VINAYAK DEVELOPERS, Jaipur V. CIT-II, Jaipur

ITA 329/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5182 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEENA CIT DHK
• Assessee Lawyers: O P AGARWAL CAS
• Keywords: Revision of order; Audit objection; Fair market value; Difference of opinion; Revised return; Change of opinion
• Section: 143(3); 139(5); 263; 63

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 329/JP/2014. FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. M/S. VINAYAK DEVELOPERS, B-123, MODEL TOWN, JAGATPURA ROAD, MALVIYA NAGAR, JAIPUR. CUKE VS. THE COMMISSIONER OF INCOME TAX (ADMIN.), JAIPUR-II, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAFFV 1348 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL & SHRI O.P. AGARWAL (CAS) JKTLO DH VKSJ LS@ REVENUE BY : SHRI M.S. MEENA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.07.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/08/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT-II, JAIPUR DATED 19.03.2014 PERTAINING TO ASSESSMENT YEAR 2009 -10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. COMMISSIONER OF INCOME TAX (ADM.), JAIPUR-II HAS GR OSSLY ERRED IN PASSING THE IMPUGNED ORDER U/S 263 OF THE I.T. ACT WITHOUT CONSIDERING THE SUBMISSIONS MADE AND THE FACTS ON R ECORD, THUS THE IMPUGNED ORDER DESERVES TO BE QUASHED AND BE HOLD A S BAD IN LAW. 1.1. THAT, THE LD. CIT (ADMIN) HAS FURTHER ERRED IN PASS ING THE SAID ORDER U/S 263 MERELY ON THE BASIS OF AUDIT OBSERVAT IONS WHICH IS TOTALLY IMPERMISSIBLE IN VIEW OF VARIOUS JUDICIAL P RECEDENTS THUS, THE ACTION OF THE LD. CIT (ADM.) BEING PURELY CHANG E OF OPINION DESERVES TO BE HELD BAD IN LAW. 2 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. 1.2. THAT, THE LD. CIT (ADMIN) HAS FAILED TO ESTABLISH A S TO HOW THE SAID ORDER WAS ERRONEOUS IN SO FAR AS BEING PREJUDI CIAL TO THE INTERESTS OF REVENUE. ORDER U/S 263 CANNOT BE PASSE D MERELY ON THE BASIS OF CHANGE OF OPINION, PARTICULARLY WHEN T HE AO HAD MADE COMPLETE INQUIRIES. 1.3. THAT, THE LD. CIT (ADMIN) HAS FURTHER ERRED IN CONS IDERING THE SALE OF LAND AND PURCHASE BACK OF CERTAIN PORTION O F LAND DUE TO NON-TRANSFER OF POSSESSION OF THE SAID PORTION AS T WO SEPARATE TRANSACTIONS, INSTEAD OF ONE TRANSACTION OF SALE OF LAND WITHOUT CONSIDERING THE FACT THAT, SINCE THE POSSESSION OF ENTIRE PROPERTY COULD NOT BE HANDED OVER, THE TRANSACTION WAS NOT C OMPLETE AND THE PROPERTY WAS PURCHASED BACK SO THAT THE CORRESP ONDING AMOUNT COULD BE REFUNDED TO THE BUYER AND THUS AFTE R REPURCHASE, THE TRANSACTION GETS COMPLETED, AND HEN CE CANNOT BE TREATED AS TWO SEPARATE TRANSACTIONS. ACCORDINGL Y, THE ORDER PASSED U/S 263 DESERVES TO BE QUASHED AND SET ASIDE . 1.4. THAT, THE LD. CIT (ADMIN) HAS FURTHER ERRED IN IGNO RING THE ORDER OF COURT OF SUB DIVISIONAL OFFICER & EXECUTIVE MAGI STRATE, WHEREIN, THE COURT HAD ORDERED PARTITION OF THE LAN D OWNED AND SOLD BY APPELLANT AND THEREFORE THE ORDER SO PASSED U/S 263 IS LIABLE TO BE SET ASIDE. 1.5. THAT, THE LD. CIT (ADMIN) HAS FURTHER ERRED IN IGNO RING THE SETTLEMENT DEED EXECUTED BETWEEN THE PARTIES AS PER WHICH, IN CASE THE SDM COURT ORDERED PARTITION IN SUCH A MANN ER THAT THE AREA OWNED AND SOLD BY APPELLANT DID NOT FALL IN ON E PLACE THEN, THE APPELLANT WAS REQUIRED TO PURCHASE BACK THE POR TION OF LAND SO FALLING OUTSIDE THE MAIN PORTION, AFTER REFUNDIN G THE CONSIDERATION PAID TO HIM AND THUS, THE ORDER U/S 2 63 DESERVES TO BE HELD BAD IN LAW. 1.6. THAT, THE LD. CIT (ADMIN) HAS FURTHER ERRED IN FAIL ING TO CONSIDER THE ACTUAL NATURE OF TRANSACTION HAVING TAKEN PLACE BETWEEN THE APPELLANT AND THE BUYER OF PROPERTY AND THEREFORE T HERE WAS NO NEED TO INVOKE SECTION 263 WHEN ALL THE INQUIRIES H AVE ALREADY BEEN MADE BY THE AO. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE I.T . ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND ASSESSMENT WAS FRAMED VIDE ORDER DATED 28 TH DECEMBER, 2011. 3 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. WHILE FRAMING THE ASSESSMENT, THE AO COMPUTED THE L ONG TERM CAPITAL GAIN AT RS.1,83,31,381/-. WHILE COMPUTING THE LONG TERM CA PITAL GAIN, THE AO, OUT OF SALES CONSIDERATION TAKEN AS PER PROVISIONS OF SECTION 50 C OF THE ACT OF RS. 3,61,58,999/- HAS REDUCED RS. 1,21,79,000/- AS THE SALE NOT MATUR ED. SUBSEQUENTLY, THE LD. CIT INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT AN D DIRECTED THE AO TO RECOMPUTE THE LONG TERM CAPITAL GAIN ON THE SALE CONSIDERATIO N OF RS. 3,61,58,999/- WITHOUT REDUCING THE SUBSEQUENT PURCHASE AMOUNT OF RS. 1,21 ,79,000/-. 3. AGGRIEVED BY THIS ORDER, ASSESSEE HAS PREFERRED APPEAL BEFORE US. 4. GROUND NOS. 1 TO 1.6 ARE INTER CONNECTED AND ARE AGAINST THE INVOKING OF PROVISIONS OF SECTION 263 BY THE LD. CIT. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. IT I S SUBMITTED THAT THE ASSESSEE IS A PARTNERSHIP FIRM. DURING THE YEAR UNDER APPEAL, THE ASSESSEE FIRM HAD DECLARED TOTAL INCOME OF RS 29,30,700/-. THE CASE WAS PICKED UP F OR SCRUTINY ASSESSMENT AND DURING THE ASSESSMENT PROCEEDINGS IT WAS NOTICED TH AT THE LAND TRANSFERRED DURING THE YEAR UNDER APPEAL COULD NOT BE TERMED AS AGRICU LTURAL LAND AS THE SAME WAS SITUATED WITHIN 8 KM OF MUNICIPAL LIMITS OF JAIPUR. THEREFORE, THE ASSESSEE FILED A REVISED RETURN UNDER SECTION 139(5) OF THE ACT AND VOLUNTARILY OFFERED FOR TAXATION THE CAPITAL GAINS ARISING OUT OF SUCH TRANSACTION. WHILE COMPUTING THE CAPITAL GAINS IN REVISED RETURN, A CLAIM WAS MADE FOR DEDUCTION OF R S 1,21,79,000/- BEING A PORTION OF LAND SOLD, POSSESSION OF WHICH COULD NOT BE GIVE N AND THE ASSESSEE HAD TO REFUND/REPAY THE CONSIDERATION TO THE BUYER AS HAS BEEN DECIDED BETWEEN THEM. ACCORDINGLY, ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AT A TOTAL INCOME OF RS. 2,12,62,080/- INCLUDING CAPITAL GAIN OF RS. 1,83,31,380/- AS OFFERED BY 4 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. ASSESSEE AND FURTHER ALLOWED DEDUCTION OF RS. 1,21, 79,000/- ON ACCOUNT OF UN- MATERIALIZED PORTION OF SALES OF SUBJECT LAND. IT W AS SUBMITTED THAT THEREAFTER THE SENIOR AUDIT OFFICER, ICAG HAS MADE AN AUDIT OBJECT ION ON THE BASIS OF WHICH THE LD. CIT INVOKED THE PROVISIONS OF SECTION 263. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE OWNED TOTAL LAND ADMEASURING 4.15 HECTARES SITUATED AT VILLAGE KISHANPURA PATWAR HALKA,VIDHANI TEHSIL SANGANER, JAIPUR, OUT O F WHICH A PIECE OF LAND MEASURING 3.02 HECTARE WAS SOLD FOR A TOTAL CONSID ERATION OF RS. 3,55,54,000/- TO M/S. RENAISSANCE BUILDERS IN TERMS OF TWO SALE DEED S DATED 16.06.2008 AND PART PAYMENT OF RS. 1,66,02,000/- WAS RECEIVED. THEREAFT ER, THE BUYER FAILED TO GET THE POSSESSION OF THE LAND IN THE MANNER IT WAS AGREED UPON, THEREFORE, THE SELLER INSISTED FOR REFUND OF SALE CONSIDERATION AGAINST T HAT SPECIFIC PIECE OF LAND WHICH DID NOT COMMENSURATE WITH THE TERMS AND CONDITIONS ACCE PTED IN WRITING BETWEEN THE PARTIES AT THE TIME OF EXECUTION OF SALE DEED. ACCO RDINGLY, THE PART OF LAND IN QUESTION MEASURING 0.77 HECTARES WHICH HAD EARLIER BEEN SOLD TO M/S. RENAISSANCE BUILDERS HAD TO BE PURCHASED BACK BY THE ASSESSEE I N TERMS OF SETTLEMENT DEED DATED 07.07.2008. IT IS SUBMITTED THAT A SETTLEMENT DEED WAS EXECUTED BETWEEN THE ASSESSEE AND THE BUYER M/S. RENAISSANCE BUILDERS WH EREIN IT HAD EXPRESSLY BEEN AGREED BETWEEN THE PARTIES THAT IN CASE THE ASSESSE E FAILS TO PROVIDE THE PHYSICAL POSSESSION OF THE ENTIRE LAND TRANSFERRED, A REFUND OF THE SALE CONSIDERATION TO THE EXTENT OF THE LAND NOT PHYSICALLY HANDED OVER WILL BE MADE BY THE ASSESSEE. ACCORDINGLY, IN TERMS OF THIS AGREEMENT, AN AMOUNT OF RS. 1,21,79,000/- (CONSIDERATION IN RESPECT OF PORTION OF LAND NOT PH YSICALLY HANDED OVER) WAS REFUNDED AND THE TITLE TO LAND WAS REGAINED BACK BY ASSESSEE VIDE SALE DEED DATED 5 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. 14.07.2009. THE LD. COUNSEL SUBMITTED THAT THE REA SONS FOR NOT HANDING OVER THE POSSESSION ARE WELL ESTABLISHED AND WERE BEYOND THE CONTROL OF THE ASSESSEE. WHEN THE PHYSICAL POSSESSION WAS TO BE HANDED OVER TO TH E BUYER, A SHOCKING FACT CAME TO SURFACE THAT THE THIRD PARTIES INCLUDING THE AGRICU LTURISTS, FROM WHOM THE SUBJECT LAND WAS PURCHASED BY THE ASSESSEE, HAD EFFECTED AUTHORI ZED/UNAUTHORIZED PHYSICAL POSSESSION OVER THE SAID LAND AND REFUSED TO GIVE P HYSICAL POSSESSION TO THE BUYER. THEREAFTER, CIVIL SUIT WAS FILED AT THE INSTANCE OF BUYER M/S. RENAISSANCE BUILDERS BEFORE THE COMPETENT COURT FOR GETTING PHYSICAL POS SESSION OF THE LAND. THE COMPETENT COURT IN TERMS OF THE ORDER DATED 19.05.2 009 HELD THAT OUT OF TOTAL 4.15 HECTARES LAND, ONLY 2.25 HECTARES LAND IS LEGALLY B ELONGING TO M/S. RENAISSANCE BUILDERS AS AGAINST THE TOTAL LAND PURCHASED BY IT FROM ASSESSEE MEASURING 3.02 HECTARES. THEREFORE, PURSUANT TO THE ORDERS OF HON BLE COURT OF SDM, THE BUYER WAS NO MORE LEGALLY CAPACITATED TO GET THE POSSESSION O F ENTIRE LAND PURCHASED INITIALLY I.E. 3.02 HECTARES. THUS, OUT OF THE 3.02 HECTARE S LAND INITIALLY SOLD TO THE BUYER, THE POSSESSION OF THE PORTION OF LAND MEASURING 0.7 7 HECTARES COULD NOT TAKEN BY BUYER AND, THEREFORE, THE ASSESSEE WAS LEGALLY BOUN D TO REFUND THE SALE CONSIDERATION AMOUNT IN RESPECT OF THE LAND, POSSES SION OF WHICH IT COULD NOT BE HANDED OVER TO THE BUYER. IN SUPPORT OF THIS CONTE NTION, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE RELEVANT PORTION OF THE SALE DEED WHICH IS REPRODUCED AT PAGE 3 OF THE WRITTEN BRIEF. THE LD. COUNSEL SUBMITTED THAT LD. CIT HAS FAILED TO APPRECIATE THE FACT THAT THE MONEY WA S PAID IN PURSUANCE OF THE TERMS OF THE ORIGINAL SALE DEED. THEREFORE, THE AO WAS JU STIFIED IN ALLOWING THE DEDUCTION. THE LD. COUNSEL SUBMITTED THAT ALL THE FACTS WERE A VAILABLE BEFORE THE AO. THE AO 6 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. HAS CONSCIOUSLY GIVEN THE DEDUCTION. THEREFORE, INV OCATION OF PROVISIONS OF SECTION 263 IS MERELY THE CHANGE OF OPINION. THE LD. COUNSE L SUBMITTED THAT THE ORIGINAL SALE CONSIDERATION WAS NOT PAID IN ONE INSTALLMENT BUT I T WAS TO BE PAID IN VARIOUS INSTALLMENTS AND AMOUNT WAS TO BE PAID AFTER HANDIN G OVER THE PHYSICAL POSSESSION. SINCE DUE TO DISPUTE WITH LAND OWNER, PHYSICAL POSS ESSION OF THE ENTIRE LAND COULD NOT BE HANDED OVER TO THE BUYER, HENCE THE LAND IN RESPECT OF WHICH POSSESSION WAS NOT HANDED OVER, THE CONSIDERATION THEREOF WAS REQU IRED TO BE REFUNDED AND AS AN ABUNDANT CAUTION TO SECURE THE INTEREST AND TITLE O F THE APPELLANT, A SALE DEED WAS EXECUTED TO THIS EFFECT. THE LD. COUNSEL SUBMITTED THAT UNDER THESE FACTS, THE INVOCATION OF PROVISIONS OF SECTION 263 WAS NOT JUS TIFIED. THE LD. COUNSEL SUBMITTED THAT THE INITIATION OF PROCEEDINGS UNDER SECTION 26 3 IS ON THE BASIS OF AUDIT OBJECTION. HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE PUNJA B & HARYANA HIGH COURT RENDERED IN THE CASE OF CIT VS. SOHANA WOOLEN MILLS , 296 ITR 238 (P&H) WHEREIN IT HAS BEEN HELD THAT A MERE FACT AUDIT OBJECTION AND THE FACT THAT A DIFFERENT VIEW COULD BE TAKEN, ARE NOT ENOUGH TO SAY THAT THE ORDE R OF THE ASSESSING OFFICER WAS ERRONEOUS OR PREJUDICIAL TO THE INTERESTS OF THE RE VENUE. LD. COUNSEL SUBMITTED THAT FOR INVOKING THE PROVISIONS OF SECTION 263, TW IN CONDITIONS ARE REQUIRED TO BE SATISFIED THAT THE ORDER PROPOSED TO BE REVISED IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IN THE CASE IN HAND, THE AO HAS MADE ENQUIRY WITH REGARD TO THE TRANSACTIONS AND AFTER APPLYING HIS MIND FOR MED A VIEW THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION OF THE CONSIDERATION WHICH H AS BEEN REFUNDED. MOREOVER, HE SUBMITTED THAT THE COMPETENT COURT OF JURISDICTION HAD DECLARED THE SALE EFFECTED IN RESPECT OF WHICH THE CAPITAL GAIN IS COMPUTED AS A NULLITY. IT IS SUBMITTED THAT THE LD. 7 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. CIT HAS FAILED TO APPRECIATE THE FACT. THIS IS NOT THE CASE OF REPURCHASING OF THE LAND BUT IT IS THE CASE WHERE THE ORIGINALLY SOLD LAND W AS FOUND NOT TO BE IN TERMS OF ORIGINAL SALE DEED. THEREFORE, THE AMOUNT WAS A RE FUND OF THE CONSIDERATION BUT NOT ON ACCOUNT OF CONSIDERATION FOR PURCHASE OF LAND. 4.1. ON THE CONTRARY, THE LD. CIT D/R SUPPORTED THE ORDER OF LD. CIT AND SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDER OF LD. CIT . HE SUBMITTED THAT MERELY BECAUSE THAT THE ORDER UNDER SECTION 263 IS ON THE BASIS OF AUDIT OBJECTION, IT WOULD NOT VITIATE THE PROCEEDINGS UNDER SECTION 263 OF THE AC T. THE LD. CIT D/R VEHEMENTLY ARGUED THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. HE FURTHER SUBMITTED THAT IN ORIGIN AL RETURN THE ASSESSEE HAS NOT DECLARED THE CAPITAL GAIN BUT ONLY DURING THE ASSES SMENT PROCEEDINGS IT REVISED ITS RETURN OF INCOME WHICH WAS NOT VALID IN TERMS OF SE CTION 139(5) OF THE ACT. 4.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE BASIS OF REVISING THE ORIGINAL ASSESSMENT ORDER IN THIS CASE IS THAT THE LD. CIT HAS ACCEPTED THE AUDIT OBJECTION AND TREATED THE TWO TRANSACTIONS SEPARATE LY. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT POWERS UNDER SECTION 263 CA N BE EXERCISED IF TWIN CONDITIONS ARE SATISFIED. THE ORDER SOUGHT TO BE REVISED IS ER RONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IN THE CASE IN HAND, THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS FINDING THAT THE LAND WHICH WAS TRANSFE RRED WAS NOT AGRICULTURAL LAND, THEREFORE, IT OFFERED THE CAPITAL GAINS ARISING OUT OF SUCH TRANSFER FOR TAXATION. THIS OFFER OF THE ASSESSEE WAS ACCEPTED BY THE AO. IT IS ALSO NOT THE CASE OF THE LD. CIT THAT THE ENTIRE SALE CONSIDERATION WAS AN UNDISCLOS ED AMOUNT. THE LD. CIT HAS 8 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. HIMSELF TAKEN IT AS A SALE CONSIDERATION AND DIRECT ED THE AO TO RECOMPUTE THE LONG TERM CAPITAL GAIN ON THE BASIS OF SALE CONSIDERATIO N OF RS. 3,61,58,999/- WITHOUT GIVING SET OFF OF THE AMOUNT REFUNDED BY THE ASSESS EE. THE LD. CIT HAS TAKEN TWO TRANSACTIONS DIFFERENTLY. HOWEVER, THE AO HAS TAKE N THE TWO TRANSACTIONS AS A SINGLE TRANSACTION. WE FIND THAT LD. CIT HAS NOT CONSIDER ED THE TERMS OF THE ORIGINAL SALE DEED. AS PER ONE OF THE CONDITIONS OF THE SALE DEED , IN CASE THE BUYER LOSSES THE POSSESSION OR DOES NOT GET ENTIRE LAND OR PART OF T HE LAND, IN THAT EVENT THE BUYER WAS ENTITLED TO RECOVER THE FAIR MARKET VALUE ALONG WITH COST THEREON FROM THE SELLER. IT IS DEMONSTRATED BY THE ASSESSEE THAT THERE WAS A DISPUTE WITH REGARD TO POSSESSION OF THE LAND. SUBSEQUENTLY, A COMPROMISE DEED WAS EXECUTED BETWEEN THE ASSESSEE AND THE BUYER ON 07.07.2008 WHEREIN IT HAD EXPRESSLY BEEN AGREED BETWEEN THE PARTIES THAT IN CASE THE ASSESSEE FAILS TO PROVIDE THE PHYSICAL POSSESSION OF THE ENTIRE LAND TRANSFERRED, A REFUND OF THE SAL E CONSIDERATION TO THE EXTENT OF THE LAND NOT PHYSICALLY HANDED OVER WILL BE MADE BY THE ASSESSEE. ACCORDINGLY IN TERMS OF THIS AGREEMENT, THE ASSESSEE REFUNDED AN AMOUNT OF RS. 1,21,79,000/- TO THE BUYER FOR NOT GIVING PHYSICAL POSSESSION OF A PORTI ON OF THE LAND AND TITLE TO LAND WAS REGAINED BACK BY ASSESSEE VIDE SALE DEED DATED 14.0 7.2009. THIS ACTION OF THE ASSESSEE FINDS SUPPORT FROM THE ORDER DATED 19.05.2 009 OF HONBLE COURT OF SDM PASSED ON THE CIVIL SUIT FILED BY M/S. RENAISSANCE BUILDERS, WHEREIN IT IS HELD THAT OUT OF THE 3.02 HECTARES LAND INITIALLY SOLD TO THE BUY ER, THE POSSESSION OF THE PORTION OF LAND MEASURING 0.77 HECTARES COULD NOT BE TAKEN BY BUYER AND, THEREFORE, THE ASSESSEE WAS LEGALLY BOUND TO REFUND THE SALE CONSI DERATION AMOUNT IN RESPECT OF THE LAND, POSSESSION OF WHICH COULD NOT BE HANDED OVER TO THE BUYER IN TERMS OF THE SALE 9 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS. DEEDS. IN THIS REGARD, THE LD. CIT HAS FAILED TO A PPRECIATE THE RELEVANT CLAUSE OF THE SALE DEEDS AND ALSO CONSIDER THE ORDER OF HONBLE C OURT OF SDM ON THE CIVIL SUIT FILED BY THE BUYER. AT THE TIME OF HEARING, THE LD. D/R COULD NOT CONTROVERT THESE ASPECTS OF THE MATTER, THEREFORE, WE FIND NO FORCE IN THE A RGUMENT OF LD. D/R. IN VIEW OF THE ABOVE, THE ORDER OF LD. CIT IS HEREBY SET ASIDE. TH E CLAIM OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22/08/2016. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 22/08/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. VINAYAK DEVELOPERS, JAIPUR. 2. THE RESPONDENT THE CIT (ADMIN.), JAIPUR-II, JA IPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 329/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 10 ITA NO. 329/JP/2014 M/S. VINAYAK DEVELOPERS.