Rishi Mithal, V. ACIT -I,

ITA 3263/DEL/2007

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91111 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-05-2015
• Assessment Year: 1999-2000
• Appeal Filed On: 10-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Capital asset
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI A.T. VARKEY: JUDICIAL MEMBER ITA NOS. 3263 & 3264/DEL/2007 A.Y. 1999-2000 & 2001-02 RISHI MITTAL, VS. ACIT, CIRCLE-1, C/O KUMAR RAJAN & ASSOCIATES, MEERUT. 161, MALL ROAD, MEERUT CANTT. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI C.S. ANAND CA REVENUE BY : SHRI B.R.R. KUMAR SR. DR DATE OF HEARING : 18-05-2015 DATE OF ORDER : 29-05-2015. O R D E R PER S.V. MEHROTRA, A.M:- THESE APPEALS, FILED BY THE ASSESSEE, ARE DIRECTED AGAINST SEPARATE ORDERS OF CIT(A) PERTAINING TO AY 1999-2000 & 2001-02. BOTH T HESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. 2 ITA 3263 & 3264/DEL/2007 RISHI MITTAL VS. ACIT ITA NO. 3263/DEL/2007 (A.Y. 1999-2000) : 2. BRIEF FACTS OF THE CASE ARE THAT NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE AFTER RECORDING REASONS THAT ASSESSEE HAD NOT DECLARED I NCOME FROM LONG TERM CAPITAL GAINS IN HIS ORIGINAL RETURN OF INCOME IN THE RELEV ANT ASSESSMENT YEAR THOUGH THE ASSESSEE ALONG WITH SOME OTHER CO-OWNERS HAD EXECUT ED AN AGREEMENT TO SELL THE LAND WITH M/S DELTA DEVELOPERS ON 17-7-1998, WHICH COULD BE TREATED AS TRANSFER U/S 2(47)(V) OF THE I.T. ACT. THE ASSESSEE FILED RE TURN OF INCOME DECLARING TOTAL INCOME OF RS. 42,128/-. ASSESSEE ALSO DECLARED A LO NG TERM CAPITAL LOSS OF RS. 9,22,626/-. THE AO REJECTED THE CONTENTION OF ASSES SEE, INTER ALIA, OBSERVING THAT THE CONDITIONS OF SECTION 53A OF THE TRANSFER OF P ROPERTY ACT WERE NOT MET FOR THE FOLLOWING REASONS: (A) THE POSSESSION OF THE LAND MUST BE GIVEN TO THE TRA NSFEREE, AS THE HEADING OF THE AGREEMENT ITSELF READS AGREE MENT TO SELL WITHOUT POSSESSION (B) THE ASSESSEE, ALONG WITH THE OTHER CO-OWNERS HAVE R ECEIVED ONLY A MEAGER SUM OF RS. 20,000/- AGAINST THE TOTAL CONSIDERATION OF RS. 1,99,89,200/-. THIS CAN BE AT THE BEST TREATED AS TOKEN MONEY BUT NOT THE CONSIDERATION WI TH RELATION TO SECTION 53A OF THE TRANSFER OF PROPERTY ACT. 2.1. HE, ACCORDINGLY, ASSESSED THE TOTAL INCOME AT RS. 42,130/- AND AGRICULTURAL INCOME AT RS. 7500/-. 2.2. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL. BE ING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 3 ITA 3263 & 3264/DEL/2007 RISHI MITTAL VS. ACIT 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT IN THE CASES OF MANISH MITTAL( ITA NOS. 3261 & 3262/DEL/2007 ORDER DATED 30-11-2009) AND SIDHARTH MANOHAR (ITA NO. 3271/DEL/2007 ORDER DAT ED 14-12-2009), THE ITAT DELHI BENCH C HAS RESTORED THE MATTER BACK TO THE FILE OF CIT(A) TO CONSIDER THE ISSUE AFRESH AND, THEREFORE, THESE MATTERS ALSO MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A). 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. WE FIND THAT IN THE CASES O F MANISH MITTAL AND SIDHARTH MANOHAR (SUPRA), THE TRIBUNAL HAS RESTORED THE MATT ER TO THE FILE OF LD. CIT(A) TO CONSIDER THE ISSUE AFRESH AND, THEREFORE, IN ORDER TO MAINTAIN CONSISTENCY IN THE MATTER, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RE STORE THE MATTER TO THE FILE OF LD. CIT(A) FOR DECIDING THE ISSUE AFRESH. ITA NO. 3264/DEL/2007 (AY 2001-02) : 5. IN THIS ASSESSMENT YEAR THE AO HAS HELD THAT THE DATE OF TRANSFER OF LAND WAS 17-7-1998 AND, THEREFORE, THE CAPITAL GAIN WAS TAXA BLE IN AY 1999-2000. LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL, INTER A LIA, OBSERVING THAT THE ASSESSMENT ORDER WAS PASSED TO GIVE EFFECT TO THE O RDER U/S 264 OF THE I.T. ACT DATED 3-6-2004 OF THE CIT, MEERUT, MODIFYING THE AS SESSMENT ORDER PASSED BY THE AO VIDE ORDER DATED 30-6-2004 U/S 264. THEREFORE, T HIS APPEAL DID NOT LAY BEFORE HIM. 4 ITA 3263 & 3264/DEL/2007 RISHI MITTAL VS. ACIT 6. WE FIND THAT SIMILAR ORDER WAS PASSED IN THE CAS ES OF MANISH MITTAL AND SIDHARTH MANOHAR (SUPRA), WHEREIN THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF CIT(A) TO CONSIDER THE ISSUE AFRESH. FOR THE SAM E REASONS AND TO MAINTAIN CONSISTENCY HEREIN ALSO WE RESTORE THE MATTER TO TH E FILE OF CIT(A) FOR DECISION AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. IN THE RESULT, BOTH THE APPEALS STAND ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 29-05-2015. SD/- SD/- (A.T. VARKEY) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 29-05-2015. MP: C OPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR