OF THE HON'B LE KOLKATA HIGH COURT IN CIT VS. SMT. LILA GHOSH IS DI RECTLY APPLICABLE AND THE AMOUNT IS A CAPITAL RECEIPT AND NOT LIABLE TO TAX. ALTHOUGH IT HAS BEEN HELD THAT AS ABOVE THAT THE DAMAGES AWARDED WERE IN THE NATURE OF CAPITAL RECEI PTS HOWEVER REGARDING THE YEAR OF TAXABILITY, IT IS SEE N THAT THE AO HAS NOT ADDRESSED THE ISSUE CORRECTLY. THE A O HAS HIMSELF ISSUED NOTICE U/S. 148 IN ASSESSMENT YE AR 2009-10 ON THE BASIS OF THE DAMAGES RECEIVED BY THE APPELLANT IN FINANCIAL YEAR 2008-09 OF THE AMOUNT O F I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 4 OF 6 DAMAGES AWARDED BY THE ARBITRATOR. THEREFORE HIS STAND IS CONTRADICTORY, ON THE ONE HAND HE IS TAXIN G THE AD-HOC AMOUNT OF DAMAGES ON THE BASIS OF THE SUPREM E COURT'S DISMISSAL OF THE SLP IN THE CURRENT YEAR AN D ON THE OTHER HE IS ISSUING NOTICE FOR TAXATION OF THE DAMAGES RECEIVED BY THE APPELLANT IN 2008 FROM THE DELHI ADMINISTRATION, WHEREAS THE AMOUNT WAS AWARDE D BY THE ARBITRATOR IN 2006 AND THUS THE DAMAGES ACCRUED TO THE APPELLANT IN THIS FINANCIAL YEAR. TH E AO WAS THEREFORE NOT JUSTIFIED IN CONSIDERING THE AD-H OC PAYMENT OF DAMAGES RS 1 CRORE (THE APPELLANT'S SHAR E) FOR TAXATION IN THIS YEAR. ACCORDINGLY, CONSIDERING ALL THE ABOVE THE ADDITION MADE BY THE AO OF RS. 1 CROR E IS DELETED.' THEREFORE CONSIDERING THE ABOVE DECISION IT IS HELD THAT INCOME IS NOT TAXABLE IN ASSESSMENT YEAR 2005-06 AND THE A DDITION MADE BY THE AO OF RS.1 CRORE IS DELETED.(RELIEF RS.1,00, 00,000/-). AS A RESULT THE APPEAL IS ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE OUTSET, IT IS NOTICED THAT THERE IS A DEL AY OF 11 DAYS ON THE PART OF THE REVENUE IN FILING THIS APPEAL BEFORE TH E TRIBUNAL. IN THIS REGARD, THE REVENUE HAS MOVED AN APPLIED SEEKING CO NDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN TH EREIN, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY ON THE PART OF THE REVENUE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LD. COUNSEL FOR THE ASSESSEE HAS NOT RAISED ANY OBJECTION IN THIS REGAR D. WE, THEREFORE, CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF TH IS APPEAL OF THE REVENUE ON MERIT. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, AD HOC PAYMENT OF RS.4,00,00,000/- WA S MADE BY THE DELHI ADMINISTRATION ON ACCOUNT OF DAMAGES TO THE FOUR JO INT OWNERS OF THE PROPERTY INCLUDING THE ASSESSEE AS PER THE DIRECTIO N OF THE HONBLE DELHI HIGH COURT AND EACH OF THEM WAS ALLOWED TO WITHDRAW THEIR RESPECTIVE I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 5 OF 6 SHARES OF RS.1,00,00,000/- EACH. THE ISSUE RELATING TO THE QUANTUM OF DAMAGES TO BE PAID, HOWEVER, WAS DECIDED BY THE ARB ITRATOR FINALLY IN THE PREVIOUS YEAR RELEVANT TO A.Y. 2009-10 AWARDING TOT AL DAMAGES OF RS.24.36 CRORES AND AFTER ADJUSTING THE AD HOC PAYM ENT OF RS.4,00,00,000/- MADE IN ADVANCE, THE BALANCE AMOUN T OF RS.20.36 CRORES WAS PAID BY THE DELHI ADMINISTRATION TO ALL THE FOU R CO-OWNERS OF THE PROPERTY. THE ASSESSEES SHARE IN THE TOTAL DAMAGES AS QUANTIFIED FINALLY BY THE ARBITRATOR WAS RS.6.09 CRORES AND THE SAME W AS DECLARED BY HIM IN THE RETURN OF INCOME FILED FOR A.Y. 2009-10 CLAIMIN G EXEMPTION FOR THE SAME ON THE GROUND THAT IT CONSTITUTED CAPITAL RECE IPT NOT CHARGEABLE TO TAX. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSE SSEE, THE SAID CLAIM OF THE ASSESSEE WAS ACCEPTED BY THE ASSESSING OFFICER IN THE ORDER DATED 28.12.2011 PASSED UNDER SECTION 143(3) AND ALTHOUGH THE LD. CIT UNDER SECTION 263 SET ASIDE THE SAID ORDER PASSED BY THE ASSESSING OFFICER, THE ASSESSING OFFICER IN THE FRESH ORDER PASSED UNDER S ECTION 143(3)/263 ON 27.03.2015 AGAIN ACCEPTED THE CLAIM OF THE ASSESSEE THAT THE AMOUNT IN QUESTION RECEIVED AS HIS SHARE OF DAMAGES FROM DELH I ADMINISTRATION WAS EXEMPT FROM TAX BEING IN THE NATURE OF CAPITAL RECE IPT. EVEN THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY T HE LD. CIT UNDER SECTION 263 WAS ALLOWED BY THE TRIBUNAL SETTING ASIDE THE O RDER PASSED BY THE LD. CIT UNDER SECTION 263 VIDE ITS ORDER DATED 28.05.20 15 PASSED IN ITA NO. 923/KOL/2014. A COPY OF THE SAID ORDER IS ALSO PLAC ED ON RECORD BEFORE US BY THE LD. COUNSEL FOR THE ASSESSEE AND PERUSAL OF THE SAME SHOWS THAT THE TRIBUNAL HAS SPECIFICALLY NOTED IN PARAGRAPH NO . 21 THEREIN THAT THE CLAIM OF THE ASSESSEE ON ACCOUNT OF HIS SHARE OF DA MAGES RECEIVED FROM THE DELHI ADMINISTRATION BEING CAPITAL RECEIPT EXEM PT FROM TAX WAS ACCEPTED BY THE ASSESSING OFFICER HIMSELF AFTER DUE EXAMINATION EXCEPT TO THE EXTENT OF RS.14,18,806/- WHICH THE ASSESSEE HIM SELF HAD ACCEPTED TO BE REVENUE RECEIPT BEING IN THE NATURE OF INTEREST. THE NATURE OF THE AMOUNT IN QUESTION RECEIVED BY THE ASSESSEE AS HIS SHARE OF DAMAGES FROM DELHI ADMINISTRATION THUS HAS BEEN FINALLY ACCEPTED BY THE ASSESSING OFFICER HIMSELF AS CAPITAL RECEIPT NOT CHARGEABLE T O TAX AND THE TRIBUNAL ALSO BY IMPLICATION HAS APPROVED THE SAID VIEW TAKE N BY THE ASSESSING I.T.A. NO. 2277/KOL./2013 ASSESSMENT YEAR: 2005-2006 PAGE 6 OF 6 OFFICER. THE ISSUE INVOLVED IN THIS APPEAL OF THE R EVENUE THUS IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND THIS POSITION IS ACCEPTED EVEN BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(APPE ALS) DELETING THE ADDITION OF RS.1,00,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF HIS SHARE OF AD HOC DAMAGES RECEIVED FROM THE DELHI ADMINISTRATION AND UPHOLDING THE SAME, WE DISMISS THIS APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 04, 2 016. SD/- SD/- (K. NARASIMHA CHARY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT ME MBER KOLKATA, THE 4 TH DAY OF OCTOBER, 2016 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-43, KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 (2) SHRI KRISHNA PRASAD BAGARIA, 165, C.R. AVENUE, KOLKATA-700 007 (3) COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOL KATA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.