NIDHIVAN INVESTMENTS & TRADING CO. P. LTD, MUMBAI V. ASST CIT (OSD) CIR 2(2), MUMBAI

ITA 3025/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3401 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 03-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MISHRA
• Keywords: Question of law
• Section: 153A; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI [BEFORE S/SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER] / I .T.A. NO.3025/MUM/2012 & 3026/MUM/2012 ( / ASSESSMENT YEAR: 2006-07 &2007-08) NIDHIVAN INVESTMENTS & TRADING CO. PVT. LTD. NEVILLE HOUSE, J.N.HEREDIA MARG, BALLARD ESTATE, MUMBAI - 400001 / VS. THE ASSISTANT COMMISSIONER OF INCOME TAX (OSD) CIRCLE 2(2) AAYAKAR BHAVAN, M.K.MARG, MUMBAI - 400020 / I .T.A. NO.3575/MUM/2012 & 3576/MUM/2012 ( / ASSESSMENT YEAR: 2006-07 &2007-08) THE ASSISTANT COMMISSIONER OF INCOME TAX (OSD) CIRCLE 2(2) AAYAKAR BHAVAN, M.K.MARG, MUMBAI - 400020 / VS. NIDHIVAN INVESTMENTS & TRADING CO. PVT. LTD. NEVILLE HOUSE, J.N.HEREDI A MARG, BALLARD ESTATE, MUMBAI - 400001 ./ ./ PAN/GIR NO. : AAACN7442A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI YOGESH THAR / RESPONDENT BY: SHRI S.K.MISHRA / DATE OF HEARING: 28.12.2015 !'# /DATE OF PRONOUNCEMENT: 23.03.2016 $% / O R D E R ITA NO.3025&3026/MUM/2013 & 3575&3576/M /12 ASSESSMENT YEAR: 2006-07 & 2007-08 2 PER AMARJIT SINGH, JM: THE REVENUE AS WELL AS ASSESSEE HAVE FILED THE ABOV E MENTIONED APPEALS CHALLENGING THE ORDER DATED 24.02.2012 PASSED BY TH E LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-5, MUMBAI [HERE INAFTER REFERRED TO AS THE CIT(A)] WHICH RELATES TO ASSESSMENT YEAR 20 06-07 AND 2007-08. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. THE LEARNED REPRESENTATIVE OF THE ASSESS EE HAS ARGUED THAT THE DEPARTMENT HAS FILED THE APPEAL AGAINST THE ORDER P ASSED BY THE INCOME TAX APPELLATE TRIBUNAL FOR THE A.Y.2004-05 AND FOR THE A.Y.2005-06 BEFORE THE HONBLE HIGH COURT, MUMBAI U/S. 260A OF THE ACT AND THE FOLLOWING QUESTION OF LAW HAS BEEN ADMITTED:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN COMING TO THE CONCLUSION THAT THE AMOUNT RECEIVED BY THE ASSESSEE, AS A RESU LT OF INDENTURE DATED 26 TH SEPTEMBER, 2001 SIGHED BY LATE SMT. BACHOOBAI WORONZOW, TRANSFERRING HER RIGHTS ARISING OUT OF AN AGREEMENT OF 2 ND JANUARY, 1995 WITH DEVELOPERS, DOES NOT RESULT IN CAPITAL GAIN IN THE HAND OF THE ASSESSEE? 3. IT IS ARGUED THAT THE IDENTICAL QUESTIONS IS UND ER CONSIDERATION BEFORE THE TRIBUNAL THEREFORE, THE DECISION MAY BE KEPT IN ABEYANCE TILL THE DECISION OF THE HONBLE HIGH COURT ON THIS POINT U /S.158A(1) OF THE ACT HOWEVER, ON THE OTHER HAND THE LEARNED REPRESENTATI VE OF THE DEPARTMENT REFUTED THE SAID CIRCUMSTANCES. ITA NO.3025&3026/MUM/2013 & 3575&3576/M /12 ASSESSMENT YEAR: 2006-07 & 2007-08 3 4. CONSIDERING THE ASSERTIONS MADE BY BOTH THE PART IES AND CAREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IT HA S COME TO OUR NOTICE THAT THE ISSUE IN CONTROVERSY HAS ALREADY BEEN ADJUDICAT ED BY THE CO-ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 & 2005-06, AND NOW THIS QUESTION IS PENDING BEFORE THE HONBLE HIGH COURT IN ITA NO. 1259 OF 2013 A.Y. 2004-05 AND ITA NO.1258 OF 2013 A.Y. 2005-06. THE ASSESSEE HAS ALSO TENDERED FORM NO.8 I.E. DECLARATION U/S 153A (1) OF THE INCOME TAX ACT, 196 1, ALONG WITH THE COPY OF THE ORDER DATED 10.10.2014 PASSED BY THE HONBLE BOMBAY HIGH COURT WHEREIN THE CLAIM OF THE ASSESSEE HAS BEEN ADMITTED FOR ADJUDICATION. THE ORDER OF HONBLE HIGH COURT HAS BEEN REPRODUCED AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN COMING TO THE CONCLUSION THAT THE AMOUNT RECEIVED BY THE ASSESSEE, AS A RESU LT OF INDENTURE DATED 26 TH SEPTEMBER, 2001 SIGHED BY LATE SMT. BACHOOBAI WORONZOW, TRANSFERRING HER RIGHTS ARISING OUT OF AN AGREEMENT OF 2 ND JANUARY, 1995 WITH DEVELOPERS, DOES NOT RESULT IN CAPITAL GAIN IN THE HAND OF THE ASSESSEE? IT IS ARGUED IN VIEW OF THE SAID CIRCUMSTANCE, IT I S APPARENT THAT IDENTICAL QUESTION OF LAW IS PENDING FOR DECISION BEFORE THE HONBLE HIGH COURT, THEREFORE, AN ORDER UNDER SUB-SECTION 3 OF SECTION 158B IS REQUIRED TO PASSED AS THE ASSESSEE SHALL NOT RAISE SUCH QUESTIO N OF LAW TILL FINAL DECISION OF THE HONBLE HIGH COURT. A COPY OF THE DECLARATI ON SUBMITTED BY THE ASSESSEE HAS BEEN GIVEN TO THE LEARNED DR WHO HAS N OT OBJECTED FOR THE SAME. ITA NO.3025&3026/MUM/2013 & 3575&3576/M /12 ASSESSMENT YEAR: 2006-07 & 2007-08 4 5. IN VIEW OF SUCH SITUATION, WE ADMIT THE CLAIM OF THE ASSESSEE UNDER THE PROVISIONS OF SUB-SECTION 3 OF SECTION 158A OF THE ACT AND DECIDE THE GROUNDS OF APPEAL AGAINST THE ASSESSEE WITH THE DIR ECTION THAT WHENEVER THE QUESTION OF LAW RAISED BY THE ASSESSEE BEFORE THE H ONBLE HIGH COURT RELATING TO THE EARLIER ASSESSMENT YEARS IS REPLIED , THE SAME WOULD APPLY TO THE GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT A PPEAL ALSO. IN OTHER WORDS, THE ISSUE IN CONTROVERSY IN THIS CASE WOULD BE DECIDED AS AND WHEN THE MATTER OF CONTROVERSY WOULD BE ADJUDICATED BY T HE HONBLE BOMBAY HIGH COURT; WOULD BE DECIDED IRRESPECTIVE OF THE OR DERS PASSED BY THE TRIBUNAL. IN VIEW OF THE ABOVE SAID OBSERVATION, TH E GROUNDS RAISED IN THE PRESENT APPEAL OF THE ASSESSEE ARE DECIDED AGAINST THE ASSESSEE. 6. IN VIEW OF THE SAID CIRCUMSTANCES REQUEST TO REO PEN THE MATTER, IF LAW POINT WOULD BE DECIDED IN FAVOUR OF THE ASSESSEE WO ULD BE CONSIDERED IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MARCH 2016 SD/- SD/- (B. R. BASKARAN) (AMARJIT SINGH) $ / ACCOUNTANT MEMBER &' $ /JUDICIAL MEMBER ( ) MUMBAI; *$ DATED : 23 RD MARCH, 2016 MP ITA NO.3025&3026/MUM/2013 & 3575&3576/M /12 ASSESSMENT YEAR: 2006-07 & 2007-08 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. - ( ) / THE CIT(A)- 4. - / CIT 5. 012 ''34 , 34# , ( ) / DR, ITAT, MUMBAI 6. 267 8 / GUARD FILE. / BY ORDER, 0 ' //TRUE COPY// / !'# (DY./ASST. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI