Dr. Rattan Singh M.P., Distt. Amritsar. V. The Income-tax Officer, Amritsar.

ITA 33/ASR/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5588 (ITAT-AMRITSAR)
• Duration Of Justice: 4 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-07-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T S ARORA
• Keywords: Capital asset
• Section: 54F; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A NO.33(ASR)/2013 ASSESSMENT YEAR: 2007-08 DR. RATTAN SINGH M.P.V & P.O.AJNALA TEH. AJNALA TEH. AJNALA DISTT. AMRITSAR. PAN:AAUPA-6236E VS. INCOME TAX OFFICER, WARD-5(4), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. T.S. ARORA (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 15.05.2017 DATE OF PRONOUNCEMENT:26.05.201 7 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF LD. CIT(A)- AMRITSAR, DATED 08.11.2012, FOR ASST. YEAR: 2008-09 . 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE APP EAL OF THE ASSESSEE IS COVERED IN HIS FAVOUR BY THE ORDER OF HONBLE PU NJAB & HARYANA HIGH COURT IN THE CASE OF C.S. ATWAL VS. CIT IN ITA NO.2 00/2013 WHEREIN THE HONBLE PUNJAB & HARYANA HIGH COURT UNDER SIMILAR C IRCUMSTANCES HAS HELD THAT CAPITAL GAIN TAX CAN BE LEVIED ONLY UP TO THE AMOUNT RECEIVED DURING THE RELEVANT ASSESSMENT YEAR. ITA NO.33 (ASR)/2013 ASST. YEAR: 2007-08 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E ENTERED INTO TRIPARTITE AGREEMENT ON 25.02.2007 WITH M/S PUNJABI CO-OP HOUSE BUILDING SOCIETY LTD., M/S HASH BUILDERS (P) LTD. A ND M/S TATA HOUSING DEVELOPMENT CORP. LTD. AND AS PER THIS AGREEMENT, E ACH MEMBER OF THE PUNJABI CO-OP HOUSE BUILDING SOCIETY LTD. HAVING A PLOT OF 500 SQ. YARD IN AREA WAS TO RECEIVE RS.82,50,000/- AS MONETARY C ONSIDERATION ALONG WITH A BUILT UP FLAT OF 2250 SQ FEET VALUING RS.1,0 1,25,000/-. ACCORDINGLY, A TOTAL MONETARY CONSIDERATION OF RS.1,83,75,000/-. IN VIEW OF TRIPARTITE AGREEMENT PART PAYMENT WAS ALSO RECEIVED BY THE ASS ESSEE BUT THE ASSESSEE DID NOT DECLARE ANY CAPITAL GAIN AS THE EN TIRE TRANSACTION WAS NOT CONCLUDED AND SOME DISPUTES AROSE AMONG THE PAR TIES. THEREFORE, THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 AND THE A DDITION WAS MADE TO THE EXTENT OF RS.1,77,21,000/- BEING LONG TERM CAPI TAL GAIN ON THE SALE OF SUCH PLOT. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE LD. C IT(A), WHO UPHELD THE ADDITION MADE BY ASSESSING OFFICER. 5. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE CAS E OF THE ASSESSEE IS COVERED IN HIS FAVOUR BY THE ORDER OF HONBLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF C.S. ATWAL VS. CIT (SUPRA) WHE REIN UNDER SIMILAR FACTS AND CIRCUMSTANCES THE HONBLE HIGH COURT HAD HELD THAT CAPITA GAIN TAX UNDER THESE CIRCUMSTANCES CAN BE LEVIED ON LY UP TO THE AMOUNT RECEIVED DURING THE YEAR. ITA NO.33 (ASR)/2013 ASST. YEAR: 2007-08 3 7. THE LD. DR ACCEDED THAT THE CASE WAS COVERED BY THE DECISION OF C.S. ATWAL VS. CIT( SUPRA) BUT HE SUBMITTED THAT TH E DEPARTMENT HAS PREFERRED AN APPEAL BEFORE HONBLE SUPREME COURT. 8. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GO NE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE CASE O F THE ASSESSEE IS DULY COVERED IN HIS FAVOUR BY THE ORDER OF HONBLE PUNJA B & HARYANA HIGH COURT IN THE CASE OF C.S. ATWAL & ORS. THE HONBLE COURT UNDER SIMILAR FACTS AND CIRCUMSTANCES HAD HELD AS UNDER: 1. PERUSAL OF THE JDA DATED 25.02.2007 READ WITH SALE DEEDS DATED 02.03.2007 AND 25.04.2007 IN RESPECT OF 3.08 ACRES AND 4.62 ACRES RESPECTIVELY WOULD REVEAL THAT THE PARTIES HAD AGRE ED FOR PRO-RATA TRANSFER OF LAND. 2. NO. POSSESSION HAD BEEN GIVEN BY THE TRANSFEROR TO THE TRANSFEREE OF THE ENTIRE LAND IN PART PERFORMANCE OF JDA DATED 25 .02.2007 SO AS TO FALL WITHIN THE DOMAIN OF SECTION 53A OF 1882 AC T. 3. THE POSSESSION DELIVERED, IF AT ALL, WAS AS A LI CENSE FOR THE DEVELOPMENT OF THE PROPERTY AND NOT IN THE CAPACITY OF A TRANSFEREE. 4. FURTHER SECTION 53A OF 1882 ACT, BY INCORPORATIO N, STOOD EMBODIED IN SECTION 2(47)(V) OF THE ACT AND ALL THE ESSENTIA L INGREDIENTS OF SECTION 53A OF 1882 ACT WERE REQUIRED TO BE FULFILL ED. IN THE ABSENCE OF REGISTRATION OF JDA DATED 25.02.2007 HAVING BEEN EXECUTED AFTER 24.09.2001, THE AGREEMENT DOES NOT FALL UNDER SECTI ON 53A OF 1882 ACT AND CONSEQUENTLY SECTION 2(47)(V) OF THE ACT DO ES NOT APPLY. 5. IT WAS SUBMITTED BY LEARNED COUNSEL FOR THE ASSE SSEE- APPELLANT THAT WHATEVER AMOUNT WAS RECEIVED FROM THE DEVELOPE R, CAPITAL GAINS TAX HAS ALREADY BEEN PAID ON THAT AND SALE DE EDS HAVE ALSO BEEN EXECUTED. IN VIEW OF CANCELLATION OF JDA DATED 25.02.2007, NO FURTHER AMOUNT HAS BEEN RECEIVED AND NO ACTION THER EON HAS BEEN TAKEN. IT WAS URGED THAT AS AND WHEN ANY AMOUNT IS RECEIVED, CAPITAL GAINS TAX SHALL BE DISCHARGED THEREON IN AC CORDANCE WITH LAW. IN VIEW OF THE AFORESAID STAND, WHILE DISPOSIN G OF THE APPEALS, WE OBSERVE THAT THE ASSESSEE APPELLANTS SHALL REMAI N BOUND BY THEIR SAID STAND. ITA NO.33 (ASR)/2013 ASST. YEAR: 2007-08 4 6. THE ISSUE OF ELIGIBILITY TO CAPITAL GAINS TAX HA VING BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THE QUESTION OF EXEMPTION U NDER SECTION 54F OF THE ACT WOULD NOT SURVIVE ANY LONGER AND HAS BEE N RENDERED ACADEMIC. 7. THE TRIBUNAL AND THE AUTHORITIES BELOW WERE NOT RIG HT IN HOLDING THE ASSESSEE-APPELLANT TO BE LIABLE TO CAPITAL GAINS TA X IN RESPECT OF REMAINING LAND MEASURING 13.5 ACRES FOR WHICH O CON SIDERATION HAD BEEN RECEIVED AND WHICH STOOD CANCELLED AND INCAPAB LE OF PERFORMANCE AT PRESENT DUE TO VARIOUS ORDERS PASSED BY THE SUPR EME COURT AND THE HIGH COURT IN PILS. THEREFORE, THE APPEALS ARE ALLO WED. IN VIEW OF THE ABOVE JUDICIAL PRECEDENT, WE ALLOW T HE APPEAL OF THE ASSESSEE. 9. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.05. 2017 . SD/- SD/- (N.K.CHOUDHRY ) (T. S. KA POOR) JUDICIAL MEMBER AC COUNTANT MEMBER DATED:26.05.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER