Sh. Sukhbir Singh Badal, Muktsar V. The Deputy Commissioner of Income tax, Bathinda

ITA 34/ASR/2011

• Counselvise Citation: 3420914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 28-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Keywords: Capital asset; Salary income; Rule of consistency; Advance ruling; Cost of acquisition; Difference of opinion; Revised return; Change of opinion
• Section: 143(3); 142(1); 234B; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO.34 (ASR)/2011 ASSESSMENT YEAR: 2007-08 PAN: ABSPB1568P SH. SUKHBIR SINGH BADAL, VS. DY. COMMISSIONER O F VILL. BADAL, DISTT. MUKTSAR, INCOME TAX, CIRCLE- II, (PUNJAB) BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. VINEET KRISHAN, ADVOCATE RESPONDENT BY: SH. MAHAVIR SINGH, SR. DR & SH. AMRIK CHAND, DR DATE OF HEARING: 19.08.2013 DATE OF PRONOUNCEMENT: 30.08.2013 ORDER PER BENCH 1) THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 16.12.2010 PASSED BY LEARNED COMMISSION ER OF INCOME TAX, BATHINDA, FOR THE ASSESSMENT YEAR 2007-08 ON THE FO LLOWING GROUNDS: I. THAT THE ORDER PASSED UNDER SECTION 263 OF THE I.T. ACT, 1961 BY COMMISSIONER OF INCOME TAX, BATHINDA, IN APPEAL NO. CIT/BTI/JUDIL.263/10-11/3008-10 DATED 09.12.2010 IS CONTRARY TO LAW AND FACTS OF THE CASE. II. THAT THE ORDER PASSED UNDER SECTION 263 BY COMMISSI ONER OF INCOME TAX, BATHINDA IS VOID AB INITIO AS THE LD. A SSESSING 2 OFFICER HAD DULY APPLIED HIS MIND AND CONSIDERED TH ESE FACTS AND IT IS ONLY A CHANGE OF OPINION. III. THAT THE ORDER PASSED BY THE LD. ASSESSING OFFICER WAS NEITHER ERRONEOUS NOR PREJUDICED TO THE INTEREST OF REVENUE . IV. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE COM MISSIONER OF INCOME TAX, BATHINDA GRAVELLY ERRED IN TREATING THE ENTIRE LAND LIABLE TO CAPITAL GAIN ASSETS AND TREATING IT AS DEEMED SALE. V. ANY OTHER GROUND THAT MAY BE TAKEN AT LATER STAGE W ITH THE PERMISSION OF THE HON'BLE BENCH. 2) THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 06.02.2008 DECLARING AN INCOME OF RS. 1,63,25,650/- AND AGRICULTURAL INCOME OF RS. 31,46, 000/- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME-TAX AC T, 1961 (IN SHORT THE ACT). THE ASSESSING OFFICER SELECTED THE CASE OF THE ASSESSEE UNDER COMPULSORY SCRUTINY AS THE AGRICULTURE INCOME EXCEE DS RS. 10 LAKHS AND ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT ON 24 .03.2008 WHICH WAS DULY SERVED UPON THE ASSESSEE. SUBSEQUENTLY, NOTICE UNDER SECTION 142(1) OF THE ACT DATED 20.06.2008 ALONG WITH DETAILED QUE STIONNAIRE WAS ALSO ISSUED. IN RESPONSE TO THE SAME, THE AUTHORIZED REP RESENTATIVE OF THE ASSESSEE APPEARED AND FILED INFORMATION AS CALLED B Y THE ASSESSING OFFICER. 3 3) AS PER THE RECORD OF THE ASSESSING OFFICER, THE HOUSING SOCIETY OF MLAS, OFFICIALLY NAMED THE PUNJABI CO-OP. HOUSE BUILDING SOCIETY LTD. MOHALI ENTERED INTO A TRIPARTITE JOINT DEVELOP MENT AGREEMENT WITH M/S HASH BUILDERS (P) LTD. CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT COMPANY LTD. MUMBAI ON 25.06.2007. BY V IRTUE OF THE TRIPARTITE AGREEMENT, IT WAS AGREED UPON AMONG THES E PARTIES THAT THE PUNJABI CO-OP. HOUSE BUILDING SOCIETY LTD., MOHALI, OWNER OF 21.2 ACRE LAND, SHALL TRANSFER ITS LAND TO M/S TATA HOUSING D EVELOPMENT COMPANY LTD. IN LIEU OF MONETARY CONSIDERATION AND CONSIDER ATION IN KIND AND EACH MEMBER OF THE PUNJABI CO-OP. HOUSE BUILDING SOCIETY LTD. HAVING A PLOT OF 500 SQ. YARD IN THE SOCIETY SHALL RECEIVE RS. 82 ,50,000/- AS MONETARY CONSIDERATION. ACCORDINGLY, A TOTAL MONETARY CONSID ERATION OF RS. 1064250000/- IS RECEIVABLE BY ALL THE INDIVIDUAL ME MBERS OF THE SOCIETY TAKEN TOGETHER. IN ADDITION TO THIS, AS CONSIDERATI ON IN KIND EACH SUCH MEMBER(I.E. MEMBERS OWNING PLOT OF 500 SQ. YD.) SHA LL RECEIVE ONE FURNISHED FLAT MEASURING 2250 SQ. FT. TO BE CONSTRU CTED BY M/S TATA HOUSING DEVELOPMENT COMPANY LTD. THE COST OF EACH F URNISHED FLAT @ RS. 4500/- SQ. FT. HAVING AN AREA OF 2250 SQ. FT. E ACH AMOUNTS TO RS. 1,01,25,000/- CR. 4 4) A SALIENT FEATURE OF THIS TRIPARTITE AGREEMENT I S THAT M/S HASH BUILDERS (P) LTD., CHANDIGARH, WILL BE RESPONSIBLE FOR MAKING PAYMENTS TO THE OWNER OF 21.2 ACRE LAND I.E. THE PUNJABI CO- OP HOUSE BUILDING SOCIETY LTD. MOHALI, IN CONSIDERATION OF THE LAND P URCHASED BY M/S TATA HOUSING DEVELOPMENT COMPANY. IN ACCORDANCE WITH THE TRIPARTITE AGREEMENT M/S HASH BUILDERS IS COMMITTED TO PAY THE MEMBERS OF PUNJABI CO-OP. HOUSE BUILDING SOCIETY LTD., MOHALI A TOTAL AMOUNT OF RS. 106,42,50,000/- AS FULL AND FINAL PAYMENT. 5) SIGNIFICANTLY, AS PER THE TRIPARTITE AGREEMENTS, THE FLATS TO BE PROVIDED TO THE MEMBERS OF THE SOCIETY SHALL BE PRO VIDED BY M/S TATA HOUSING DEVELOPMENT COMPANY LTD. THE INDIVIDUAL MEM BERS OF THE SOCIETY OWNING 500 SQ. YARD LAND IN THE SOCIETY HAV E RECEIVED RS. 33.00 LACS TILL DATE WHEREAS; INDIVIDUAL MEMBERS OF SOCIE TY OWNING 1000 SQ. YARD LAND IN THE SOCIETY HAVE RECEIVED RS. 66.00 LA CS TILL DATE. THE EXECUTION OF SALE-DEED AND RECEIPT OF PART CONSIDER ATION CLEARLY GIVES RISE TO INCOME IN THE FORM OF CAPITAL GAINS IN THE HANDS OF SOCIETY/INDIVIDUAL MEMBERS. IT IS, HOWEVER, OBSERVED THAT NO INCOME HA S BEEN DECLARED BY THE SOCIETY/INDIVIDUAL MEMBERS. 5.1 IT IS SIGNIFICANT TO MENTION THAT IN PURSUANCE OF THE TRIPARTITE AGREEMENT M/S HASH BUILDERS (P) LTD. CHANDIGARH HAS MADE THESE 5 PAYMENTS OF THE INDIVIDUAL MEMBERS OF THE SOCIETY. AS PER AGREEMENT, ASSESSEE RECEIVED 82,50,000/- IN ADDITION TO ONE FL AT OF 2250 SQ. FT. SO FAR HE HAS RECEIVED RS. 15,00,000/- IN F.Y. 2006-07 AND RS. 1,80,000/- IN THE F.Y. 2007-08 6) IN VIEW OF THE ABOVE POSITION, THE ASSESSING OFF ICER ASKED THE ASSESSEE TO EXPLAIN AS TO WHY CAPITAL GAIN MAY NOT BE CHARGED ON SURRENDERING OF RIGHTS AND FURTHER SALE TO HASH BUI LDERS/THDC. ASSESSEE HAS STATED THAT WHENEVER TRANSACTIONS WILL BECOME FINAL, THE SALE CONSIDERATION SHOULD BE CONSIDERED FOR CAPITAL GAIN . THE ASSESSING OFFICER DID NOT AGREE WITH THE REPLY OF THE ASSESSE E AND HELD THAT ASSESSEE HAS TRANSFERRED A PART OF HIS PLOT AND ALSO RECEIVE D PROPORTIONATE SALE CONSIDERATION OF RS. 15,00,000/-. SURRENDER OF PROP ERTY RIGHT IS A TRANSFER IN TERMS OF SECTION 2(47) OF THE ACT. THEREFORE, TH E CAPITAL GAIN AS WORKED IS CHARGED IN THE HANDS OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08. 7) ASSESSING OFFICER DISALLOWED OF THE M.P. OFFI CE EXPENSES FROM THE TOTAL EXPENSES OF RS. 53,290/-. THE ASSESS ING OFFICER IS OF THE VIEW THAT THESE EXPENSES ARE ALLOWABLE ON THE BASIS OF ACTUALLY SPENT BUT THE ASSESSEE HAS NOT MAINTAINED ANY EVIDENCE OF THE SE EXPENSES THUS, HE DISALLOWED THE HALF BALANCE I.E. 26,245/- 6 8) IN THE RETURN OF INCOME THE ASSESSEE HAS SHOWN A GRICULTURE INCOME OF RS. 31,46,000/-. DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO PROVE THE AGRICULTURE INC OME SHOWN AT RS. 31,46,000/- AND THE ASSESSEE STATED THAT FARMING O F AGRICULTURAL LAND IS DONE JOINTLY BY THE FAMILY ON BEHALF OF ASSESSEE, S H. SUKHBIR SINGH, SH. PARKASH SINGH BADAL AND SMT. SURINDER KAUR BADAL. T HE ASSESSING OFFICER PERUSED THE COMPLETE DETAILS OF INCOME/EXPE NSES FROM AGRICULTURE ACCOUNT AND NOTICED THAT TOTAL RECEIPTS ARE SHOWN A T RS. 98,35,393/- & AFTER REDUCING ESTIMATED EXPENSES OF RS. 30,35,393/ -, ASSESSEE HAS SHOWN NET AGRICULTURAL INCOME OF RS. 68,00,000/-. THE AGR ICULTURE INCOME ALSO INCLUDES SALE OF BY-PRODUCTS AMOUNTING TO RS. 3,00, 000/-. IN RESPECT OF OTHER PART OF AGRICULTURE INCOME THE ASSESSEE PRODU CED THE EVIDENCE IN THE FORM OF J FORMS OR LEASE DEEDS BUT THERE WAS NO EVI DENCE IN RESPECT OF SALE OF BY-PRODUCTS. IN THE ABSENCE OF EVIDENCE NO COGNIZANCE ON THIS SALE OF BY-PRODUCTS SHOWN IS TAKEN AND THIS SALE OF RS. 3,00,000/- IS TREATED AS INCOME FROM OTHER SOURCES INSTEAD OF AGRICULTURE IN COME AS THE ASSESSEE HAS SHOWN THIS RECEIPT IN THE TOTAL AGRICULTURE INC OME. THE ASSESSEE HAS ALSO SHOWN CASH SALE OF RS. 1,42,263/- OF WHICH TH ERE IS NO DOCUMENTARY EVIDENCE THEREFORE, THE ASSESSING OFFICER HAS NOT TREATED THIS INCOME FROM AGRICULTURE. ASSESSING OFFICER ASKED THE ASSES SEE TO PRODUCE 7 NECESSARY EVIDENCE FOR SUBSTANTIATING HIS CLAIM BUT HE HAS PRODUCED MOST OF SALE EVIDENCE, BUT NO DETAILS OR EVIDENCE OF AGR ICULTURE EXPENSES HAS BEEN PRODUCED BY THE ASSESSEE. FINALLY, ON ESTIMATI ON BASIS, THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS. 3,00, 000/- OUT OF AGRICULTURE INCOME AND TREATED IT THE INCOME FROM O THER SOURCES AS AGRICULTURE INCOME IS NOT COMPLETELY VERIFIABLE AND HE MADE THE ADDITION OF RS. 7,42,263/- AND THE ASSESSEES SHARE OF DISAL LOWANCE COMES TO RS. 3,43,370/- AS PER PERCENTAGE OF AGRICULTURE INCOME (46.26%) SHOWN BY THE FAMILY. HE COMPLETED THE ASSESSMENT ON 29.12.20 09 UNDER SECTION 143(3) OF THE ACT AS MENTIONED IN PARA 4 OF THE ASS ESSMENT ORDER. 9) LEARNED COMMISSIONER OF INCOME TAX, BATHINDA PER USED THE ORDER DATED 29.12.2009 PASSED BY THE ASSESSING OFFI CER UNDER SECTION 143(3) OF THE ACT AND IS OF THE VIEW THAT THE FULL VALUE OF CONSIDERATION I.E. RS. 82,50,000/- PLUS ONE FLAT WORTH OF RS. 1,0 1,25,000/-, TOTALING RS. 1,83,75,000/- WAS REQUIRED TO BE ADOPTED AS SALE CO NSIDERATION FOR THE PURPOSE OF CALCULATING CAPITAL GAINS U/S 48 READ W ITH SECTION 45 OF THE ACT, INSTEAD OF THE PROPORTIONATE SALE CONSIDERATIO N AS ADOPTED BY THE ASSESSING OFFICER IN HIS ORDER. ACCORDINGLY, LEARN ED COMMISSIONER OF INCOME TAX, BATHINDA, VIDE OFFICE LETTER DATED 28.1 0.2010, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE ASSESSMENT ORDER FRAMED BY THE A.O. ON 8 29.12.2009 FOR THE A.Y. 2007-08 IN THE ASSESSEES C ASE MAY NOT BE CANCELLED UNDER SECTION 263 OF THE ACT. IN RESPONSE TO THE SAME, THE ASSESSEE FILED HIS REPLY ON 02.12.2010 AND OBJECTED PROPOSED CANCELLATION OF ASSESSMENT ORDER UNDER SECTION 263 OF THE ACT ON THE VARIOUS GROUNDS, WHICH THE LEARNED COMMISSIONER OF INCOME TAX, BATHI NDA HAS MENTIONED IN THE IMPUGNED ORDER AT PAGE 4 TO 7. AFTER HEARING LEARNED COUNSEL FOR THE ASSESSEE AND PERUSING THE REPLY FILED BY HIM, L EARNED COMMISSIONER OF INCOME TAX, BATHINDA, PASSED THE IMPUGNED ORDER DATED 06.12.2010 UNDER SECTION 263 OF THE ACT AND CANCEL THE ASSESSM ENT ORDER DATED 29.12.2009 PASSED BY THE ASSESSING OFFICER UNDER SE CTION 143(3) OF THE ACT BEING ERRONEOUS AS WELL AS PREJUDICIAL TO THE I NTEREST OF REVENUE AND DIRECTED THE ASSESSING OFFICER TO FRAME A FRESH ASS ESSMENT IN THE LIGHT OF THE OBSERVATION MADE BY HIM IN THE IMPUGNED ORDER D ATED 06.12.2010. 10) AGGRIEVED BY THE IMPUGNED ORDER DATED 06.12.2010 PASSED BY LEARNED COMMISSIONER OF INCOME TAX, BATHINDA, UNDER SECTION 263 OF THE ACT, THE ASSESSEE FILED THE PRESENT APPEAL. 11) LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE IS THE MEMBER OF CO-OP. HOUSE BUILDING SOCIETY LTD. AND FI LED HIS RETURN OF INCOME ON 06.12.2008 FOR THE ASSESSMENT YEAR IN DIS PUTE SHOWING TOTAL INCOME AT RS. 1,63,25,650/- AND AGRICULTURAL INCOME OF RS. 31,46,000/-. 9 THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDE R SECTION 143(3) OF THE ACT ON 29.12.2009 DETERMINED THE TOTAL INCOME O F RS. 1,93,91,870/- PLUS AGRICULTURE INCOME OF RS. 28,02,630/-. THE INC OME DETERMINED WAS INCLUSIVE OF CAPITAL GAINS WORKED OUT BY THE ASSESS ING OFFICER AT RS. 25,96,207/-. ASSESSEE HAS RAISED OBJECTIONS TO CANC EL THE ASSESSMENT ON VARIOUS GROUNDS WHICH ARE MENTIONED IN THE REPLY FI LED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX, BATH INDA BUT THE SAME HAS NOT THOROUGHLY BEEN CONSIDERED BY HIM AND PASSE D THE IMPUGNED ORDER CONTRARY TO THE LAW AND FACTS ON THE FILE. HE FURTHER STATED THAT LEARNED COMMISSIONER OF INCOME TAX, BATHINDA, HAS A LSO NOT PROPERLY APPRECIATED THE CASE LAWS RELIED BY THE ASSESSEE BE FORE HIM AND HE WRONGLY CANCELLED THE ASSESSMENT ORDER BY USING THE POWER VESTED UNDER SECTION 263 OF THE ACT AND DIRECTED THE ASSESSING O FFICER TO FRAME FRESH ASSESSMENT. LEARNED COUNSEL FOR THE ASSESSEE FURTHE R ARGUED THAT IN THE PRESENT CASE, THE ASSESSING OFFICER HAS TAKEN POSSI BLE VIEW AFTER APPLYING HIS MIND AND THE LEARNED COMMISSIONER OF INCOME TAX DID NOT AGREE WITH THE VIEW TAKEN BY THE ASSESSING OFFICER FOR THE REA SON THAT THE VIEW TAKEN BY THE ASSESSING OFFICER HAS CAUSED LOSS OF REVENUE . WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN O NE VIEW WITH WHICH THE COMMISSIONER OF INCOME TAX DOES AGREE IT CANNOT BE TREATED AS 10 ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REV ENUE UNLESS THE VIEW TAKEN BY THE INCOME TAX OFFICER IS UNSUSTAINABLE IN THE EYE OF LAW. IN SUPPORT OF HIS CONTENTION HE RELIED UPON THE CASE L AWS I.E. COMMISSIONER OF INCOME TAX VS. MUNJAL CASTINGS REPORTED IN [2008 ] 303 ITR 23 [P&H] ; MALABAR INDUSTRIAL CO. LTD. VS. COMMISSION OF INCOME TAX REPORTED IN 243 ITR 83 (S.C.). AT LAST, HE REQUESTE D THAT THE IMPUGNED ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX, BATHINDA MAY BE CANCELLED. 12) ON THE CONTRARY, LEARNED DR STATED THAT EXACTLY SIMILAR ISSUE INVOLVED IN THE PRESENT APPEAL THAT HAS ALREADY BEE N DECIDED BY THIS BENCH AGAINST THE ASSESSEE AND IN FAVOUR OF REVENUE BY DISMISSING THE APPEAL FILED BY THE ASSESSEE ON 13.08.2013 PASSED I N I.T.A. NO. 295(ASR)/2011 FOR A.Y. 2007-08 IN THE CASE OF SMT. MONHIMDER KAUR JOSH VS. ASSISTANT COMMISSIONER OF INCOME TAX, HOSH IARPUR. THIS BENCH HAS FOLLOWED THE ORDER DATED 29.07.2013 PASSE D BY I.T.A.T., CHANDIGARH BENCH, B IN THE CASE OF CHARANJIT SING H ATWAL VS. ITO, WARD VI(1), LUDHIANA, PASSED IN I.T.A. NO. 448/CHD/ 2011 ALONG WITH MANY OTHER CASES AND HELD THAT IMPUGNED ORDER PASSE D BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT IS ERRONEOU S AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE AND UPHELD T HE ORDER OF THE 11 COMMISSIONER OF INCOME TAX PASSED UNDER SECTION 263 OF THE ACT BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. HE REQ UESTED THAT THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 13) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER PA SSED BY LEARNED COMMISSIONER OF INCOME TAX, BATHINDA, DATED 06.12.2 010 ALONG WITH CASE LAWS RELIED UPON BY LEARNED COUNSEL FOR THE AS SESSEE. WE HAVE ALSO PERUSED THE ORDER DATED 29.07.2013 PASSED BY I.T.A. T., CHANDIGARH BENCH B, CHANDIGARH, IN THE CASE OF CHARANJIT SIN GH ATWAL VS. ITO, WARD VI(1), LUDHIANA, PASSED IN I.T.A. NO. 448/CHD/ 2011 ALONG WITH MANY OTHER CASES. THE FACTS AND CIRCUMSTANCES OF TH E AFORESAID CASE ARE TOTALLY IDENTICAL TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE I.T.A.T., CHANDIGARH BENCH HAS THOROUGHLY ADJUDICAT ED THE ISSUE IN DISPUTE AND DECIDED AGAINST THE SIMILARLY SITUATED ASSESSEES AND IN FAVOUR OF THE REVENUE BY DISMISSING THE APPEAL FILED BY TH E ASSESSEES ON 29.07.2013. IN THE PRESENT CASE, WE HAVE TO SEE WHE THER THE ORDER PASSED BY THE ASSESSING OFFICER DATED 29.12.2009 UNDER SEC TION 143(3) OF THE ACT IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTE REST OF REVENUE OR NOT. 14) THE EXECUTION OF SALE-DEED AND RECEIPT OF PART C ONSIDERATION CLEARLY GIVES RISE TO INCOME IN THE FORM OF CAPITAL GAINS IN THE HANDS OF 12 SOCIETY/INDIVIDUAL MEMBERS. IT IS, HOWEVER, OBSERVE D THAT NO INCOME HAS BEEN DECLARED BY THE SOCIETY/INDIVIDUAL MEMBERS. IT IS SIGNIFICANT TO MENTION THAT IN PURSUANCE OF THE TRIPARTITE AGREEME NT M/S HASH BUILDERS (P) LTD. CHANDIGARH HAS MADE THESE PAYMENTS OF THE INDIVIDUAL MEMBERS OF THE SOCIETY. AS PER AGREEMENT, ASSESSEE RECEIVED 82,50,000/- IN ADDITION TO ONE FLAT OF 2250 SQ. FT. SO FAR HE HAS RECEIVED RS. 15,00,000/- IN F.Y. 2006-07 AND RS. 1,80,000/- IN THE F.Y. 2007 -08. IN VIEW OF AREA TRANSFERRED TO M/S HASH BUILDERS/THDC, THE ASSESSIN G OFFICER HAS WORKED OUT THE CAPITAL GAINS VIDE ORDER DATED 29.12 .2009 PASSED UNDER SECTION 143(3) OF THE ACT AS UNDER:- COST OF ACQUISITION OF PLOT OF AREA 6,55,000/- 500 SQ. YDS. 1,50,000/- 5,05,000/- TOTAL AREA WITH SOCIETY 21.2 ACRES SOLD ON 25, FEB, 2007 3.08 ACR ES(% AREA SOLD 14.528%) SALE CONSIDERATION TO THE ASSESSEE 82,50,000/-+ONE FLAT 2250 SQ. FT. @ RS. 4500 SQ. FT. 1,01,25,000/- I.E. RS. 10125000 1,83,75,000/- RECEIVED BY ASSESSEE IN F.Y. 2006-07 15,00,000/- PERCENTAGE OF CONSIDERATION IN PROPORTIONATE LAND SOLD BY SOCIETY IN F.Y. 2006-07 14.528% THEREFORE, SALE CONSIDERATION RELATING TO F.Y. 2006-07 14.528 X 18375000 100 = 2669575/- CAPITAL GAIN: SALE CONSIDERATION PROPORTIONATE CO ST 13 2669575 - 73368 = 2596207 15) THE ASSESSING OFFICER ALSO DISALLOWED AN AMOUNT O F RS. 3 LACS OUT OF AGRICULTURAL INCOME AND TREAT THE INCOME FRO M OTHER SOURCES AS AGRICULTURAL INCOME IS NOT COMPLETELY VERIFIABLE. A SSESSING OFFICER COMPLETED THE ASSESSMENT ON 29.12.2009 UNDER SECTIO N 143(3) OF THE ACT. FINALLY, THE ASSESSING OFFICER HAS COMPUTED THE TAX ABLE INCOME AS UNDER: 4. IN VIEW OF THE ABOVE DISCUSSION, TAXABLE INCOME OF THE ASSESSEE IS COMPUTED AS UNDER:- INCOME FROM SALARY 1,50,00,000/- INCOME FROM HOUSE PROPERTY 12,04,778/- ADDITION AS PER PARA-2 25,96,207/- INCOME FROM OTHER SOURCES BANK INTEREST 22,863/- SALARY AS MP RAJYA SABHA 1,98,009/- ADDITION AS PER PARA-3 26,645/- ADDITION AS PER PARA-4 3,43,370/- 5,90,887/- 5,90,887/- TOTAL INCOME 1,93,91,872/- +28,02,630/-A.I. ROUNDED TO 1,93,91,870/- +28,02,630/-A.I. ASSESSED AT TOTAL INCOME OF RS. 1,93,91,870/- + 28, 02,630/- AGRICULTURE INCOME. TAX AND INTEREST U/S 234A, 234B AND 234C IS CHARGED AS PER ITNS 150 WHICH FORMS PART OF THIS OR DER. DEMAND NOTICE, CHALLAN, ALONGWITH COPY OF THIS ORDER ISSUE D FOR SERVICE UPON THE ASSESSEE. THE ADDITION OF RS. 25,96,207/- REPRE SENTS THE INCOME ON 14 WHICH PENALTY PROCEEDINGS U/S 271(1)(C) ARE INITIAT ED FOR NOT SHOWING CAPITAL GAIN IN THE RETURN OF INCOME. 16) THE FULL VALUE OF CONSIDERATION I.E. RS. 82,50 ,000/- PLUS ONE FLAT WORTH OF RS. 1,01,25,000/-, THUS TOTALING RS. 1,83, 75,000/- WAS REQUIRED TO BE ADOPTED AS SALE CONSIDERATION FOR THE PURPOSE OF CALCULATING CAPITAL GAINS U/S 48 READ WITH SECTION 45 OF THE ACT, INST EAD OF THE PROPORTIONATE SALE CONSIDERATION AS ADOPTED BY THE ASSESSING OFF ICER IN HIS ORDER. ACCORDINGLY, LEARNED COMMISSIONER OF INCOME TAX, BA THINDA, VIDE OFFICE LETTER DATED 28.10.2010, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE ASSESSMENT ORDER FRAMED BY THE A.O. ON 29.12.2009 F OR THE A.Y. 2007-08 IN THE ASSESSEES CASE MAY NOT BE CANCELLED UNDER S ECTION 263 OF THE ACT. IN RESPONSE TO THE SAME, THE ASSESSEE FILED HIS REP LY ON 02.12.2010 AND OBJECTED PROPOSED CANCELLATION OF ASSESSMENT ORDER UNDER SECTION 263 OF THE ACT ON THE VARIOUS GROUNDS, WHICH THE LEARNED C OMMISSIONER OF INCOME TAX, BATHINDA HAS MENTIONED IN THE IMPUGNED ORDER AT PAGE 4 TO 7. THE SAME ARE REPRODUCED AS UNDER: (I) THAT ALTHOUGH THE ASSESSMENT ORDER U/S 143(3) DATED 29.12.2009 IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08 IS ERRONEOUS TO THE EXTENT THAT NO CAPITAL-GAINS WAS TAXABLE AT ALL YET THE SAME IS NOT PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY , THE PROVISIONS OF SECTION 263 CANNOT BE PRESSED INTO SERVICE IN THE P RESENT CASE. (II) THAT OUT OF THE TOTAL LAND AREA OF 21.2 ACRES (APPROXIMATELY) OWNED BY THE SOCIETY, ONLY 3.08 ACRES HAS BEEN TRAN SFERRED BY THE SOCIETY 15 BY EXECUTING A REGISTRATION DEED DURING THE YEAR EN DING 31.03.2007 IN ORDER TO SAFEGUARD THE INTEREST OF THE TRANSFEREE. (III) WITHOUT PREJUDICE TO THE ABOVE SUBMISSIONS, IT IS ALSO STATED THAT FOR THE YEAR ENDING 31.03.2007, THE ASSESSEE HAS RE CEIVED ONLY A PETTY AMOUNT OF RS. 15,00,000/- AS AGAINST THE TOTAL AMOU NT OF RS. 1,83,75,000/- (INCLUSIVE OF THE VALUE OF FLAT) WHIC H IS EXPECTED TO BE RECEIVED IN THE ENSUING YEARS. IN THE CIRCUMSTANCES , IT IS SUBMITTED THAT SO LONG AS THE IMPUGNED AGREEMENT IS NOT HONOURED IN L ETTER AND SPIRIT AND THE ENTIRE PAYMENT AS WELL AS POSSESSION OF FLAT IS NOT RECEIVED BY THE ASSESSEE, THE CAPITAL GAIN WOULD NOT BE LIABLE TO T AX IN THE HANDS OF THE ASSESSEE. FURTHER, CAPITAL GAINS WILL ARISE IN TWO STAGES FIRST WHEN THE ENTIRE LAND MEASURING 21.2 ACRES IS TRANSFERRED BY THE SOCIETY AND SECOND WHEN THE DEVELOPERS HAND OVER THE POSSESSING OF THE FLAT TO THE ASSESSEE. IN THE PRESENT CASE, ONLY ADVANCE MONEY OF RS. 15,0 0,000/- HAS BEEN TAKEN. THE ASSESSEE IS NOT DENYING THE TAX LIABILIT Y ON THE TOTAL SALE CONSIDERATION BUT THE YEAR OF TAXABILITY. UNDER NO CIRCUMSTANCES THE ADVANCE RECEIVED CAN BE TAXED WHEN THE DEAL HAS NOT BECOME FINAL. (IV) SECTION 2(47) OF THE IT ACT, 1961 NO DOUBT P RESCRIBES THAT WHEN POSSESSION IS GIVEN, TRANSFER TAKES PLACE IN PART P ERFORMANCE OF THE CONTRACT. BUT IN THE CASE UNDER CONSIDERATION, LAND MEASURING 3.08 ACRES ONLY HAS BEEN TRANSFERRED TILL 30.03.2007 AS A MEAS URE OF SECURITY AND TO SAFEGUARD THE INTEREST OF TRANSFEREE. THE CONSTRUCT ION OF FLATS HAS NOT STARTED YET. THIS EVENT IS LIKELY TO TAKE PLACE MUC H LATER, UNDER NORMAL CIRCUMSTANCES. IT IS A MATTER OF COMMON KNOWLEDGE T HAT THE YEAR OF TAXABILITY IS THE YEAR IN WHICH THE FLAT IS HANDED OVER. TO ASSUME THAT THE TRANSFER TOOK PLACE IN ANY EARLIER YEAR WHEN THE FL AT WAS NOT IN EXISTENCE AND CONSIDERATION NOTIONALLY FIXED ON THE BASIS OF MARKET VALUE AT A LATER DATE IS FALLACIOUS AND IRRATIONAL. (V) WITH REGARD TO THE CASE OF JASBIR SINGH SARKA RIA REPORTED AT (2007) 294 ITR 196 (AAR) RELIED UPON BY YOUR GOODSE LF, IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE AUTHORITY O F ADVANCE RULING IN ITS JUDGMENT HAS EXPRESSED A DEEP CONCERN OVER THE WORKING OF CAPITAL GAINS IN SUCH CIRCUMSTANCES. FOR THE SAKE OF READY REFERENCE, THE RELEVANT EXTRACT IS REPRODUCED BELOW: ONE POINT OF CONCERN. 16 18. WE HAVE TO ADVERT TO ONE ASPECT WHICH HAS CAU SED SOME CONCERN TO US. WHAT WILL HAPPEN IF DURING THE YEAR FOLLOWING THE ONE IN WHICH THE DEEMED TRANSFER TOOK PLACE, THE PU RPOSED VENTURE COLLAPSES FOR REASONS SUCH AS REFUSAL OF PERMISSION S, THE DEVELOPER FACING FINANCIAL CRUNCH ETC. BY THAT TIME THE OWNER WOULD HAVE RECEIVED ONLY A PART OF THE AGREED CONSIDERATION, B UT HE IS OBLIGED TO FILE THE RETURN SHOWING THE ENTIRE CAPITAL GAIN BASED ON THE FULL SALE PRICE WHETHER OR NOT RECEIVED DURING THE YEAR OF DEEMED TRANSFER. IN SUCH AN EVENTUALITY, HARDSHIP MAY BE C AUSED TO THE OWNER WHO WOULD HAVE PAID FULL TAX. NO DOUBT, SUCH A SITUATION COULD BE AVOIDED IF THE CONTENTION OF THE APPLICANT IS ACCEPTED. ON DEEP CONSIDERATION, HOWEVER WE FIND THAT THE CONSTR UCTION OF THE RELEVANT PROVISION SHOULD NOT BE CONTROLLED BY GIVI NG UNDUE IMPORTANCE TO SUCH HYPOTHETICAL SITUATION. NORMALL Y, THE OWNER EXECUTES POWER OF ATTORNEY OR DOES SIMILAR ACTS TO LET THE TRANSFEREE TAKEN POSSESSION ONLY AFTER THE BASIC PERMISSIONS A RE GRANTED AND IS SATISFIED ABOUT THE ABILITY OF TRANSFEREE/DEVELO PER TO FULFILL THE CONTRACT. IN SPITE OF THAT, IF SUCH A RARE SITUATIO N TAKE PLACE, THE OWNER/TRANSFEROR WILL NOT BE WITHOUT REMEDY. HE CAN FILE A REVISED RETURN AND MADE OUT A CASE FOR EXECUTION OF REDUCTI ON OF INCOME. HOWEVER, IF THE TIME LIMIT FOR FILING REVISED RETUR N EXPIRES, THE DIFFICULTY WILL ARRIVE. IT IS FOR THE PARLIAMENT OF THE CENTRAL GOVERNMENT TO PROVIDE A REMEDY TO THE ASSESSEE IN S UCH CASES. MOREOVER, THE OTHER SIDE OF THE PICTURE IS DEPICTED IN PARA 13.3 (SUPRA) SHOULD ALSO BE KEPT IN VIEW. IN VIEW OF THESE OBSERVATIONS OF THE HON'BLE AAR, D UE COGNIZANCE TO THEM NEED BE GIVEN IN THE INTEREST OF JUSTICE. (VI) IN THE PRESENT CASE, THE AGREEMENT IN QUESTIO N IS A DEVELOPMENT AGREEMENT. SUCH DEVELOPMENT AGREEMENTS DO NOT CONST ITUTE TRANSFER IN GENERAL LAW. THEY ARE SPREAD OVER A PERIOD OF TIME. THEY CONTEMPLATE VARIOUS STAGES. ACCORDINGLY, THE PROVISIONS OF SECT ION 2(47)(V) ARE NOT APPLICABLE IN THE PRESENT CASE IN TRUE SENSE. (VII) UNDER SECTION 2(47)(V), ANY TRANSACTION INVO LVING ALLOWING OF POSSESSION TO BE TAKEN OVER OR RETAINED IN PART PER FORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN S. 53A OF THE TRANSFER OF PROPERTY ACT WOULD 17 COME WITHIN THE AMBIT OF S. 2(47)(V). IN ORDER TO A TTRACT SEC. 53A OF THE TRANSFER OF PROPERTY ACT, THE FOLLOWING CONDITIONS NEED TO BE FULFILLED:- A. THERE SHOULD BE A CONTRACT FOR CONSIDERATION; B. IT SHOULD BE IN WRITING; C. IT SHOULD BE SIGNED BY THE TRANSFEROR; D. IT SHOULD PERTAIN TO TRANSFER OF IMMOVABLE PROPE RTY; E. THE TRANSFER SHOULD HAVE TAKEN POSSESSION OF THE PROPERTY & F. THE TRANSFEREE SHOULD BE READY AND WILLING TO PERFORM HIS PART OF CONTRACT THAT EVEN ARRANGEMENTS CONFERRING PRIVILEGES OF OWNERSHIP WITHOUT TRANSFER OF TITLE COULD FALL U/S 2(47)(V). THE AGREEMENT, IN QUESTION, IS A DEVELOPMENT AGREEMENT. SUCH DEVELOPM ENT AGREEMENTS DO NOT CONSTITUTE TRANSFER IN GENERAL LAW. THEY ARE SP READ OVER A PERIOD OF TIME. THEY CONTEMPLATE VARIOUS STAGES. UNFORTUNATEL Y, THIS ASPECT HAS NOT BEEN CONSIDERED BY THE HON'BLE AUTHORITY FOR ADVANC E RULINGS IN THE CASE OF SHRI JASBIR SINGH SARKARIA REPORTED AT 294 ITR 196(AAR) WHICH HAS BEEN RELIED UPON BY YOUR GOODSELF. NO REASON HA S BEEN GIVEN WHY THAT TEST HAS NOT BEEN APPLIED PARTICULARLY WHEN TH E AGREEMENT, IN QUESTION, READ AS A WHOLE, SHOWS THAT IS A DEVELOPM ENT AGREEMENT. THERE IS A DIFFERENCE BETWEEN CONTRACT ON ONE HAND AND PE RFORMANCE ON THE OTHER HAND. ONLY A TOKEN MONEY/NOMINAL PAYMENT WAS RECEIVED BY THE ASSESSEE DURING THE PERIOD CORRESPONDING TO THE ASS ESSMENT YEAR 2007-08. DEVELOPMENT AGREEMENTS DO NOT TRANSFER THE INTEREST IN THE PROPERTY TO THE DEVELOPER IN GENERAL LAW. IN THIS CASE, THE DEV ELOPER EVEN DID NOT OBTAIN A COMMENCEMENT CERTIFICATE DURING THE YEAR E NDING 31.03.2007 AND THUS THE DATE OF DEVELOPMENT AGREEMENT IS NOT T HE MATERIAL DATE TO DECIDE THE YEAR OF CHARGEABILITY 17) LEARNED COMMISSIONER OF INCOME TAX, BATHINDA, THO ROUGHLY GONE THROUGH THE REPLY FILED BY THE ASSESSEE BEFORE HIM AND DISCUSSED THE SAME PARA-WISE IN HIS IMPUGNED ORDER IN PARA 4 AT PAGE 7 TO 14, WHICH ARE REPRODUCED AS UNDER:- 18 4. THE CONTENTIONS OF THE ASSESSEE HAS BEEN CAREF ULLY GONE THROUGH AND DULY CONSIDERED. THESE ARE DISCUSSED PA R WISE AS UNDER:- (I) THE CONTENTION OF THE ASSESSEE IN THE 1 ST PARA OF SUBMISSIONS THAT THE CAPITAL GAIN WAS NOT TAXABLE A T ALL FOR THE ASSESSMENT YEAR 2007-08 HAS NO MERIT AND WITHOUT AN Y BASIS. IN VIEW OF CLAUSE 2.1 OF THE JOINT DEVELOPMENT AGREEMENT, T HE OWNER HAS AT THE TIME OF MAKING THE AGREEMENT IRREVOCABLY AND UNEQUI VOCALLY GRANTED AND ASSIGNED IN PERPETUITY ALL ITS RIGHTS TO DEVELO P, CONSTRUCT, MORTGAGE, LEASE, LICENSE, SELL AND TRANSFER THE PRO PERTY (I.E. 21.2 ACRES OF LAND) ALONG WITH ANY AND ALL CONSTRUCTIONS, TREE S ETC IN FAVOUR OF THDC FOR THE PURPOSE OF DEVELOPMENT, CONSTRUCTION, MORTGAGE, SALE, TRANSFER, LEASE, LICENSE AND/OR EXPLOITATION FOR FU LL UTILIZATION OF THE PROPERTY AND TO EXECUTE ALL DOCUMENTS NECESSARY TO CARRY OUT, FACILITATE AND ENFORCE THE RIGHTS IN THE PROPERTY. THUS, IN FA CT THE OWNER HAS IRREVOCABLY AND UNEQUIVOCALLY GRANTED AND ASSIGNED IN PERPETUITY ALL THE RIGHTS WHICH AN OWNER CAN HAVE IN AN IMMOVABLE PROPERTY. AS OBSERVED ABOVE, THE CAPITAL GAINS AROSE FOR THE FAC T THAT IT WAS A CASE OF TRANSFER OF CAPITAL ASSET GENERALLY AND ALSO IN VIEW OF SEC. 2(47)(II), 2(47(V) AND 2(47)(VI). FURTHER, SECTION 45(1) OF TH E ACT PROVIDES THAT ANY GAINS ARISING FROM THE TRANSFER OF A CAPITAL AS SET EFFECTED IN THE PREVIOUS YEAR SHALL BE DEEMED TO BE THE INCOME OF T HE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE. THE TRANSFER IN THI S CASE HAS BEEN EFFECTED ON 25.02.2007 THROUGH AN TRIPARTITE AGREEM ENT AS DISCUSSED ABOVE I.E. IN THE PREVIOUS YEAR 2006-07. HENCE, THE CAPITAL GAINS ARISING THEREON ARE TAXABLE U/S 45 OF THE ACT IN TH E PREVIOUS 2006-07 RELEVANT TO THE A.Y. 2007-08. (II) THE CONTENTION OF THE ASSESSEE THAT ONLY 3. 08 ACRES HAS BEEN TRANSFERRED BY THE SOCIETY BY EXECUTING A REGI STRATION DEED DURING THE YEAR ENDING 31.03.2007 HAS ALSO BEEN CONSIDERED . AS OBSERVED ABOVE AND IN VIEW OF CLAUSE 2.1 OF THE JOINT DEVELO PMENT AGREEMENT, THE OWNER HAS AT THE TIME OF MAKING THE AGREEMENT I .E. ON 25.02.2007, IRREVOCABLY AND UNEQUIVOCALLY GRANTED AND ASSIGNED IN PERPETUITY ALL ITS RIGHTS TO DEVELOP, CONSTRUCT, MORTGAGE, LEASE, LICENSE, SELL AND TRANSFER THE PROPERTY (I.E. 21.2 ACRES OF LAND). TH E TRANSFER OF 3.08 ACRES OF LAND BY THE SOCIETY BY EXECUTING REGISTRAT ION DEED IS IN FACT PERFORMANCE OF CLAUSE 4.1(II) OF THE AGREEMENT. IT WAS AGREED AMONG THE PARTIES THAT THE ASSESSEE SHALL RECEIVE THE AMO UNT OF RS. 15 LACS ON 19 TRANSFER OF 3.08 ACRES OF LAND BY THE SOCIETY. THUS , THE TRANSFER WITHIN THE MEANING OF SECTION 45 OF THE ACT TOOK PLACE ON 25.02.2007 AND THE EXECUTION OF REGISTRATION DEED IS AN ACT ON THE PAR T OF THE ASSESSEE/SOCIETY OF PERFORMING MUTUALLY AGREED CLAU SES OF THE AGREEMENT. PERUSAL OF THE VARIOUS CLAUSES OF THE JOINT DEVE LOPMENT AGREEMENT AND IN PARTICULAR CLAUSE 2.1, ACCORDINGLY TO WHICH THE OWNER THEREBY HANDED OVER THE ORIGINAL TITLE DEEDS OF THE PROPERTY AND ALSO HANDED OVER THE PHYSICAL, VACANT POSSESSION OF THE PROPERTY (21.2 ACRES OF THE LAND ) TO THDC SIMULTANEOUS TO THE EXE CUTION AND REGISTRATION OF THIS AGREEMENT TO DEVELOP THE SAME AS SET OUT, REVEALS THAT THE CASE OF ASSESSEE WAS ALSO COVERED BY THE P ROVISIONS OF SEC 2(47)(V) OF THE ACT. THE ASSESSEE RECEIVED PART OF THE ENTIRE CONSIDERATION DURING THE YEAR ON ACCOUNT OF EXECUTI ON AND REGISTRATION OF THIS AGREEMENT. THE PHYSICAL VACANT POSSESSION O F THE ENTIRE PROPERTY OF 21.02 ACRES OF LAND WAS HANDED TO THDC. THUS THIS IS ALSO A CASE OF A TRANSACTION INVOLVING THE ALLOWING OF T HE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT. THE FACTS OF THE CASE HAVE SIMILARLY TO THE FACTS IN THE CASE OF CIT V.K. JEELANI BASHA, 256 ITR 282 (MAD), WHERE THE HON'BLE COURT AFTER ANALYZING THE PROVISIONS OF SEC . 2(47) HAVE BEEN THAT ONCE POSSESSION, EVEN FOR A PART OF THE PROPER TY WAS HANDED OVER TO THE TRANSFEREE, FOR THE PURPOSE OF S. 2(47)(V) R EAD WITH S. 45 OF THE ACT, THE TRANSFER WAS COMPLETE. BY VIRTUE OF THE CLAUSES OF THE JOINT DEVELOPMEN T AGREEMENT VARIOUS RIGHTS IN THE PROPERTY WERE TRANSFERRED/ASSIGNED/GRANTED TO THDC. [REFER CLAUSE 2.1 OF THE AGREEMENT]. AT THE SAME TIME, THE PHYSICAL POSSESSI ON OF THE WHOLE PROPERTY WAS HANDED OVER TO THDC. APART FROM THE OT HER PROVISIONS OF SEC. 2(47), THE MEMBERS CASES ARE ALSO SPECIFICA LLY COVERED BY THE SPECIFIC PROVISIONS OF SEC. 2(47)(V). IT SHOULD BE NOTED THAT THE OWNERS WHICH INCLUDED THE MEMBERS WERE NOT LEFT WITH ANY R IGHT IN THE LAND EXCEPT THE RIGHT TO RECEIVE THE ENTIRE CONSIDERATI ON. THE FACT IS THAT THERE WAS TRANSFER OF CAPITAL ASSET BY THE MEMBERS IN THE PREVIOUS YEAR RELEVANT TO THE A.Y. 2007-08 AND THE ENTIRE CONSID ERATION WHICH IS FULL VALUE OF THE CONSIDERATION HAD ACCRUED TO THE MEMBERS IS TO BE 20 CHARGED AS CAPITAL GAINS IN THE A.Y. 2007-08. THERE IS NO PROVISION TO ASSESS A CAPITAL GAIN IN PARTS IN DIFFERENT ASSESSM ENT YEARS. (III) THE THIRD CONTENTION OF THE ASSESSEE THAT H E HAS RECEIVED ONLY AN AMOUNT OF RS. 15 LACS AS AN ADVANCE FOR THE YEAR ENDING 31.03.2007 OUT OF TOTAL CONSIDERATION OF 1,83,75,00 0/- AND HENCE THE SAME CANNOT BE TAXED WHEN THE DEAL HAS NOT BECOME F INAL, HAS BEEN DULY CONSIDERED. HOWEVER, THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE. THE FACT IS THAT THE ASSESSEE HAD ALLOTME NT RIGHTS IN THE IDENTIFIED DEMARCATED PARCEL OF LAND IN THE SOCIETY . THE ASSESSEE SURRENDERED HIS ALLOTMENT RIGHTS AND THE ASSESSEE A ND THE SOCIETY ENTERED INTO THE JOINT DEVELOPMENT AGREEMENT IN LIE U OF ENTIRE CONSIDERATION AS DESCRIBED IN THE JOINT DEVELOPMEN T AGREEMENT. THE RECEIPT OF CONSIDERATION WAS STRUCTURED AND THE ASS ESSEE RECEIVED PART OF THE ENTIRE CONSIDERATION AS CASH FROM TIME TO TIME IRRESPECTIVE OF THE FACT WHETHER THE PORTION OF LAND INITIALLY BELO NGING TO HIM WAS REGISTERED OR NOT. AFTER THE SURRENDER OF ALLOTMENT RIGHTS THE ENTIRE PROPERTY WAS TAKEN AS ONE AND THE PART OF ENTIRE C ONSIDERATION WAS DISTRIBUTED AMONGST ALL THE MEMBERS AS PER THE PAYM ENT SCHEDULE DESCRIBED IN THE JOINT DEVELOPMENT AGREEMENT UNDER THE HEAD CONSIDERATION. THE PAYMENT SCHEDULE AS MENTIONED IN THE JOINT DEVELOPMENT AGREEMENT HAS NO BEARING ON THE BASIC M ATRIX THAT THERE WAS TRANSFER OF THE CAPITAL ASSET AS PER SEC 2(47) OF THE ACT ON THE DATE OF THE JOINT DEVELOPMENT AGREEMENT ITSELF. THE PAY MENT SCHEDULE IS RELEVANT ONLY TO THE EXTENT IT REPRESENTS MUTUALLY AGREED MODE OF DISBURSEMENT OF CONSIDERATION WHICH HAD ACCRUED TO EACH MEMBER IN ACCORDANCE WITH THE AGREEMENT. AS PER THE SEC. 45 R .W.S. 48 OF THE IT ACT, ANY PROFIT UNDER THE HEAD CAPITAL GAINS SHAL L BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSF ER TOOK PLACE AND IS NOT DEPENDENT ON THE ACTUAL RECEIPT OF CONSIDERATIO N. ON PERUSAL OF THE VARIOUS CLAUSES OF THE JOINT DEVELOPMENT AGREEMENT, IT IS FOUND THE CASE OF THE ASSESSEE ON FACTS WAS ALSO COVERED BY THE PROVISIONS OF SEC. 2(47)(VI ), WHICH PROVIDES THAT TRANSFER IN RELATION TO A CAPITAL ASSET INCL UDES ANY TRANSACTION WHICH HAS EFFECT OF TRANSFERRING OR ENABLING THE EN JOYMENT OF ANY IMMOVABLE PROPERTY. THE ASSIGNMENT AND GRANT OF VAR IOUS RIGHTS IN THE PROPERTY IN FAVOUR OF THDC AND HANDING OVER THE ORI GINAL TITLE DEEDS AS WELL AS HANDLING OVER OF THE PHYSICAL VACANT POS SESSION OF HIS SHARE 21 IN THE 21.2 ACRES OF LAND HAS THE EFFECT OF TRANSFE RRING OR ENABLING THE ENJOYMENT OF THE SAID PROPERTY TO/BY THDC. THE AMOU NTS RECEIVED UNDER THE SAID AGREEMENT WERE PART OF THE SALE CONS IDERATION BY WHATEVER NAME CALLED. AS PER THE JOINT DEVELOPMENT AGREEMENT ON ACCOUNT OF TRANSFER OF CAPITAL ASSET, THE OWNERS WE RE TO RECEIVE THE CONSIDERATION AS PER CLAUSE 4. THE PAYMENT SCHEDULE WAS STRUCTURED AND THE PAYMENTS/CONSIDERATION RECEIVED BY THE ASSE SSEE IN F.Y. 06-07 AND 07-08 AND/OR IN SUBSEQUENT YEARS ARE PART OF TH E ENTIRE CONSIDERATION AS DECIDED BY THE PARTIES TO THE AGR EEMENT. THE ARGUMENT OF PARTIAL EXECUTION OF THE AGREEME NT TAKEN BY THE ASSESSEE IS WITHOUT ANY SOUND BASIS SO FAR A S THE TAXABILITY OF THE ENTIRE CONSIDERATION IN A.Y. 2007-08 IS CONCE RNED. IN ANY JOINT DEVELOPMENT AGREEMENT INVOLVING PARTIES AND WHOSE L IABILITIES ARE SPREAD OVER A PERIOD, ALL THE ACTS DO NOT COME TO E ND/CLOSE ON THE EXECUTION AND REGISTRATION OF THE AGREEMENT JUST BE CAUSE CERTAIN ACTS AND STRUCTURED RECEIPT OF THE ENTIRE CONSIDERATION INVOLVES MORE THAN ONE PREVIOUS YEAR. IT DOES NOT AFFECT THE TAXABILIT Y OF THE SAME TRANSACTION IN ONE PREVIOUS YEAR IN ACCORDANCE WITH SEC. 45 R.W.S. SEC. 48. THE LAW, ON THIS ISSUE IS UNAMBIGUOUS AND CLEAR . AS PER SEC. 45, THE INCOME TAX IS TO BE CHARGED UNDER THE HEAD CAP ITAL GAINS ON ANY PROFIT ON TRANSFER OF CAPITAL ASSET AND SHALL BE DE EMED TO BE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE . THE INCOME IS DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHI CH TRANSFER TOOK PLACE. THUS, YEAR OF TRANSFER IS THE CRUCIAL YEAR A ND NOT THE TIME OF RECEIPT OF THE CONSIDERATION OR THE FINALITY OF CER TAIN ACTS AND OBLIGATIONS ENSHRINED IN THE AGREEMENT. AS EVIDENT FROM THE FACTS IN THIS CASE THE TRANSFER OF CAPITAL ASSET TOOK PLACE IN A.Y. 2007-08 I.E. ON 25.02.2007. (IV) THE CONTENTION OF THE ASSESSEE THAT THE CONS TRUCTION OF FLATS HAS NOT YET STARTED AND AS SUCH THE YEAR OF T AXABILITY IS THE YEAR IN WHICH THE FLAT IS HANDED OVER TO THE ASSESSEE HAS A LSO BEEN CONSIDERED CAREFULLY. HOWEVER, IT IS OBSERVED THAT THE CONTENT ION OF THE ASSESSEE IS NOT LEGALLY ACCEPTABLE FOR THE FACT THAT THE TER M ENTIRE CONSIDERATION IN THE JOINT DEVELOPMENT AGREEMENT I S DEFINED/DESCRIBED IN CLAUSE 4.2 OF THE AGREEMENT WH ICH STATES INTER ALIA. IT IS EXPRESSLY PROVIDED THAT THE PAYMENT TO BE MAD E BY HASH TO THE OWNER AND/OR TO THE RESPECTIVE MEMBERS OF THE O WNER (AS THE CASE 22 MAY BE) AND THE FLATS TO BE ALLOTTED TO THE ALLOTTE ES AS SET OUT IN THIS CLAUSE 4.2 SHALL HEREINAFTER BE COLLECTIVELY REFERR ED TO AS THE ENTIRE CONSIDERATION. THE CONSIDERATION FOR THE PURPOSE OF COMPUTATION OF PROFITS UNDER THE HEAD CAPITAL GAINS HAS TO BE TA KEN THE FULL VALUE. THERE IS NO CONCEPT OF PART OF FRAGMENTED VALUE FOR COMPUTING THE CAPITAL GAINS. THE MODE OF COMPUTATION OF CAPITAL G AINS IS PRESCRIBED IN SEC. 48 OF THE ACT. AS PER THIS SECTION, THE FUL L VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T HE TRANSFER OF THE CAPITAL ASSET IS TO BE CONSIDERED. IN THIS CASE THE ENTIRE CONSIDERATION IS THE FULL VALUE OF CONSIDERATION. APART FROM CONS IDERATION IN CASH THE ASSESSEE IS ALSO ENTITLED TO RECEIVE FLAT AS PER TH E PRESCRIBED/SPECIFIED DESCRIPTION & SIZE AS PART OF THE ENTIRE CONSIDERA TION WHICH IS THE FULL VALUE OF THE CONSIDERATION. THEREFORE, THE MARKET V ALUE OF THE FLATS HAVE TO BE INCLUDED BEING PART OF THE ENTIRE CONSI DERATION OTHERWISE THE FULL VALUE OF CONSIDERATION WOULD BE INCORRECT AND INCOMPLETE. THE COMPLETION OF THE CONSTRUCTION IS NOT RELEVANT IN C OMPUTING THE CAPITAL GAINS. THE CAPITAL GAIN IN THESE CASES CAN BE LEGAL LY CALCULATED IN VIEW OF THE PROVISIONS OF SEC. 45 R.W.S. 48 OF THE ACT. (V) THE ASSESSEE IN THE NEXT PARA HAS CONTENDED T HAT IN THE CASE OF JASBIR SINGH SARKARIA, 294 ITR 196, THE HON 'BLE AUTHORITY OF ADVANCE RULING IN ITS JUDGMENT HAS EXPRESSED A DEEP CONCERN OVER THE WORKING OF CAPITAL GAINS IN SUCH CIRCUMSTANCES. THE CONTENTION OF THE ASSESSEE HAS DULY BEEN CONSIDERED. HOWEVER, IT IS OBSERVED THAT THE HON'BLE AUTHORITY OF ADVANCE RULING HAS AFTER D ETAILED DISCUSSING AND BY RELYING UPON THE JUDGMENT OF THE HON'BLE HIG H COURT IN THE CASE OF CHATURBHUJ DWARKADAS KAPADI VS. CIT 260 I TR 491 (BOMBAY) HAS HELD THAT ONCE THE TRANSACTION OF THE NATURE REFERRED TO IN SECTION 2(47)(V) OF THE ACT HAS TAKEN PLACE ON A PARTICULAR DATE, THE ACTUAL DATE OF TAKING POSSESSION NEED NOT TO BE PRO BED INTO. HENCE, THE RATIO OF JUDGMENTS OF THE HON'BLE AUTHORITY OF ADVA NCE RULING AND THE HON'BLE HIGH COURT AS REFERRED TO ABOVE IS APPL ICABLE IN THE CASE OF THE ASSESSEE. THE CASE OF THE ASSESSEE IS EVEN M ORE CLEAR AS PHYSICAL POSSESSION OF THE LAND HAS BEEN GIVEN TO THE TRANSF EREE ON 25.02.2007 AND PART PAYMENT HAS ALSO BEEN RECEIVED DURING THE YEAR ITSELF. FURTHER, ON THE HYPOTHETICAL QUESTION OF THE PURPOS ED VENTURE COLLAPSING FOR REASONS SUCH A REFUSAL OF PERMISSION S, THE DEVELOPER FACING FINANCIAL CRUNCH ETC., HON'BLE AUTHORITY OF ADVANCE RULING ITSELF OBSERVED AS UNDER:- 23 ON DEEP CONSIDERATION, HOWEVER, WE FIND THAT THE CO NSTRUCTION OF THE RELEVANT PROVISION SHOULD NOT BE CONTROLLED BY GIVING UNDUE IMPORTANCE TO SUCH HYPOTHETICAL SITUATION. MOREOVER , THE OTHER SIDE OF THE PICTURE IS DEPICTED IN PARA 13.3 SHOULD ALSO BE KEPT IN VIEW IN PARA 13.3 OF THE ORDER, THE HON'BLE AUTHORITY OF ADVANCE RULING HAS OBSERVED THAT POSSESSION GIVEN TO THE DE VELOPER NEED NOT RIPEN ITSELF INTO EXCLUSIVE POSSESSION ON PAYMENT O F AL INSTALLMENTS IN ENTIRETY FOR THE PURPOSE OF DETERMINING THE DATE OF TRANSFER. FURTHER, IT IS OBSERVED THAT THE PRESUMPTION/ANTICIPATION OF CE RTAIN EVEN IN FUTURE CANNOT BE A FACTOR TO OVERRIDE A LEGAL ACT AND LEGA L LIABILITIES TO PAY TAX. A TERMINATION CLAUSE IS A NECESSARY PART OF SU CH TYPE OF JOINT DEVELOPMENT AGREEMENT. AT THE SAME TIME, SUCH AGREE MENTS INCLUDING THIS AGREEMENT HAS THE PROVISIONS OF DISCLAIMER INDEMNITY AND ARBITRATION. THE DISPUTES ARISING, IF ANY, SHALL BE RESOLVED AS PER THE PROVISIONS AND AWARDS SHALL BE GRANTED IN APPROPRIA TE CASES BY THE ARBITRATOR. THESE PROVISIONS ARE THERE TO SAFEGUARD THE INTEREST OF ALL THE PARTIES TO JOINT DEVELOPMENT AGREEMENT AND PART IES WOULD BE INDEMNIFIED BY EACH OTHER AND SHALL ALSO RECEIVE AW ARD IF THE TERMS/CONDITIONS ARE NOT FULFILLED. (VI) THE NEXT CONTENTION OF THE ASSESSEE IS THAT T HE AGREEMENT IN QUESTION IS A DEVELOPMENT AGREEMENT, WHICH IS SP READ OVER A PERIOD OF TIME. ACCORDINGLY, THE PROVISIONS OF SECTION 2(4 7)(V) ARE NOT APPLICABLE IN THE PRESENT CASE. HOWEVER, THE DEVELO PMENT AGREEMENT INVOLVES THE ALLOWING OF THE POSSESSION OF THE SHAR E OF LAND OF THE ASSESSEE IN THE IMMOVABLE PROPERTY OF THE SOCIETY. THE ASSESSEE HAS RECEIVED A PART OF THE ENTIRE CONSIDERATION DURING THE YEAR UNDER CONSIDERATION. HENCE, THE CONTRACT IS VERY MUCH OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882. THE SURRENDER OF ALLOTMENT LETTERS BY THE MEMBER S WAS A PROCESS IN ORDER TO ENABLE THE SOCIETY TO ENTER INT O TRIPARTITE AGREEMENT WITH HASH AND THDC. IT IS TO BE SEEN WHETHER THE CO NDITIONS OF SEC. 45 WERE FULFILLED BY THE SURRENDER OF THE ALLOTMENT RIGHTS IN THE LAND ALLOTTED TO THEM BY THE SOCIETY. BY SURRENDERING TH E ALLOTMENT LETTERS THE RIGHT OF THE MEMBERS IN THE IMMOVABLE PROPERTY OWNED BY THEM HAD EXTINGUISHED. THIS WAS IN LIEU OF THE ENTIRE C ONSIDERATION WHICH 24 WAS RECEIVABLE BY THE MEMBERS. THE FULL VALUE OF CO NSIDERATION AS ENVISAGED IN THE JOINT DEVELOPMENT AGREEMENT HAD AC CRUED TO THE MEMBERS. THERE IS TRANSFER OF CAPITAL ASSET. THE TA XABILITY OF CAPITAL GAINS DOES NOT LAY A CONDITION THAT THE FULL VALUE OF THE CONSIDERATION SHOULD NECESSARILY BE RECEIVED FROM THE PERSON TO W HOM THE CAPITAL ASSET HAS BEEN TRANSFERRED. THE TRANSFEROR MAY GET THE CONSIDERATION IN THE MANNER MUTUALLY AGREED BETWEEN THE TRANSFERORS AND THE TRANSFEREE. THE CONDITIONS TO ATTRACT CAPITAL GAINS TAX U/S 45 OF THE ACT ARE THAT THERE SHOULD BE TRANSFER OF THE CAPITAL AS SET IN THE PREVIOUS YEAR AND THE CONSIDERATION SHOULD ACCRUE. THE CONDI TIONS ARE FULLY SATISFIED IN THESE CASES. (VII) THE LAST CONTENTION OF THE ASSESSEE NARRATIN G SIX CONDITIONS IN ORDER TO CONSIDER A TRANSACTION AS T RANSFER WITHIN THE AMBIT OF S. 2(47)(V) OF THE ACT, HAS ALSO BEEN CONS IDERED. IN THIS REGARD, AS OBSERVED ABOVE, ALL THE CONDITIONS SPECI FIED UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 ARE DULY FULFILLED IN THE TRIPARTITE AGREEMENT. THE HON'BLE AUTHORITY OF ADVA NCE RULING HAS, IN THE CASE REFERRED TO ABOVE, OBSERVED AS UNDER:- THE PURPOSE OF INTRODUCING CLAUSE(V) IN CONJUNCTIO N WITH CLAUSE (VI) IN SECTION 2(47) OF THE INCOME-TAX ACT, 1961, DEFINING TRANSFER WAS TO WIDEN THE NET OF TAXATION OF CAPI TAL GAIN SO AS TO INCLUDE TRANSACTIONS THAT CLOSELY RESEMBLED TRANSFE RS BUT WERE NOT TREATED AS SUCH UNDER THE GENERAL LAW. AVOIDANCE OR POSTPONEMENT OF TAX ON CAPITAL GAINS BY ADOPTING DEVISES SUCH AS TH E ENJOYMENT OF PROPERTY IN PURSUANCE OF REVOCABLE POWER OF ATTORNE Y OR PART PERFORMANCE OF A CONTRACT OF SALE WAS SOUGHT TO BE ARRESTED BY INTRODUCING THE TWO CLAUSES, CLAUSES (V) AND (VI), IN SECTION 2(47) THE FACTS OF THE CASE AND THE TERMS OF THE JOINT DE VELOPMENT REVEALS THAT JOINT DEVELOPMENT AGREEMENT ENABLES TH E PASSING OF DOMAIN AND CONTROL OF THE PROPERTY BY GRANT OF IRRE VOCABLE AUTHORITY AND/OR LICENSE. THUS THE DATE OF AGREEMENT OF DEVEL OPMENT WILL CONSTITUTE THE DATE OF THE TRANSFER OF THE CAPITAL ASSET EVEN U/S 2(47)(V) OF THE ACT. RELIANCE IS PLACED ON THE JUDGMENT OF T HE HON'BLE HIGH COURT IN THE CASE OF CHATURBHUJ DWARIKADAS KAPADIA VS. CIT 260 ITR 491(BOM). 25 IN VIEW OF THE ABOVE MENTIONED FACTUAL AND LEGAL POSITION, IT IS HELD THAT IT IS A FIT CASE FOR INVO KING THE PROVISION OF SECTION 263 OF THE I.T. ACT, 1961, AS THE ASSESSMEN T FRAMED BY THE A.O. U/S 143(3) ON 29.12.2009, IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. ACCORDINGLY, THE ASSE SSMENT FRAMED BY THE DY. COMMISSIONER OF INCOME TAX, CIRCLE II, BA THINDA U/S 143(3) OF THE I.T. ACT, 1961 ON 29.12.2009, IS CANCELLED U /S 263 OF THE ACT AND THE A.O. IS DIRECTED TO FRAME A FRESH ASSESSMENT, I N THE LIGHT OF THE OBSERVATIONS MADE BY THE UNDERSIGNED IN THE FOREGOI NG PARAGRAPHS. 18) KEEPING IN VIEW THE FACT AND CIRCUMSTANCES O F THE PRESENT CASE AND THE ORDER DATED 29.07.2013 PASSED BY THE I .T.A.T., CHANDIGARH BENCH (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE ORDER DATED 29.12.2009 PASSED BY THE ASSESSING OFFI CER UNDER SECTION 143(3) OF THE ACT IS ERRONEOUS AS WELL AS PREJUDICI AL TO THE INTEREST OF REVENUE. THE ASSESSING OFFICER HAS NOT COMPUTED THE CAPITAL GAIN BY TAKING INTO ACCOUNT THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF TRANSFER. WE ARE OF THE CONSIDERED V IEW THAT LEARNED COMMISSIONER OF INCOME TAX, BATHINDA HAS PASSED A W ELL REASONED ORDER AFTER ADOPTING PRESCRIBED PROCEDURE UNDER THE LAW AND AFTER CONSIDERING THE WRITTEN ARGUMENT OF LEARNED COUNSEL FOR THE ASSESSEE AS WELL AS THE CASE LAWS REFERRED BY LEARNED COUNSE L FOR THE ASSESSEE. THE CASE LAWS RELIED UPON BY LEARNED COUNSEL FOR TH E ASSESSEE ARE NOT HELPFUL TO THE ASSESSEE AS THE FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE ARE TOTALLY DIFFERENT TO THE FACTS AND CIRCUMS TANCES OF THE CASE 26 LAWS RELIED UPON BY THE ASSESSEES COUNSEL. IN THE PRESENT CASE, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER BY NOT COMPUTING CAPITAL GAINS AND NOT TAKING INTO ACCOUNT THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF TR ANSFER, IS PREJUDICIAL TO THE INTEREST OF REVENUE AND THE ORDER OF THE ASS ESSING OFFICER IS ERRONEOUS, IS ALSO CONTRARY TO THE PROVISION OF LAW AS MENTIONED BY LEARNED COMMISSIONER OF INCOME TAX, BATHINDA IN THE IMPUGNED ORDER. 18.1 SECONDLY, IT IS PERTINENT TO MENTION THAT T HIS BENCH HAS ALSO ADJUDICATED THE EXACTLY SIMILAR ISSUE AND DECI DED THE SAME IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE IN T HE CASE OF SMT. MOHINDER KAUR JOSH VS. ASSISTANT COMMISSIONER OF IN COME TAX, HOSHIARPUR PASSED IN I.T.A. NO. 295(ASR)/2011 FOR A .Y. 2007-08, DATED 13.08.2013 THEREFORE, TO MAINTAIN THE RULE OF CONSISTENCY WE HAVE TO FOLLOW THE ORDER DATED 13.08.2013 PASSED IN SMT. MOHINDER KAUR JOSH (SUPRA), WHEREIN WE HAVE FOLLOWED THE ORD ER OF I.T.A.T., CHANDIGARH BENCH (SUPRA) AND DISMISSED THE APPEAL F ILED BY THE ASSESSEE. 18.2 THIRDLY, THIS BENCH HAS ALSO DISMISSED THE APPEALS OF SIMILARLY SITUATED ASSESSEES WHO ARE ALSO MEMBER OF THE PUNJABI CO- 27 OP. HOUSING BUILDING SOCIETY LTD., MOHALI, AND REC EIVED ALMOST SIMILAR AMOUNT ON ACCOUNT OF TRANSFER OF THEIR PROP ERTY AND TREATED THE ENTIRE FULL VALUATION OF THE PROPERTY IN DISPUTE AN D ADOPTED THE SALE CONSIDERATION FOR THE PURPOSE OF CALCULATING CAPITA L GAINS UNDER SECTION 48 READ WITH SECTION 45 OF THE ACT INSTEAD OF THE PROPORTIONATE SALE CONSIDERATION AS ADOPTED BY THE ASSESSING OFFI CER, IN VARIOUS CASES WHICH INCLUDE I.T.A. NO. 180(ASR)/2013 IN THE CASE OF SATNAM SINGH KAINTH VS. INCOME TAX OFFICER, NAWANSHAHAR A LONG WITH MANY OTHER APPEALS, DATED 19.08.2013; AND I.T.A. NO. 18 8(ASR)/2013 IN THE CASE OF SH. MANORANJAN KALIA VS. DY. COMMISSIONER O F INCOME TAX, CIRCLE-III, JALANDHAR, ALONG WITH MANY OTHER APPEAL S, DATED 28.08.2013. IN THE AFORESAID CASES, THIS BENCH HAS DECIDED THE ISSUE AGAINST THE ASSESSEES AND IN FAVOUR OF THE REVENUE BY FOLLOWING THE ORDER DATED 29.07.2013 PASSED BY I.T.A.T., CHANDIGA RH BENCH B, CHANDIGARH, IN THE CASE OF CHARANJIT SINGH ATWAL VS . ITO, WARD VI(1), LUDHIANA, PASSED IN I.T.A. NO. 448/CHD/2011. 19) KEEPING IN VIEW THE AFORESAID DISCUSSING, WE ARE OF THE VIEW THAT THE LEARNED COMMISSIONER OF INCOME TAX, B ATHINDA, HAS PASSED A WELL REASONED ORDER, THEREFORE NO INTERFER ENCE IS CALLED FOR. ACCORDINGLY, WE DISMISS THE APPEAL FILED BY THE ASS ESSEE AND UPHOLD 28 THE IMPUGNED ORDER DATED 06.12.2010 PASSED UNDER SE CTION 263 OF THE ACT BY THE LEARNED COMMISSIONER OF INCOME TAX, BATH INDA. 20) IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH AUGUST, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. SUKHBIR SINGH BADAL, VILL. BADAL, DISTT. MUKTSAR, (PUNJAB). 2. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-II, BATH INDA 3. THE CIT, BATHINDA 4. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.