Income tax officer, V. Lt. Col. G.S. Klair, New Delhi

ITA 2636/PUN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5844 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 18-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ARISES OUT OF PASSED
• Keywords: Salary income; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER . / ITA NO.2636/PUN/2016 / ASSESSMENT YEAR : 2008-09 ITO, WARD-11(3), PUNE VS. LT. COL. G.S. KLAIR, C/O. LT. GEN. H.P.S. KLAIR, D1/33, GOLD CROFT, PLOT NO.4, SECTOR 11, DWARKA, NEW DELHI 110 075 PAN : AJYPK4067A (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL FILED BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE CIT(A)-1, PUNE ON 01-08-2016 IN RELATION TO THE ASSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE RAISED BY THE REVENUE IN THIS APPEAL IS AG AINST DELETION OF ADDITION OF RS.1,19,32,338/- MADE BY THE ASSE SSING OFFICER UNDER THE HEAD CAPITAL GAINS. APPELLANT BY SHRI PANKAJ GARG RESPONDENT BY SHRI LT. GEN. H.P.S. KLAIR DATE OF HEARING 29-01-2019 DATE OF PRONOUNCEMENT 30-01-2019 ITA NO.2636/PUN/2016 LT. COL. G.S. KLAIR 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN ARMY OFFICER WHO DECLARED INCOME FROM SALARY. PROCEEDING S U/S.147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CA LLED AS THE ACT) WERE INITIATED AGAINST THE ASSESSEE AS INFORMATION WAS RECEIVED WHICH TRANSPIRED THAT THE ASSESSEE WAS A MEMBER O F M/S. DEFENCE SERVICES COOPERATIVE HOUSING BUILDING SOCIETY LIMITED, MOHALI, WHICH WAS HAVING 27.03 ACRE OF LAND IN VILLAGE KANS AL, DISTRICT SAS NAGAR AND THE SOCIETY HAD ENTERED INTO A TRIPARTITE AGREEMENT WITH M/S. TATA HOUSING DEVELOPMENT CORPORATION LIMITED AND M/S. HASH BUILDERS PVT. LTD. FOR SALE OF LAND TO THEM. THE MEMBERS WERE TO RECEIVE CONSIDERATION IN CASH AS WELL AS IN KIND AS PER THE PLOT SIZE. DURING THE YEAR UNDER CONSIDERA TION, THE ASSESSEE RECEIVED A SUM OF RS.8,40,000/- AS HIS PROPO RTIONATE SHARE. THE AO NOTED THAT IN SIMILAR TWO OTHER CASES MR. P.S. BHINDER AND MR. R.V. SINGH, IT WAS SUBMITTED BY THOSE ASSESS EES THAT THE JOINT DEVELOPMENT AGREEMENT BETWEEN THE SOCIETY AND THDC AND M/S. HASH BUILDERS PVT. LTD. WAS TERMINATED. IN TH E ABSENCE OF ANY PROOF TO SUBSTANTIATE THIS PLEA, THE AO CALLED FOR INFORMATION U/S.133(6) FROM THE SOCIETY, THDC AND M/S. HASH BUILDERS. THE THDC AND M/S. HASH BUILDERS PVT. LTD., VIDE TH EIR LETTERS DATED 26-02-2014 AND 23-02-2014 RESPECTIVELY, INFOR MED ITA NO.2636/PUN/2016 LT. COL. G.S. KLAIR 3 THE AO THAT THE AGREEMENT WAS NOT TERMINATED TILL DATE. THE AO COMPUTED INCOME UNDER THE HEAD CAPITAL GAINS AT RS.1,19,32,338/- ARRIVED AT BY DEDUCTING COST OF ACQUISITION OF RS.2.92 LAKH FROM THE FULL VALUE OF CONSIDERATION OF RS.1.2 2 CRORE, COMPUTED BY TAKING CONSIDERATION IN CASH AT RS.21 LAKHS AND VALUE OF ONE FLAT AT RS.1.01 CRORE. THE LD. CIT(A) DELETED THE ADDITION, EXCEPT TO THE EXTENT OF RS.8,40,000/- RECEIVED BY THE ASSE SSEE IN CASH, BY RELYING ON THE JUDGMENT OF HONBLE PUNJAB & HARYA NA HIGH COURT IN THE CASE OF SH. C.S. ATWAL VS. CIT DATED 22-07-2015. THE REVENUE IS AGGRIEVED AGAINST THE DELETION OF THIS ADDITION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH TH E RELEVANT MATERIAL ON RECORD. THE LD. DR SUBMITTED THAT THE JUDGMENT IN THE CASE OF SH. C.S. ATWAL VS. CIT, RELIED BY TH E LD. CIT(A) FOR DELETING THE ADDITION, IS IN RELATION TO A DIFFERENT PROPERTY AND NOT THE ONE WHICH WAS SOLD BY THE ASSESSEE ALONG WITH OTHER SOCIETY MEMBERS. THIS WAS CONTROVERTED BY THE LD. A R. AS THE AO MATCHED THE FACTS OF THE INSTANT CASE WITH THOSE OF MR. P.S. BHINDER AND MR. R.V. SINGH, THE LD. AR WAS REQUIRED TO GIV E STATUS OF THE APPEALS IN RESPECT OF THEM. IN RESPONSE, HE SUBMIT TED THAT THE ITA NO.2636/PUN/2016 LT. COL. G.S. KLAIR 4 TRIBUNAL HAS DELETED SIMILAR ADDITIONS IN THE CASE OF THOSE TWO PERSONS. HE, HOWEVER, EXPRESSED HIS INABILITY TO PRODUCE COPIES OF SUCH ORDERS PASSED BY THE TRIBUNAL. IT WAS FAIRLY ADMIT TED BY THE LD. AR THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT APPEAL ARE SIMILAR TO THOSE OF TWO PERSONS NAMED IN THE ASSESSMENT OR DER. SINCE COPIES OF THE TRIBUNAL ORDERS IN THE CASE OF MR. P.S. BHINDER AND MR. R.V. SINGH HAVE NOT BEEN PLACED ON RECORD, THO UGH THE LD. AR ADMITTED THAT THE APPEALS HAVE BEEN DECIDED BY THE TRIBUNA L, WE DEEM IT FIT TO SET-ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF AO. WE ORDER ACCORDINGLY AND DIRECT HIM TO DE CIDE THIS ISSUE AFRESH IN THE LIGHT OF THE DECISION CLAIMED TO HAV E BEEN RENDERED BY THE TRIBUNAL IN SIMILAR FACTS IN THE CASE OF MR . P.S. BHINDER AND MR. R.V. SINGH. NEEDLESS TO SAY, THE ASSESSE E WILL BE ALLOWED AN OPPORTUNITY OF HEARING IN SUCH FRESH PROCEEDINGS . 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VI CE PRESIDENT PUNE; DATED : 30 TH JANUARY, 2019 ITA NO.2636/PUN/2016 LT. COL. G.S. KLAIR 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, PUNE 4. 5. THE PR.CIT-1, PUNE , , / DR B, ITAT, PUNE; 6. / GUARD FILE. / TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR P RIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 29-01-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 29-01-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *