ACIT, Rewari V. Dr. Kartar Singh Yadav, Prop., Rewari

ITA 2829/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59040 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 26-03-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 01-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANOOP KUMA R SINGH
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Capital asset; Cost of acquisition; Fair market value; Capital receipt
• Section: 142(1); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI SHAMIM YAHYA ITA NO. 2829/DEL/2011 ASSESSMENT YEAR: 2008-09 ASSISTANT CIT, VS. DR. KARTAR SINGH YADAV, PROP. CIRCLE REWARI, M/S. SHANTI YADAV HOSPITAL, REWARI (HR.) REWARI (HR.) (PAN: ABCPY3325R) (APPELLANT) (RESPONDENT ) ITA NO. 2390/DEL/2011 ASSESSMENT YEAR: 2008-09 DR. KARTAR SINGH YADAV, PROP. VS. ASSISTANT CIT, M/S. SHANTI YADAV HOSPITAL, REWARI CIRCLE, REWARI (HR.) REWARI (HR.) (PAN: ABCPY3325R) (APPELLANT) (RESPONDENT ) DEPARTMENT BY: SHRI ANOOP K UMAR SINGH, DR ASSESSEE BY: SHRI ASHWAN I TANEJA, ADV. DATE OF HEARING : 27.03.2012 DATE OF PRONOUNCEMENT : 30 .03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE AND REVENUE ARE IN CROSS-APPEALS BEFO RE US AGAINST THE ORDER OF LEARNED CIT(APPEALS) DATED 18.03.2011 PASS ED FOR ASSESSMENT YEAR 2008-09. THE SOLITARY GRIEVANCE OF THE REVENUE IS T HAT LEARNED CIT(APPEALS) HAS ERRED IN HOLDING THAT SUM OF RS.25 LACS ADDED B Y THE ASSESSING OFFICER IS NOT TAXABLE IN ASSESSMENT YEAR 2008-09. THE ASSESSE E IN HIS APPEAL HAS PLEADED THAT LEARNED FIRST APPELLATE AUTHORITY HAS ERRED IN OBSERVING THAT 2 SUM OF RS.25 LACS IS ASSESSABLE AS AN INCOME OF THE ASSESSEE, THOUGH NOT IN ASSESSMENT YEAR 2008-09 BUT IN ASSESSMENT YEAR 2009 -10. FURTHER, LEARNED FIRST APPELLATE AUTHORITY HAS ERRED IN NOT GIVING B ENEFIT OF SECTION 51 OF THE INCOME-TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 15.09.2009 DECLARING AN INCOME OF RS.8,75 ,600. THE RETURN WAS PROCESSED UNDER SEC. 143(1) OF THE ACT. HOWEVER, SU BSEQUENTLY THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT A ND A NOTICE UNDER SEC. 143(2) WAS SERVED UPON THE ASSESSEE. IN ORDER TO GI VE LOGICAL END TO THE PROCEEDINGS, ASSESSING OFFICER HAS ISSUED QUESTIONN AIRE UNDER SEC. 142(1) OF THE ACT. IN RESPONSE TO THE NOTICE, SHRI NAMAN SHAR MA, ADV. ALONG WITH SHRI GOPAL SHARMA, ACCOUNTANT APPEARED BEFORE THE ASSESS ING OFFICER AND SUBMITTED REQUISITE DETAILS. ON SCRUTINY OF THE ACC OUNTS, IT REVEALED TO THE LEARNED ASSESSING OFFICER THAT ASSESSEE WAS OWNER A ND IN POSSESSION OF TWO PLOTS BEARING NOS. 196 AND 197, COMPRISED AT T.P. S CHEME NO.9, NEAR UMA BHARTI SCHOOL, REWARI, MEASURING 429 SQ. YDS. THE A SSESSEE HAD ENTERED INTO AN AGREEMENT FOR SALE OF THIS PLOT WITH SHRI VED PR AKASH S/O SHRI KHAN CHAND ON 30.1.2008, AT @ RS.8000 PER SQ. YD. IN PUR SUANCE OF THE AGREEMENT, ASSESSEE HAD RECEIVED AN ADVANCE OF RS. 25 LACS FROM SHRI VED PRAKASH. IT HAS BEEN PROVIDED IN THE AGREEMENT TO S ELL THAT SALE DEED WOULD 3 BE REGISTERED ON OR BEFORE 11.2.2009, OTHERWISE, TH E ADVANCE RECEIVED BY THE ASSESSEE WILL BE FORFEITED AND AGREEMENT WILL BE CA NCELLED. ACCORDING TO THE ASSESSING OFFICER, THE SALE DEED COULD NOT BE REGIS TERED BY 11.2.2009, THEREFORE, THE AMOUNT OF ADVANCE OF RS. 25 LACS STO OD FORFEITED. THE ASSESSEE OUGHT TO HAVE SHOWN THIS AMOUNT AS HIS INCOME. LEAR NED ASSESSING OFFICER FURTHER OBSERVED THAT OUT OF THIS PLOT, ASSESSEE HA D SOLD 175 SQ.YDS. FOR A CONSIDERATION OF RS.14,70,000 TO SMT. DHANPATI DEVI W/O SHRI BAL KISHAN VIDE SALE DEED DATED 16.11.2009. THE REMAINING PORT ION I.E. 254 SQ. YDS HAS BEEN SOLD TO SHRI VED PRAKASH VIDE REGISTERED SALE DEED DATED 28.03.2011 FOR A SUM OF RS.25 LACS WHICH ALLEGED TO HAVE BEEN RECE IVED AS AN ADVANCE IN THE AGREEMENT. LEARNED ASSESSING OFFICER HAS RECORD ED THE STATEMENT OF SHRI VED PRAKASH ON 23.11.2010. HE CONFRONTED SHRI VED P RAKASH ABOUT THIS AGREEMENT AND SHRI VED PRAKASH REPLIED THAT IT HAS BEEN ORALLY SETTLED BETWEEN HIM AND THE VENDOR THAT SALE DEED WOULD BE EXECUTED AS AND WHEN REMAINING AMOUNT WILL BE AVAILABLE WITH THE VENDEE. ON AN ANALYSIS OF THE ABOVE FACTS, LEARNED ASSESSING OFFICER HAD FORMED A N OPINION THAT THE AMOUNT OF RS. 25 LACS RECEIVED BY THE ASSESSEE AS P ER AGREEMENT DATED 30.1.2008 STOOD FORFEITED AND IT IS AN INCOME OF TH E ASSESSEE IN ASSESSMENT YEAR AND ACCORDINGLY HE MADE THE ADDITION. 4 3. DISSATISFIED WITH THE ADDITION, ASSESSEE CARRIED THE MATTER IN APPEAL. IT WAS CONTENDED BY THE ASSESSEE THAT AGREEMENT DATED 30.1.2008 DID NOT STAND CANCELLED. ASSESSEE HAD SOLD THE PLOT TO THE VENDEE SHRI VED PRAKASH THOUGH ON A SUBSEQUENT DATE. THE ASSESSEE COULD GET A BETT ER SALE PROCEEDS. HE HAS SHOWN THE SALE PROCEEDS OF MORE THAN RS.38.70 LACS INSTEAD OF RS.34.32 LACS ORIGINALLY AGREED. THE ASSESSEE HAS FILED THE RETUR N AND SHOWN THE CAPITAL GAIN. IT WAS ALSO CONTENDED THAT SECTION 51 OF THE INCOME-TAX ACT, 1961 PROVIDES THAT WHERE ANY CAPITAL ASSETS WAS ON ANY P REVIOUS OCCASION, THE SUBJECT MATTER OF NEGOTIATIONS FOR ITS TRANSFER, AN Y ADVANCE OR OTHER MONEY RECEIVED AND RETAINED BY THE ASSESSEE IN RESPECT OF SUCH NEGOTIATION SHALL BE DEDUCTED FROM THE COST FOR WHICH THE ASSET WAS ACQU IRED OR THE WRITTEN DOWN VALUE OR THE FAIR MARKET VALUE AS THE CASE MAY BE I N COMPUTING THE COST OF ACQUISITION. ON THE STRENGTH OF THIS PROVISION, IT WAS CONTENDED BY THE ASSESSEE THAT EVEN IF IT IS PRESUMED THAT AGREEMENT TO SELL STOOD CANCELLED AND THE AMOUNT RECEIVED AS ADVANCE STOOD FORFEITED THEN IT IS A CAPITAL RECEIPTS, WHICH HAS TO BE REDUCED FROM THE COST OF ACQUISITION FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN IN THE YEAR OF FINAL SALE OF ASSETS. THE ASSESSEE RELIED UPON THE JUDGMENT OF HON'BLE SUPREME COURT I N THE CASE OF TRAVANCORE RUBBER & TEA CO. LTD. VS.CIT REPORTED IN 243 ITR 258. IT WAS ALSO CONTENDED BY THE ASSESSEE THAT DATE OF TRANSFE R DO NOT FALL IN THE YEAR UNDER CONSIDERATION BUT FALLS IN SUBSEQUENT ASSESSM ENT YEARS, THEREFORE, THE 5 AMOUNT CANNOT BE TAXED IN THIS ASSESSMENT YEAR. LEA RNED FIRST APPELLATE AUTHORITY DID NOT AGREE WITH THE SUBMISSIONS MADE B Y THE ASSESSEE. HE PARTLY ALLOWED THE APPEAL BY OBSERVING AS UNDER: 6.2 THE PROVISIONS OF SECTION 51 ARE NOT ATTRACTED IN THE CASE OF THE APPELLANT, AS RIGHTLY RECORDED BY THE A.O. EVEN IF, FOR THE MOMENT, IT IS CONSIDERED THAT THE APPELLANT WAS GOING TO REDUC E THE FORFEITED AMOUNT OF RS.25.00 LACS FROM THE COST OF ACQUISITIO N FOR THE PURPOSE OF CAPITAL GAINS, THIS CONDUCT IS NOT EVIDENT FROM THE RETURN FILED FOR THE A.Y. 2010-11 WHEREIN NO SUCH CAPITAL GAINS WAS ADMITTED. HAVING BEEN CAUGHT ON THE WRONG FOOT, THE APPELLANT RESORT ED TO TAKING SHELTER UNDER THE PROVISIONS OF SEC. 51, THOUGH THEY ARE NO T APPLICABLE TO THE FACTS OF THE APPELLANT. 6.3 IN VIEW OF THE ABOVE, IT IS HELD THAT THE A.O. HAS RIGHTLY BROUGHT TO TAX THE FORFEITED AMOUNT OF RS.25.00 LACS AS INC OME OF THE APPELLANT UNDER THE HEAD INCOME FROM OTHER SOURCES. HOWEVER , SINCE THE LIMITATION DATE FOR FORFEITURE WAS 11.02.2009, THE AMOUNT HAS TO BE BROUGHT TO TAX IN THE A.Y. 2009-10 AND NOT IN THE P RESENT YEAR. ON THIS ACCOUNT, THE ADDITION MADE BY THE A.O. IS DELETED A ND THE GROUNDS OF APPEAL ARE DISPOSED OFF AS INDICATED ABOVE. 7. IN THE RESULT, THE APPEAL IS ALLOWED. 4. LEARNED DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AND SUBMITTED THAT SUM OF RS.25 LACS DESERVES TO BE ASS ESSED IN THIS ASSESSMENT YEAR. ON THE OTHER HAND, LEARNED COUNSEL FOR THE AS SESSEE REITERATED HIS CONTENTIONS AS WERE RAISED BEFORE THE LEARNED REVEN UE AUTHORITIES BELOW. HE TOOK US THROUGH THE AGREEMENT DATED 30.1.2008, S ALE DEED DATED 6 16.11.2009 VIDE WHICH 175 SQ. YDS. WERE SOLD TO SMT . DHANPATI FOR A CONSIDERATION OF RS.14,70,000. HE ALSO SUBMITTED TH AT REMAINING AREA WAS SOLD TO SHRI VED PRAKASH VIDE SALE DEED NO. 6872 DA TED 28.3.2011, FOR A CONSIDERATION OF RS. 25 LACS. HE ALSO TOOK US THROU GH THE AFFIDAVIT OF SHRI VED PRAKASH AS WELL AS STATEMENT OF SHRI VED PRAKAS H. 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE FIRST QUESTION FOR OUR ADJUDI CATION IS WHETHER ON EXPIRY OF THE DATE MENTIONED IN THE CONTRACT FOR ITS PERFO RMANCE, THE CONTRACT WOULD AUTOMATICALLY STAND CANCELLED AND CONSEQUENCES IN T HE SHAPE OF FORFEITURE OF ANY ADVANCE MENTIONED IN THE CONTRACT WOULD BE DEEM ED TO BE COMPLETED. IN AN IDEAL SITUATION, IT IS NOT A DIFFICULT QUESTION TO BE ANSWERED BECAUSE INTENTION CAN BE GATHERED FROM THE STAND OF THE PAR TIES FROM THE CONTRACT. BUT WHEN THE PARTIES ARE UNABLE TO SPECIFY THEIR STAND BY MAKING EXPRESSION EITHER IN THE CONTRACT OR BY RESCINDING, AMENDING, REVISING THE CONTRACT WITH FRESH ONE EXHIBITING THEIR INTENTION, THEN DIFFICUL T, WOULD ARISE. FEW CURIOUS FEATURES AS EMERGING OUT IN THESE APPEALS NO DOUBT PUZZLED US RATHER MADE US UNCERTAIN, WHAT WE OUGHT TO DO. THE FACTS AND THE K IND OF ISSUE, WE ARE CONFRONTED WITH WILL ALWAYS PUZZLED THE ADJUDICATOR . DIFFICULTY ARISES BECAUSE IN ORDER TO ARRIVE AT PROPER CONCLUSION, ON E HAS TO EVALUATE THE EVIDENCE AND GATHER INTENTION OF THE PARTIES. INTEN TION, AS DESCRIBED BY THE 7 WEBSTER COMPREHENSIVE DICTIONARY IS SETTLED DIRECTI ONS OF THE MIND TOWARDS THE DOING OF CERTAIN ACTS. MORE OFTEN THEN NOT, THE MATERIAL ON RECORD AND THE CIRCUMSTANCES DO NOT REFLECT THE TRUE INTENTION, AN D IT IS NOT POSSIBLE TO ENTER INTO THE RECESSES OF THE MIND OF AN ASSESSEE TO KNO W THE TRUE INTENTION HENCE THE PUZZLE. NONETHELESS, WE PROCEED TO DECIDE THE I SSUE ON THE BASIS OF THE MATERIAL BEFORE US. THE FIRST CIRCUMSTANCE AGAINST THE ASSESSEE IS THAT SALE DEED WAS NOT EXECUTED BY THE DATE IT WAS PROVIDED I N THE AGREEMENT TO SALE. THE SECOND CIRCUMSTANCE IS THAT ASSESSEE HAS SOLD A PORTION OF THE PLOT TO A THIRD PERSON FOR WHICH THE VENDEE EXPRESSES HIS UNA WARENESS, THE THIRD CIRCUMSTANCE IS REFERRED BY THE ASSESSING OFFICER I N PARAGRAPH 2.2 WHILE TAKING COGNIZANCE OF THE ASSESSEES LETTER, ACCORDI NG TO THE ASSESSING OFFICER, ASSESSEE HAS ACCEPTED THAT RS. 25 LACS SO RECEIVED HAS BEEN FORFEITED. AS AGAINST THESE THREE CIRCUMSTANCES, THE EXPLANATI ON OF THE ASSESSEE IS OF TWO FOLDS. FIRSTLY, ACCORDING TO THE ASSESSEE, IF T HE LETTER DATED 23.11.2010 IS READ IN TOTO THEN IT WILL GIVE AN INTENTION THAT HE NEVER ADMITTED THAT AMOUNT HAS BEEN FORFEITED. ACCORDING TO THE ASSESSEE, IT W AS NOT RETURNED TO THE VENDEE BECAUSE FINAL SETTLEMENT TOWARDS THE SALE OF THE PLOT WAS NOT ARRIVED AT. THE PLOT WAS ULTIMATELY SOLD TO SHRI VED PRAKAS H WHICH SUGGESTS THAT THE AGREEMENT HAS BEEN ACTED UPON BY THE PARTIES. THE N EXT EXPLANATION OF THE ASSESSEE IS THAT AS PER SECTION 51 OF THE INCOME-TA X ACT, 1961 EVEN IF ANY ADVANCE WAS TAKEN BY THE ASSESSEE WHILE NEGOTIATING THE TRANSFER OF HIS 8 CAPITAL ASSET THEN THAT ADVANCE WOULD NOT BE AN INC OME FROM OTHER SOURCES RATHER IT WOULD BE DEDUCTED FROM THE COST OF ACQUIS ITION OF THAT ASSET AS AND WHEN THE ASSET WILL BE SOLD ON SUBSEQUENT DATE. THE ASSESSEE HAS SOLD THE ASSETS IN THE SUBSEQUENT YEAR. AT THE MOST WHILE CO MPUTING THE CAPITAL GAIN, THIS AMOUNT COULD BE REDUCED AND FROM THE COST OF A CQUISITION CONSIDERED FOR COMPUTATION OF CAPITAL GAIN. THIS ARGUMENT HAS BEEN TAKEN BY THE ASSESSEE AS AN ALTERNATIVE PLEA. 6. LET US MAKE AN ANALYSIS OF THESE FACTS IN THE LI GHT OF POSITION OF LAW. SECTION 2(E) OF THE INDIAN CONTRACT ACT, 1872 PROVI DES THE DEFINITION OF EXPRESSION AGREEMENT. IT SUGGESTS THAT EVERY PROM ISE AND EVERY SET OF PROMISES FORMING THE CONSIDERATION FOR EACH OTHER I S AN AGREEMENT. SECTION 10 OF THE CONTRACT ACT PROVIDES, WHAT AGREEMENTS AR E CONTRACT,- ALL AGREEMENTS ARE CONTRACT IF THEY ARE MADE BY THE FRE E CONSENT OF PARTIES COMPETENT TO CONTRACT, FOR A LAWFUL CONSIDERATION A ND WITH A LAWFUL OBJECT AND ARE NOT HEREBY EXPRESSLY DECLARED TO BE VOID. A DMITTEDLY, THERE IS A CONTRACT BETWEEN THE ASSESSEE AND SHRI VED PRAKASH VIDE WHICH 429 SQ. YDS. OF THE LAND WAS TO BE SOLD BY THE ASSESSEE TO SHRI VED PRAKASH @ RS. 8000 PER SQ. YD. THE PARTIES HAVE AGREED TO GET THE SALE DEED REGISTERED BY 11.2.2009. THEY COULD NOT ADHERE TO THIS CONDITION. THE FALLACY IN THE APPROACH OF THE REVENUE AUTHORITIES BELOW IS THAT T HEY TOOK THIS DATE AS THE 9 ULTIMATE DATE FOR DEEMING THE EXTINGUISHMENTS OF TH E AGREEMENT, BUT THE POSITION IN LAW IS OTHERWISE. IT IS NOT ASCERTAINAB LE ON THE RECORD WHO IS NEGLIGENT IN PERFORMING HIS PART OF THE CONTRACT. C HAPTER-II OF SPECIFIC RELIEF ACT, 1963 I.E. ACT NO. 47 OF 1963 PROVIDES A MECHAN ISM FOR SPECIFIC PERFORMANCE OF CONTRACT E.G. IF VENDOR WAS READY TO GET THE SALE DEED REGISTERED BY 09.02.2009 AND ON ACCOUNT OF SOME LAP SE AT THE END OF VENDOR, THE SALE DEED COULD NOT BE REGISTERED, THEN THE VEN DEE COULD FILE A CIVIL SUIT WITHIN A PERIOD OF THREE YEARS FROM THE DATE OF REF USAL FOR MANDATING THE VENDOR, I.E. THE ASSESSEE FOR PERFORMING HIS PART O F DUTY IN GETTING THE SALE DEED REGISTERED. THIS LIMITATION HAS BEEN PROVIDED IN THE INDIAN LIMITATION ACT, SO MERELY ON EXPIRY OF THE DATE MENTIONED IN T HE AGREEMENT WOULD NOT AUTOMATICALLY GOAD AN AUTHORITY TO CONSTRUE THAT TH E AGREEMENT HAS LOSSES ITS CHARACTER OF A VALID CONTRACT ENFORCEABLE IN LAW. THIS ASPECT CAN BE ASCERTAINED FROM THE OTHER MATERIAL ALSO. IN THE ST ATEMENT WHEN SHRI VED PRAKASH WAS CONFRONTED THAT AS PER AGREEMENT, SALE DEED WAS TO BE REGISTERED OTHERWISE ADVANCE WOULD BE FORFEITED, WHAT YOU HAVE TO SAY, HE REPLIED THAT WE HAVE AGREED VERBALLY THAT SALE DEED WOULD BE REG ISTERED ON THE ARRANGEMENT OF BALANCE AMOUNT BY THE VENDEE. 7. THEREFORE, WHEN AN EXPLANATION OR DEFENCE OF AN ASSESSEE BASED UPON NUMBER OF FACTS SUPPORTED BY EVIDENCES AND CIRCUMST ANCES, REQUIRED 10 CONSIDERATION WHETHER THE EXPLANATION IS SOUND OR N OT MUST BE DETERMINED NOT BY CONSIDERING THE WEIGHT TO BE ATTACHED TO EAC H SINGLE FACT IN ISOLATION BUT BY ASSESSING THE CUMULATIVE EFFECT OF ALL THE F ACTS IN THEIR SETTING AS A WHOLE. LEARNED ASSESSING OFFICER IS MAINLY HARPING UPON THE DATE MENTIONED IN THE AGREEMENT BUT SIMULTANEOUSLY HE IS IGNORING THE CONDUCT OF THE PARTY. WE HAVE BEEN INFORMED THAT 254 SQ. YDS. OF THE PLOTS HAVE BEEN SOLD TO SHRI VEN PRAKASH AGAINST THIS SUM OF RS. 25 LACS AND THE CAPITAL GAIN HAS BEEN OFFERED. WHEN WE CONFRONTED THE LEARNED DR WITH THIS ASPECT, HE SUBMITTED THAT IF ASSESSEE OFFERED A CAPITAL GAIN T AX IN SOME OTHER YEARS THEN IT IS FOR HIM TO EXTEND THE CHARITY TO THE DEPARTME NT, BUT HE HAS TO OFFER THE AMOUNT FOR TAXATION IN THIS YEAR. THUS, MERELY ON E XPIRY OF THE DATE MENTIONED IN AN AGREEMENT WOULD NOT AUTOMATICALLY G OAD TO ANY AUTHORITY TO CONSTRUE THAT CONSEQUENCE IN THE SHAPE OF FORFEITUR E OF THE ADVANCE MENTIONED IN THE AGREEMENT WOULD BE DEEMED TO BE CO MPLETED, MEANING THEREBY, THIS EXPIRY OF THE DATE IS NOT SUCH A FACT THAT WOULD EXTINGUISH THE VALIDITY OF THE AGREEMENT. IT IS STILL ENFORCEABLE IN LAW AND IT IS FOR THE COURT TO SEE WHICH PARTY IS NEGLIGENT IN PERFORMING HIS P ART OF CONTRACT, ONLY THEN THE RIGHTS OF THE PARTIES WOULD BE SETTLED, THEREAF TER, IT COULD BE CONSTRUED WHETHER THE AMOUNT STOOD FORFEITED OR NOT. THE ABOV E DISCUSSION SUGGESTS THAT THERE IS NO EVIDENCE WITH A.O. TO SAY CONCLUSI VELY THAT SUM OF RS.25 11 LACS STOOD FORFEITED. THE ADDITION IN THIS FORM IS NOT SUSTAINABLE AND WE ACCORDINGLY DELETE IT. 8. AS FAR AS THE ALTERNATIVE CONTENTION IS CONCERNE D, WE FIND THAT THE LEARNED FIRST APPELLATE AUTHORITY FAILED TO GIVE AN Y REASON FOR REJECTING THIS CONTENTION. SECTION 51 OF THE INCOME-TAX ACT, 1961 DULY PROVIDE THAT IF AN ASSESSEE RECEIVES AN AMOUNT IN CONNECTION WITH NEGO TIATION OF TRANSFER OF PROPERTY THEN THAT AMOUNT WOULD BE REDUCED FROM THE COST OF ACQUISITION OF SUCH ASSETS, IF SOLD SUBSEQUENTLY, WHILE COMPUTING THE CAPITAL GAIN. THIS SUGGESTS THAT IT IS A CAPITAL RECEIPT AND IT CANNOT BE TAXED AS INCOME FROM OTHER SOURCES. EVEN ALTERNATIVELY, WHEN ASSESSEE UL TIMATELY OFFERED THE CAPITAL GAIN TAX IN THE SUBSEQUENT YEARS, BENEFIT O F SECTION 51 QUA RS. 25 LACS CANNOT BE DENIED. THUS, IN VIEW OF THE ABOVE DISCUS SION, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE, IT IS DISMISSED AND CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 30.03.201 2 SD/- SD/- ( SHAMIM YAHYA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30/03/2012 MOHAN LAL 12 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR