M/s Agnus Holdings Pvt. Ltd., Bangalore V. DCIT, Bangalore

ITA 410/BANG/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7815 (ITAT-BANGALORE)
• Duration Of Justice: 5 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 04-08-2021
• Assessment Year: 2006-2007
• Appeal Filed On: 10-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N S SHASIDHAR C IT BENGALURU
• Keywords: Reopening of assessment; Capital asset; Cost of acquisition; Difference of opinion; Competent authority; Change of opinion; Capital Gains
• Section: 143(3); 13; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER IT A NO. 410/BANG/2016 ASSESSMENT YEAR: 2006 - 07 M/S. AGNUS HOLDINGS PVT. LTD., STAR II, OPP. IIM BANGALORE, BANNERGHATTA ROAD, BILEKAHALLI, BANGALORE 560 076. PAN: AAHCS 6660A VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(1)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S MT. SHEETAL BORKAR, ADVOCATE RESPONDENT BY : SH RI N.S . SHASIDHAR, ADDL. C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 04 .0 8 .202 1 DATE OF PRONOUNCEMENT : 01 .0 9 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(APPEALS)-1, BANGALORE DATED 28.12.2015 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE ORDER OF CIT(A) IS BAD AND UNSUSTAINABLE IN THE EYE OF LAW AND THEREFORE, THE SAME IS LIABLE TO BE SET- ASIDE. 2. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE RE -OPENING OF ASSESSMENT UNDER S. 147/148 WAS MERELY ON CHANGE OF OPINION AND THAT THE AO HAD NO NEW MATERIALS WITH HIM, THER EFORE, THE RE- ASSESSMENT ORDER WAS UNSUSTAINABLE IN LAW. ITA NO.410/BANG/2016 PAGE 2 OF 16 3. THE CIT(A) FELL IN SERIOUS ERROR IN SUSTAINING T HE ADDITION ESPECIALLY WITHOUT APPRECIATING THE FACT THAT MERE ENTERING INTO A JOINT DEVELOPMENT AGREEMENT WOULD NOT IPSO FACTO RE SULT IN ANY INCOME MUCH LESS CAPITAL GAINS NOR WOULD THAT CREAT E ANY TITLE OVER THE PROPERTY IN FAVOUR OF THE BUILDER. 4. WITHOUT PREJUDICE, THE CIT(A) GROSSLY ERRED IN N OT APPRECIATING THAT IN THE AFORE-SAID FACTS AND CIRCU MSTANCES, THERE WAS NO QUESTION OF ANY `TRANSFER' AS PER S.2(47) OF THE INCOME- TAX ACT AND THEREFORE, THE ADDITION AS MADE BY THE AO IS LIABLE TO BE DELETED AS UNSUSTAINABLE. 4.(SIC) THE CIT(A) OUGHT TO HAVE APPRECIATED THAT T HE DECISION OF T.K. DAYALU WAS NOT AT ALL APPLICABLE ON ACCOUNT OF DISTINGUISHING FACTS, ESPECIALLY THAT IT WAS THE CA SE OF CONSTRUCTION OF COMMERCIAL PROJECT AS OPPOSED TO RESIDENTIAL PRO JECT, AS IN THE CASE ON HAND. 5. THE CIT(A)FURTHER ERRED IN CONFIRMING CHARGING O F INTEREST UNDER S. 234B, S. 234C 85S. 234D OF THE ACT. 6. FOR THESE AND SUCH OTHER GROUNDS THAT ARE URGED DURING THE HEARING, IT IS PRAYED THAT THE IMPUGNED ORDER OF TH E CIT(A) BE SET-ASIDE GRANTING RELIEF TO THE APPELLANT, IN THE INTEREST OF JUSTICE. 3. THE ASSESSEE IS A PRIVATE LIMITED COMPANY, ENGA GED IN THE BUSINESS OF HOLDING OF INVESTMENTS, PROMOTING AND I NVESTING IN START-UP COMPANIES, INVESTING IN REAL ESTATE PROPERTIES AND SO ON. THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07 WAS COMPLETED U/S. 143(3) OF THE INCOME- TAX ACT, 1961 [THE ACT] ON 15-2-2008. THIS ASSESSME NT WAS SOUGHT TO BE REOPENED UNDER THE FIRST PROVISO TO SECTION 147 OF THE ACT AND A NOTICE U/S. 148 WAS ISSUED ON 20-3-2013. THE ASSESSEE DENIED TH AT ANY INCOME PERTAINING TO THE ABOVE ASSESSMENT HAS ESCAPED ASSE SSMENT AND REQUESTED THAT THE RETURN OF INCOME FILED ORIGINALL Y MAY BE CONSIDERED AS THE RETURN FILED PURSUANT TO THE NOTICE ISSUED UNDE R THIS SECTION. AFTER REJECTING THE OBJECTIONS, THE AO PASSED AN ORDER UN DER SEC 147 READ WITH SEC 143 (3) DATED 31-01-2014. ITA NO.410/BANG/2016 PAGE 3 OF 16 4. ACCORDING TO THE AO, THE ASSESSEE HAS ENTERED IN TO 'JOINT DEVELOPMENT AGREEMENT' WITH M/S PLAMA DEVELOPERS LI MITED, MANGALORE IN RESPECT OF A LAND OWNED BY THE ASSESSEE (ALONG WITH 3 OTHER PARTIES) IN MANGALORE, WHICH WAS NOT DISCLOSED THAT LED TO THE INCOME CHARGEABLE TO TAX ESCAPING ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECE SSARY FOR ITS ASSESSMENT. 5. COMING TO THE JOINT DEVELOPMENT AGREEMENT [JDA] ENTERED BY THE PARTIES WITH M/S PLAMA DEVELOPERS PRIVATE LTD. [DEV ELOPER] , THE AO OPINED THAT THE ASSESSEE HAS ALLOWED THE TRANSFER OF HIS J OINT INTEREST TO THE DEVELOPER BY ENTERING INTO THE AGREEMENT DATED 15-3 -2006. SINCE FOR SURRENDERING THE UNDIVIDED INTEREST IN THE LAND, TH E ASSESSEE HAS TO GET CONSTRUCTED SPACE IN DIFFERENT PHASES OF CONSTRUCTI ON EXTENDING TO MORE THAN 3 YEARS FROM THE DATE OF GRANT OF LICENCE BY T HE MANGALORE CITY CORPORATION. THE DIFFERENT PHASES OF CONSTRUCTION WERE 30MONTHS FOR COMPLETING THE PHASE II ALONG WITH A GRACE PERIOD O F 6 MONTHS AND ONE YEAR FOR COMPLETION OF PHASE III FROM THE DATE OF H ANDING OVER THE POSSESSION OF THE PROPERTY. ACCORDING TO THE AO, TH E VALUE OF THE CONSTRUCTED AREA HAS TO BE RECKONED AS THE CONSIDER ATION RECEIVED ON THE DATE OF SIGNING THE AGREEMENT ITSELF AND AS A CONSE QUENCE THEREOF, THE ASSESSEE IS LIABLE TO CAPITAL GAINS TAX IN THE ASSE SSMENT YEAR IN WHICH THE JDA HAS BEEN SIGNED. 6. THE LD. AR SUBMITTED THAT THE AO, WHILE MAKING T HE REASSESSMENT, HELD AS UNDER:- 1. THE ASSESSEE HAS DERIVED A SHORT TERM CAPITAL G AIN BY ENTERING INTO A JDA ON 15 3 2006 ITSELF. 2. SINCE THE COST OF CONSTRUCTION AS PER M/S PLAMA DEVELOPERS PVT. LTD. IS RS 1600/PER SQUARE FEET (THE COST FOR COMPLETION OF THE PROJECT WHICH LASTED ABOUT 4 YEARS TIME FROM THE DATE ITA NO.410/BANG/2016 PAGE 4 OF 16 OF SIGNING THE JDA), THE SAME SHOULD BE ADOPTED AS THE VALUE FOR THE LAND GIVEN UP BY THE ASSESSEE. 3. THE VALUE AS ADOPTED BY THE ASSESSEE IN THE JDA FOR THE PURPOSE OF CAPITALISING THE VALUE IN ITS BOOKS REPR ESENTING ITS SHARE OF THE LAND VALUE AT RS 99.32 LACS SHOULD BE TAKEN AS COST TO COMPUTE THE CAPITAL GAINS (THE AO HAS RESTR ICTED THE COST TO RS 83.66 LACS REPRESENTING 84.235 % OF THE LAND VALUE). 7. THE LD. AR SUBMITTED THAT THUS BY EXTRAPOLATING THE DATA OBTAINED FROM THE DEVELOPER WHICH IS SUPPOSED TO REPRESENT T HE COST OF CONSTRUCTION OF THE AREA TO BE HANDED OVER SUBSEQUENTLY AS THE S ALE VALUE FOR THE LAND DEVELOPED AS PART OF THE JDA. ACCORDING TO HIM, TH E AO RAISED A WHOLLY FICTITIOUS AND NOTIONAL DEMAND, SINCE HE PRESUMED T HAT THE CAPITAL GAINS AROSE IN THE YEAR OF SIGNING THE AGREEMENT ITSELF A ND THE SAME SHOULD BE ASSESSED AS SHORT TERM CAPITAL GAINS. 8. ON APPEAL, THE CIT(APPEALS) CONFIRMED THE ORDER OF AO ON BOTH THE REOPENING OF ASSESSMENT AS WELL AS ADDITION MADE HO LDING THAT THERE WAS A TRANSFER U/S. 2(47)(V) OF THE ACT SO AS TO BRING TH E CAPITAL GAIN TO TAX. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. REGARDING THE REOPENING OF ASSESSMENT, IT WAS SUBMI TTED THAT THE ORIGINAL ASSESSMENT U/S. 143(3) WAS COMPLETED ON 15.02.2008. NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 20.3.2013, WHICH IS BEYOND FO UR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR AND THERE IS NO OBLIGAT ION ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERI AL FACTS FOR THE PURPOSE OF ASSESSMENT. AS SUCH, ACCORDING TO THE ASSESSEE, TH E REOPENING IS BAD IN LAW. 10. THE LD. DR RELIED ON THE ORDER OF CIT(APPEALS). ITA NO.410/BANG/2016 PAGE 5 OF 16 11. IN THIS CASE, ORIGINALLY ASSESSMENT WAS COMPLET ED U/S. 143(3) OF THE ACT ON 15.2.2008. THERE WAS NO DISCUSSION WHATSOEV ER WITH REGARD TO THE EARNING OF CAPITAL GAIN BY ENTERING INTO JDA WITH T HE DEVELOPER ON 15.3.2006. THE ASSESSEE HAS NOT DISCLOSED ANYTHING ABOUT THIS TRANSACTION EITHER IN ITS RETURN OF INCOME OR IN ITS COMPUTATIO N. THERE IS A TOTAL FAILURE ON THE PART OF ASSESSEE TO BRING THESE FACTS TO THE NO TICE OF THE ASSESSING AUTHORITY. VIDE JDA DATED 15.3.2006, THE ASSESSEE BEING LAND OWNER WITH REGARD TO 38 CENTS SITUATED AT 13/2A, 89, KODIALBAI L VILLAGE, MANGALORE TALUK. AS PER JDA THE ASSESSEE HAS TO RECEIVE 24,0 00 SQ.FT. OF BUILT-UP AREA IN THE APARTMENT FOR HANDING OVER THE PROPERTY . SINCE THE CAPITAL GAIN ARISING OUT OF THIS TRANSACTION HAS ESCAPED FROM AS SESSMENT AND ASSESSEE HAS NOT DISCLOSED FULLY AND TRULY ALL MATERIAL FACT S FOR THE PURPOSE OF ASSESSMENT, THE CASE IS ATTRACTED TO THE PROVISIONS OF SECTION 147. AFTER NECESSARY APPROVAL, NOTICE U/S. 148 WAS ISSUED ON 2 0.3.2013. BEING SO, WE DO NOT FIND ANY INFIRMITY IN THE REOPENING OF ASSES SMENT IN THIS CASE. 12. THE NEXT GROUND IS WITH REGARD TO THE FINDING O F THE LOWER AUTHORITIES THAT THERE WAS A TRANSFER IN TERMS OF SECTION 2(47) (V) OF THE ACT WHEN THE JDA WAS ENTERED WITH THE DEVELOPER ON 15.3.2006. T HE CONTENTION OF THE LD. AR IS THAT THE JDA WAS ENTERED INTO WITH REGARD TO JOINT DEVELOPMENT OF THE PROPERTY MEASURING 38 CENTS AND THE ASSESSEE WA S TO RECEIVE 24,000 SQ.FT. OF BUILT-UP AREA IN THE APARTMENT PROJECT AN D ON THE DAY OF ENTERING INTO AGREEMENT THE ASSESSEE HAS NOT RECEIVED ANY CO NSIDERATION AND THE CONDITION LAID DOWN IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT [T.P. ACT] HAS NOT BEEN SATISFIED ON ENTERING INTO JDA. CONDI TIONAL POSSESSION WAS HANDED OVER TO THE DEVELOPER AND ASSESSEE REMAINED TO BE THE OWNER OF THE PROPERTY WHICH DOES NOT AMOUNT TO TRANSFER IN T ERMS OF SECTION 2(47)(V) OF THE ACT R.W.S. SECTION 53A OF THE T.P. ACT. AC CORDING TO HER, THE PROVISIONS OF SECTION 2(47)(V) OF THE ACT WILL NOT APPLY IN THIS SITUATION AND THIS JDA CANNOT BE CONSTRUED AS AN AGREEMENT IN THE NATURE OF CONTRACT ITA NO.410/BANG/2016 PAGE 6 OF 16 REFERRED TO IN SECTION 53A OF THE T.P. ACT. AS SUC H, NO CAPITAL GAIN COULD BE ASSESSED IN THIS ASSESSMENT YEAR UNDER CONSIDERATIO N. FURTHER, SHE SUBMITTED THAT AS PER PROVISIONS OF SECTION 53A OF THE T.P. ACT, TRANSACTION WOULD CONSTITUTE TRANSFER FOR THE PURPOSE OF COMP UTING CAPITAL GAIN ONLY IF ALL THE CONDITIONS LAID DOWN IN THE PROVISIONS ARE SATISFIED. IN THIS CASE, OTHER THAN ENTERING INTO JDA, NO OTHER CONDITION ST IPULATED U/S. 53A OF THE T.P. ACT IS COMPLIED WITH. THE PROVISIONS OF DEEME D TRANSFER U/S. 2(47)(V) OF THE ACT CANNOT BE INVOKED IN THE ASSESSEES CASE SINCE NO CONSIDERATION WAS RECEIVED AND ALSO NO CONSTRUCTION ACTIVITY ACTU ALLY TOOK PLACE DURING THE FY 2005-06 RELEVANT TO AY 2006-07. EVEN THE DE VELOPER DID NOT OBTAIN THE BUILDING PLAN SO AS TO CONSTRUCT THE BUILDING T HEREON. NO INCOME ACCRUED TO THE ASSESSEE IN THE ASSESSMENT YEAR UNDE R CONSIDERATION. THE JDA WAS ENTERED AT THE FAG END OF FINANCIAL YEAR I. E. ON 15.3.2006 AND NO ACTIVITIES RELATING TO THE DEVELOPMENT OF THE PROPE RTY HAS TAKEN PLACE AND NO RIGHT TO RECEIVE THE CONSIDERATION HAS ACCRUED T O THE ASSESSEE, AS SUCH ASSESSEE CANNOT BE PLACED WITH ANY TAX LIABILITY IN THIS ASSESSMENT YEAR. FURTHER IT WAS THE STAND OF THE ASSESSEE THAT JUST BY SIGNING THE JDA, CAPITAL GAIN WILL NOT BE ATTRACTED WHICH IS NOW ACC EPTED BY WAY OF NEWLY INSERTED SUB-SECTION (5A) OF SECTION 45. FOR THIS PURPOSE, SHE RELIED ON THE DECISION OF COCHIN BENCH IN THE CASE OF DCIT V SMT. HEMA MOHANLAL, 54 CCH 393. FURTHER SHE RELIED ON THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF CIT V. BALBIR SINGH MAINI, 398 ITR 531 (SC) WHEREIN IT WAS HELD THAT AFTER THE AMENDMENT TO REGISTRATION ACT, 1908 IN THE YEAR 2001, UNLESS DOCUMENTS CONTAINING THE CONTRACT TO TRANSFER ANY I MMOVABLE PROPERTY IS REGISTERED, THE TRANSACTION SHALL NOT HAVE ANY EFFE CT IN LAW. 13. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT TH E ASSESSEE ENTERED INTO JDA ALONG WITH IRREVOCABLE POWER OF ATTORNEY O N 15.3.2006 THROUGH WHICH THE ASSESSEE HANDED OVER THE POSSESSION OF TH E IMPUGNED PROPERTY FOR CONSTRUCTION. FURTHER A READING OF JDA ALONG WITH THE GPA SHOWS THAT ITA NO.410/BANG/2016 PAGE 7 OF 16 ASSESSEE AUTHORIZED THE DEVELOPER TO SELL/TRANSFER ITS CONSTRUCTED AREA TO THEIR CLIENTS. THE ASSESSEE PARTED WITH THE POSSES SION OF LAND TO THE DEVELOPER IN LIEU OF THAT ASSESSEE WOULD RECEIVE CO NSIDERATION IN THE FORM OF 24,000 SQ.FT. OF CONSTRUCTED AREA. THE ASSESSEE HAD RELINQUISHED ITS RIGHTS IN THE SCHEDULE PROPERTY WHICH THE DEVELOPER HAS GOT POSSESSION OF PROPERTY TO DEVELOP THE SAME. IN LIEU OF RELINQUIS HMENT OF RIGHTS IN THE SAID PROPERTY, IT WOULD ULTIMATELY VEST IN THE HANDS OF THE DEVELOPER AND ASSESSEE WOULD RECEIVE 24,000 SQ.FT. OF CONSTRUCTED AREA. IT AMOUNTS TO ACCRUAL OF RIGHT TO RECEIVE THE CONSIDERATION IN KI ND WHICH HAS A VALUE, IT CANNOT BE SAID THAT NO TRANSFER TOOK PLACE IN FAVOU R OF ASSESSEE. 14. THE LD. DR SUBMITTED THAT ASSESSEE HAS GIVEN A BUNDLE OF RIGHTS IN FAVOUR OF THE DEVELOPER TO DO ALL THE NECESSARY ACT S IN RELATION TO CONSTRUCTION OF THE FLATS IN THE SCHEDULE PREMISES AND ALSO GIVEN RIGHT TO MORTGAGE THE SAID PROPERTY AND TO SELL THE PROPERTY WHICH IS EVIDENT FROM CLAUSE 12 OF THE JDA. HE ALSO RELIED ON THE JUDGME NT OF THE HONBLE HIGH COURT OF KARNATAKA IN CIT V. DR. T.K. DAYALU (202 TAXMAN 531) WHEREIN IT WAS HELD THAT IF THE CONTRACT, READ AS A WHOLE, IND ICATES PASSING OF OR TRANSFERRING OF COMPLETE CONTROL OVER THE PROPERTY IN FAVOUR OF THE DEVELOPER, THEN THE DATE OF THE CONTRACT WOULD BE R ELEVANT TO DECIDE THE YEAR OF CHARGEABILITY. 15. FURTHER HE SUBMITTED THAT SUB-SECTION (5A) TO S ECTION 45 WAS INSERTED BY THE FINANCE ACT, 2017 W.E.F. 1.4.2018 A ND HENCE IT CANNOT BE APPLIED TO THE PRESENT AY 2006-07. HE ALSO SUBMITT ED THAT THE ORDER OF TRIBUNAL IN THE CASE OF DCIT V. SMT. HEMA MOHANLAL (SUPRA) CANNOT BE APPLIED TO THE FACTS OF THE CASE. IN THAT CASE, TH OUGH JDA WAS ENTERED INTO ON 21.6.2009. PERMISSION FOR CONSTRUCTION WAS OBTA INED FROM TRIVANDRUM CORPORATION TO CONSTRUCT THE BUILDING ON 8.6.2009. THE CONDITION FOR HANDING OVER CONSTRUCTION WAS 36 MONTHS. HOWEVER, I T WAS ACTUALLY HANDED OVER ON 12.4.2016 WITH A LONG DELAY OF 7 YEARS. IN SUCH PECULIAR FACTS AND ITA NO.410/BANG/2016 PAGE 8 OF 16 CIRCUMSTANCES, THE TRIBUNAL HELD THAT THERE WAS NO TRANSFER IN THE YEAR IN WHICH THE JDA WAS ENTERED INTO. ACCORDINGLY THE RA TIO OF THAT DECISION CANNOT BE APPLIED. 16. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED T HE RIVAL SUBMISSIONS. IN THIS CASE, THE ASSESSEE ENTERED IN TO JDA WITH THE DEVELOPER ALONG WITH THE OTHER PARTIES ON 15.3.2006 AND ALSO EXECUTED IRREVOCABLE POWER OF ATTORNEY ON 07.11.2005 WITH PL AMA DEVELOPERS PVT. LTD. WITH REGARD TO THE PROPERTY BEARING NO. 13/2A, 89, KODIALBAIL VILLAGE, MANGALORE TALUK. AS PER THIS AGREEMENT, ASSESSEE H AS TO RECEIVE 24,000 SQ.FT. OF CONSTRUCTED AREA IN THE APARTMENT IN THIS PROJECT. THE CONTENTION OF THE LD. AR FOR THE ASSESSEE IS THAT THERE WAS NO TR ANSFER FOR THE AY 2006- 07. THE ACTUAL TRANSFER OF PROPERTY WAS IN THE ASS ESSMENT YEAR WHEN THE ASSESSEE RECEIVED CONSTRUCTED AREA OF FLATS, WHICH WAS OFFERED FOR TAXATION IN THE AY 2013-14. AS SUCH, IT CANNOT BE BROUGHT T O TAX FOR THE AY 2006- 07. 17. IT IS APPROPRIATE TO REFER TO THE PROVISIONS OF SECTION 2(47)(V) OF THE ACT WHICH ARE AS FOLLOWS:- 'SECTION 2(47) 'TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLUDE S (I) & (IV)** ** ** (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE P OSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN P ART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN S. 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882);' A BARE READING OF THE ABOVE PROVISION WOULD REVEAL THAT IN ORDER TO DETERMINE THE CAPITAL GAIN ARISEN TO AN ASSESSEE, T HERE ARE BASICALLY THREE INGREDIENTS:- ITA NO.410/BANG/2016 PAGE 9 OF 16 (I) THERE MUST BE A CAPITAL ASSET; (II) IT MUST HAVE BEEN TRANSFERRED DURING THE ACCOU NTING PERIOD RELEVANT TO THE ASSESSMENT YEAR. (III) CAPITAL GAIN MUST HAVE ARISEN TO AN ASSESSEE OF SUCH AN ASSET. 18. WE WILL ALSO GO THROUGH THE PROVISIONS OF SECTI ON 53A OF THE T.P. ACT REPRODUCED BELOW:- SECTION 53A : PART PERFORMANCE-WHERE ANY PERSON CON TRACTS TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTI TUTE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY, AND THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSESSION, CONTINUES IN POSSESSION IN P ART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF TH E CONTRACT, AND THE TRANSFEREE HAS PERFORMED OR IS WILLING TO P ERFORM HIS PART OF THE CONTRACT THEN, NOTWITHSTANDING THAT THE CONTRACT, THOUGH REQ UIRED TO BE REGISTERED, HAS NOT BEEN REGISTERED, OR, WHERE THERE IS AN INST RUMENT OF TRANSFER, THAT THE TRANSFER HAS NOT BEEN COMPLETED IN THE MANNER P RESCRIBED THEREOF BY THE LAW FOR THE TIME BEING IN FORCE, THE TRANSFEROR OR ANY PERSON CLAIMING UNDER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF WHICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION , OTHER THAN THE RIGHT SPECIFICALLY PROVIDED BY THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHALL AFFECT THE RIGH TS OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF. 19. A PLAIN READING OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT SHOWS THAT IN ORDER THAT A CONTRACT CAN BE TERMED TO BE ' OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT' IT IS ONE OF THE NECESSARY PRECONDITIONS THAT TRANSFEREE SHOULD HAVE OR IS WIL LING TO PERFORM HIS PART OF ITA NO.410/BANG/2016 PAGE 10 OF 16 THE CONTRACT. THIS ASPECT HAS BEEN DULY TAKEN NOTE OF BY THE HON'BLE BOMBAY HIGH COURT WHEN THEIR LORDSHIPS OBSERVED AS FOLLOWS: 'THAT, IN ORDER TO ATTRACT SECTION 53A, THE FOLLOWI NG CONDITIONS NEED TO BE FULFILLED. ( A ) THERE SHOULD BE CONTRACT FOR CONSIDERATION; ( B ) IT SHOULD BE IN WRITING; ( C ) IT SHOULD BE SIGNED BY THE TRANSFEROR; ( D ) IT SHOULD PERTAIN TO THE TRANSFER OF IMMOVABLE PROP ERTY; ( E ) THE TRANSFEREE SHOULD HAVE TAKEN POSSESSION OF PROPERTY; ( F ) LASTLY, TRANSFEREE SHOULD BE READY AND WILLING TO P ERFORM THE CONTRACT'. 20. ELABORATING UPON THE SCOPE OF EXPRESSION 'HAS P ERFORMED OR IS WILLING TO PERFORM', THE OFT QUOTED COMMENTARY 'MUL LA- THE TRANSFER OF PROPERTY ACT ' (9TH EDN. : PUBLISHED BY BUTTERWORTHS INDIA), AT P. 448, OBSERVES THAT: 'THE DOCTRINE OF READINESS AND WILLINGNESS IS AN EM PHATIC WAY OF EXPRESSION TO ESTABLISH THAT THE TRANSFEREE ALWAYS ABIDES BY THE TERMS OF THE AGREEMENT AND IS WILLING TO PERFORM HIS PART OF THE CONTRACT. PART PERFORMANCE, AS A STATUTORY RIGHT, IS CONDITIONED U PON THE TRANSFEREE'S WILLINGNESS TO PERFORM HIS PART OF THE CONTRACT IN TERMS COVENANTED THEREUNDER. WILLINGNESS TO PERFORM THE ROLES ASCRIBED TO A PART Y, IN A CONTRACT IS PRIMARILY A MENTAL DISPOSITION. HOWEVER, SUCH WILLI NGNESS IN THE CONTEXT OF SECTION 53A OF THE ACT HAS TO BE ABSOLUTE AND UNCON DITIONAL. IF WILLINGNESS IS STUDDED WITH A CONDITION, IT IS IN FACT NO MORE THAN AN OFFER AND CANNOT BE TERMED AS WILLINGNESS. WHEN THE VENDEE COMPANY E XPRESSES ITS WILLINGNESS TO PAY THE AMOUNT, PROVIDED THE (VENDOR ) CLEARS HIS INCOME-TAX ARREARS, THERE IS NO COMPLETE WILLINGNESS BUT A CON DITIONAL WILLINGNESS OR PARTIAL WILLINGNESS WHICH IS NOT SUFFICIENT. IN JUDGING THE WILLINGNESS TO PERFORM, THE COURT MU ST CONSIDER THE OBLIGATIONS OF THE PARTIES AND THE SEQUENCE IN WHIC H THESE ARE TO BE PERFORMED..' ITA NO.410/BANG/2016 PAGE 11 OF 16 21. NOW THE DISPUTE IS WHETHER THE CAPITAL GAIN AC CRUED TO THE ASSESSEE ON THE DATE OF SIGNING THE JDA ON 15.3.2006 WHICH W AS AT THE FAG END OF THE FINANCIAL YEAR. ON GOING THROUGH THE ADMITTED F ACTS, IT SHOWS THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION, THE TRANSFEREE /TRANSFEROR HAS NEITHER PERFORMED NOR WAS IT WILLING TO PERFORM ITS OBLIGAT ION UNDER THE JDA UNDER CONSIDERATION. BASED ON THE JDA, CAPITAL GAIN IS S OUGHT TO BE TAXED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. BUT THIS AGRE EMENT WAS NOT ACTED UPON BY THE ASSESSEE IN THIS ASSESSMENT YEAR UNDER CONSIDERATION. THE TRANSFEROR HAS NOT RECEIVED A PENNY AS CONSIDERATIO N IN THE ASSESSMENT YEAR UNDER CONSIDERATION. EVEN THERE IS NO EVIDENC E TO SUGGEST THAT THE DEVELOPER HAS TAKEN ANY STEPS TO PREPARE AND GET AP PROVED THE BUILDING PLAN TO CONSTRUCT THE PROPOSED CONSTRUCTION IN THE SCHEDULE PROPERTY. ADMITTEDLY, THERE IS NO PROGRESS IN THE DEVELOPMENT DURING THE YEAR UNDER CONSIDERATION. NO MUNICIPAL SANCTION FOR DEVELOPME NT WAS OBTAINED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. SANCTION OF B UILDING PLAN IS UTMOST IMPORTANT FOR IMPLEMENTATION OF JDA ENTERED INTO BE TWEEN THE PARTIES. WITHOUT SANCTION OF BUILDING PLAN, VERY GENESIS OF THE AGREEMENT FAILS. TO ENABLE EXECUTION OF THE JDA, FIRSTLY PLAIN IS TO BE APPROVED BY THE COMPETENT AUTHORITY. IN FACT, THE BUILDING PLAN WA S NOT GOT APPROVED BY THE DEVELOPER IN THE ASSESSMENT YEAR UNDER CONSIDERATIO N. ONLY PERMISSION IS GRANTED TO THE DEVELOPER TO UNDERTAKE CONSTRUCTION OF THE PROJECT. UNTIL PERMISSION IS GRANTED, A DEVELOPER CANNOT UNDERTAKE CONSTRUCTION. AS A RESULT OF THIS LAPSE BY THE TRANSFEREE, THE CONSTRU CTION HAS NOT TAKEN PLACE IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THERE IS NO PROGRESS IN THE DEVELOPMENT ACTIVITIES IN THE ASSESSMENT YEAR UNDER CONSIDERATION. NOTHING IS BROUGHT ON RECORD BY AUTHORITIES TO SHOW THAT THERE WAS DEVELOPMENT ACTIVITY IN THE PROJECT DURING THE ASSE SSMENT YEAR UNDER CONSIDERATION AND COST OF CONSTRUCTION WAS INCURRED BY THE BUILDER/DEVELOPER. HENCE IT IS TO BE INFERRED THAT NO AMOUNT OF INVESTMENT WAS MADE BY THE DEVELOPER IN THE CONSTRUCTION ACTIV ITY AND IT WOULD AMOUNT ITA NO.410/BANG/2016 PAGE 12 OF 16 TO NON-INCURRING OF REQUIRED COST OF ACQUISITION BY THE DEVELOPER. IN THE ASSESSMENT YEAR UNDER CONSIDERATION, IT IS NOT POSS IBLE TO SAY WHETHER THE DEVELOPER PREPARED TO CARRY OUT THOSE PARTS OF THE AGREEMENT TO THEIR LOGICAL END. THE DEVELOPER HAS NOT SHOWN ANY READI NESS OR HAVING MADE PREPARATION FOR COMPLIANCE OF THE AGREEMENT DATED 1 5.3.2006. THE DEVELOPER HAS NOT TAKEN ANY STEPS TO MAKE IT ELIGIB LE TO UNDERTAKE THE PERFORMANCE OF THE AGREEMENT WHICH ARE THE PRIMARY INGREDIENTS THAT MAKE A PERSON ELIGIBLE AND ENTITLED TO MAKE THE CONSTRUC TION. THE ACT AND CONDUCT OF THE DEVELOPER IN THIS ASSESSMENT YEAR SH OWS THAT IT HAD VIOLATED ESSENTIAL TERMS OF THE AGREEMENT WHICH TEND TO SUBV ERT THE RELATIONSHIP ESTABLISHED BY THE DEVELOPMENT AGREEMENT. BEING SO, IN THE YEAR UNDER CONSIDERATION, IT IS NOT POSSIBLE TO SAY THAT TRANS FER TOOK PLACE IN TERMS OF SECTION 2(47)(V) OF THE ACT. IN OUR OPINION, HAN DING OVER OF POSSESSION OF PROPERTY IS ONLY ONE OF CONDITIONS U/S. 53A OF THE T.P. ACT, BUT IT IS NOT THE SOLE AND ISOLATED CONDITION. IT IS NECESSARY TO GO INTO WHETHER OR NOT THE TRANSFEREE WAS 'WILLING TO PERFORM' ITS OBLIGATION UNDER THESE CONSENT TERMS. WHEN TRANSFEREE, BY ITS CONDUCT AND BY ITS DEEDS, D EMONSTRATES THAT IT IS UNWILLING TO PERFORM ITS OBLIGATIONS UNDER THE AGRE EMENT IN THIS ASSESSMENT YEAR, THE DATE OF AGREEMENT CEASES TO BE RELEVANT. IN SUCH A SITUATION, IT IS ONLY THE ACTUAL PERFORMANCE OF TRANSFEREE'S OBLIGAT IONS WHICH CAN GIVE RISE TO THE SITUATION ENVISAGED IN SECTION 53A OF THE TR ANSFER OF PROPERTY ACT. ON THESE FACTS, IT IS NOT POSSIBLE TO HOLD THAT THE TRANSFEREE WAS WILLING TO PERFORM ITS OBLIGATIONS IN THE FINANCIAL YEAR IN WH ICH THE CAPITAL GAINS ARE SOUGHT TO BE TAXED BY THE REVENUE. WE HOLD THAT THI S CONDITION LAID DOWN UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT W AS NOT SATISFIED IN THIS ASSESSMENT YEAR UNDER CONSIDERATION. ONCE WE COME T O THE CONCLUSION THAT THE TRANSFEREE WAS NOT 'WILLING TO PERFORM', A S STIPULATED BY AND WITHIN MEANINGS ASSIGNED TO THIS EXPRESSION UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT, ITS CONTRACTUAL OBLIGATIONS IN THIS P REVIOUS YEAR RELEVANT TO THE PRESENT ASSESSMENT YEAR, IT IS ONLY A COROLLARY TO THIS FINDING THAT THE ITA NO.410/BANG/2016 PAGE 13 OF 16 DEVELOPMENT AGREEMENT DATED 11-5-2005 BASED ON WHIC H THE IMPUGNED TAXABILITY OF CAPITAL GAIN IS IMPOSED BY THE ASSESS ING OFFICER AND UPHELD BY THE CIT(A), CANNOT BE SAID TO BE A 'CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT' AND, A CCORDINGLY, PROVISIONS OF SECTION 2(47)( V ) CANNOT BE INVOKED ON THE FACTS OF THIS CASE. 22. WE HAVE CAREFULLY GONE THROUGH THE CONDITIONS L AID DOWN IN THE JDA DATED 15.3.2006 TO THE DEVELOPER. AS SEEN FROM CLA USE 12 OF THE JDA, IT SUGGESTS THAT THE ASSESSEE AUTHORIZED THE DEVELOPER TO ENTER INTO AGREEMENTS FOR SALE OF HIS PROPORTIONATE UNDIVIDED RIGHT ALONG WITH THE PARTLY OR FULLY CONSTRUCTED RESIDENTIAL APARTMENTS ALLOTTED TO THE DEVELOPER AND THE ASSESSEE ALSO AUTHORIZED TO EXECUTE THE SAL E DEED CONVEYING THE UNDIVIDED INTEREST IN THE SCHEDULE PROPERTY ALONG W ITH PARTLY OR FULLY CONSTRUCTED APARTMENT THEREON AND TO PRESENT THE SA ME FOR REGISTRATION AND TO RECEIVE CONSIDERATION. ACCORDING TO THE LD. DR, IT SHOWS THAT THAT THE ASSESSEE TRANSFERRED THE ABSOLUTE RIGHT OVER THE NE W PROPERTY TO THE DEVELOPER TO THE EXTENT OF UNDIVIDED SHARE ON ENTER ING INTO THE JDA ON 15.3.2006. AT THIS POINT, IT IS APPROPRIATE TO MEN TION THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF DR. T.K. DAYALU (SUPRA) AS FOLLOWS:- THE HON'BLE SUPREME COURT (SIC) HAS REFERRED TO TH E CONTENTION OF THE ASSESSEE AND THE EARLIER JUDGMENTS OF THE SU PREME COURT CITED BY HIM AND HELD THAT THOSE JUDGMENTS WERE PRI OR TO INTRODUCTION OF THE CONCEPT OF DEEMED TRANSFER UNDE R SECTION 2(47)(V) OF THE ACT AND IF THE CONTRACT, READ AS A WHOLE, INDICATES PASSING OF OR TRANSFERRING OF COMPLETE CONTROL OVER THE PROPERTY IN FAVOUR OF THE DEVELOPER, THEN THE DATE OF THE CONTR ACT WOULD BE RELEVANT TO DECIDE THE YEAR OF CHARGEABILITY. THERE FORE, IN THESE APPEALS, WE HOLD THAT CAPITAL GAIN IS TO BE TAXED I N THE YEAR 1997- 98 AND NOT IN THE YEAR 2003-04 AS CONTENDED BY THE ASSESSEE. ACCORDINGLY, WE ANSWER THE SUBSTANTIAL QUESTIONS OF LAW FRAMED IN ITA NO.3209/2005 IN FAVOUR OF THE REVENUE AND SU BSTANTIAL ITA NO.410/BANG/2016 PAGE 14 OF 16 QUESTIONS OF LAW FRAMED IN ITA NO.3105/2005 AGAINST THE ASSESSEE 23. THE HON'BLE BOMBAY HIGH COURT IN CHATURBHUJ DWARKADAS KAPADIA V. CIT [2003] 260 ITR 491/ 129 TAXMAN 497 HELD THAT THE DA TE RELEVANT FOR ATTRACTING CAPITAL GAIN HAVING REGARD TO THE DEFINITION UNDER SECTION 2(47) OF THE ACT IS THE DATE ON WHICH POSSE SSION IS HANDED OVER BY THE DEVELOPER AND HAS OBSERVED AS FOLLOWS:- UNDER SECTION 2(47)(V), ANY TRANSACTION INVOLVING ALLOWING OF POSSESSION TO BE TAKEN OVER OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT WOULD C OME WITHIN THE AMBIT OF SECTION 2(47)(V). THAT, IN ORDE R TO ATTRACT SECTION 53A, THE FOLLOWING CONDITIONS NEED TO BE FULFILLED. THERE SHOULD BE A CONTRACT FOR CONSIDERA TION; IT SHOULD BE IN WRITING; IT SHOULD BE SIGNED BY THE TR ANSFEROR; IT SHOULD PERTAIN TO TRANSFER OF IMMOVABLE PROPERTY ; THE TRANSFEREE SHOULD HAVE TAKEN POSSESSION OF THE PROP ERTY; LASTLY, THE TRANSFEREE SHOULD BE READY AND WILLING TO PERFORM HIS PART OF THE CONTRACT. THAT EVEN ARRANGE MENTS CONFIRMING PRIVILEGES OF OWNERSHIP WITHOUT TRANSFER OF TITLE COULD FALL UNDER SECTION 2(47)(V). SECTION 2( 47)(V) WAS INTRODUCED IN THE ACT FROM THE ASSESSMENT YEAR 1988 -89 BECAUSE PRIOR THERETO, IN MOST CASES, IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT NO TRANSFER TOOK PLACE TILL EXECUTION OF THE CONVEYANCE. CONSEQUENTLY, THE ASSE SSEES USED TO ENTER INTO AGREEMENTS FOR DEVELOPING PROPER TIES WITH THE BUILDERS AND UNDER THE AGREEMENT WITH THE BUILDERS, THEY USED TO CONFER PRIVILEGES OF OWNERSH IP WITHOUT EXECUTING CONVEYANCE AND TO PLUG THAT LOOPH OLE, SECTION 2(47)(V) CAME TO BE INTRODUCED IN THE ACT.' 24. THE LD. DR ARGUED THAT THE ASSESSEE BEING OWNER OF THE PROPERTY ENTERED INTO JDA ON 15.3.2006 IN TERMS OF WHICH THE ASSESSEE HAD GIVEN THE BUNDLE OF RIGHTS AS MENTIONED ABOVE AND POSSESS ION OF THE PROPERTY TO THE DEVELOPER, AGAINST WHICH THE ASSESSEE RECOVERED 24,000 SQ.FT. CONSTRUCTED AREA OF FLATS. THE ASSESSEES ARGUMENT THAT IT HAS OFFERED THE SAME FOR TAXATION IN AY 2013-14 HOLDS NO MERIT. TH E JUDGMENT IN ITA NO.410/BANG/2016 PAGE 15 OF 16 CHATURBHUJ DWARKADAS KAPADIA V. CIT (SUPRA) UNDOUBTEDLY LAYS DOWN A PROPOSITION, WHICH MORE OFTEN THAN NOT, FAVOURS THE REVENUE, BUT, ON THE FACTS OF THIS CASE, THE SAID JUDGMENT SUPPORTS THE CASE OF ASSESSEE INASMUCH AS WILLINGNESS TO PERFORM HAS BEEN SPECI FICALLY RECOGNIZED AS ONE OF THE ESSENTIAL INGREDIENTS TO COVER A TRANSAC TION BY THE SCOPE OF SECTION 53A OF THE T.P. ACT. THE REVENUE DOES NOT GET ANY ASSISTANCE FROM THIS JUDICIAL PRECEDENT. MORE SO, THERE IS BI NDING PRECEDENT OF DECISION OF CIT V. BALBIR SINGH MAINI (SUPRA) IN WHICH IT WAS HELD AS FOLLOWS:- AN AGREEMENT OF SALE WHICH FULFILLED THE INGREDIE NTS OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 WAS NOT REQUIRED TO BE EXECUTED THROUGH A REGISTERED INSTRU MENT. THIS POSITION WAS CHANGED BY THE REGISTRATION AND OTHER RELATED LAWS (AMENDMENT) ACT, 2001. AMENDMENTS WERE MADE SIMULTANEOUSLY IN SECTION 53A OF THE 1882 ACT AND S ECTIONS 17 AND 49 OF THE REGISTRATION ACT, 1908. THE EFFECT O F THE AFORESAID AMENDMENT WAS THAT, ON AND AFTER THE COMMENCEMENT O F THE AMENDMENT ACT OF 2001, IF AN AGREEMENT IS NOT REGIS TERED, THEN IT SHALL HAVE NO EFFECT IN LAW FOR THE PURPOSES OF SEC TION 53A. IN SHORT, THERE IS NO AGREEMENT IN THE EYES OF LAW WHI CH CAN BE ENFORCED IN LAW UNDER SECTION 53A OF THE 1882 ACT. A READING OF SECTION 17(1A) AND SECTION 49 OF THE 1908 ACT SHOWS THAT IN THE EYES OF LAW, THERE IS NO CONTRACT WHICH CAN BE TAKE N COGNIZANCE OF, FOR THE PURPOSE SPECIFIED IN SECTION 53A OF THE 1882 ACT. UNDER SUB-CLAUSE (VI) OF SECTION 2(47) OF THE 1961 ACT, ANY TRANSACTION WHICH HAS THE EFFECT OF TRANSFERRIN G OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY WOULD COME WITHIN ITS PURVIEW. THE EXPRESSION 'OR IN ANY OTHER MANNER WH ATSOEVER' IN SUB-CLAUSE ( VI ) WOULD SHOW THAT IT IS NOT NECESSARY THAT THE TRANSACTION REFERS TO THE MEMBERSHIP OF A COOPERATI VE SOCIETY. THE OBJECT OF SECTION 2(47)( VI ) APPEARS TO BE TO BRING WITHIN THE TAX NET A DE FACTO TRANSFER OF ANY IMMOVABLE PROPERTY. THE EXPRESSION 'ENABLING THE ENJOYMENT OF' TAKES COLOUR FROM THE EARLIER EXPRESSION 'TRANSFERRING', SO THAT IT IS CL EAR THAT ANY TRANSACTION WHICH ENABLES THE ENJOYMENT OF IMMOVABL E PROPERTY MUST BE ENJOYMENT AS A PURPORTED OWNER THEREOF. THE IDEA IS TO ITA NO.410/BANG/2016 PAGE 16 OF 16 BRING WITHIN THE TAX NET, TRANSACTIONS, WHERE, THOU GH TITLE MAY NOT BE TRANSFERRED IN LAW, THERE IS, IN SUBSTANCE, A TR ANSFER OF TITLE IN FACT. 25. SINCE WE HAVE FOLLOWED THE BINDING PRECEDENT OF THE HONBLE SUPREME COURT JUDGMENT IN CIT V. BALBIR SINGH MAINI (SUPRA) , WE HAVE NOT CONSIDERED THE JUDGMENT CITED BY THE LD. DR. 26. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS PA RTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 1 ST DAY OF SEPTEMBER, 2021. SD/- SD/- ( GEORGE GEORGE K. ) ( CHANDRA POOJARI ) JUDIC IAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 1 ST SEPTEMBER, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.