M/s HIMUDA, Shimla V. ACIT, Shimla

ITA 482/CHANDI/2012

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9207 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANITA SINHA
• Keywords: Difference of opinion; Capital receipt; Change of opinion
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH BEFORE: SH. SANJAY GARG, JM & DR. B.R.R. KUMAR, AM ITA NOS. 971 & 482/CHD/2012 ASSESSMENT YEARS: 2006-07 & 2008-09 HIMUDA NIGAM VIHAR SHIMLA VS. THE ACIT CIRCLE, SHIMLA PAN NO: AAALH0034K APPELLANT RESPONDENT ASSESSEE BY : SHRI. SUDHIR SEHGAL REVENUE BY : SMT. ANITA SINHA DATE OF HEARING : 10/12/2018 DATE OF PRONOUNCEMENT : 18/12/2018 ORDER PER BENCH: BOTH THE ABOVE APPEALS HAVE BEEN FILED BY THE ASSES SEE AGAINST THE ORDER OF THE LD. CIT(A), SHIMLA. 2. APPEAL WISE GROUNDS REPRODUCED HEREUNDER: GROUNDS OF ITA NO. 971/CHD/2012 FOR A.Y. 2006-07 GROUND NO 1) THAT THE PROVISIONS OF SECTION 263 COULD NOT HAVE B EEN INVOKED AS THE ORIGINAL ORDER WAS NOT PREJUDICIAL TO THE INTEREST OF THE RE VENUE, AND WAS FRAMED AFTER DUE APPLICATION OF MIND. GROUND NO 2) THAT NO FRESH FACTS HAVE COME TO THE NOTICE OF THE ASSESSING OFFICER TO RECOMMEND THE CASE TO BE ADJUDICATED U/S 263. GROUND NO 3) THAT MERE CHANGE OF OPINION ON THE BASIS OF AN AUDI T OBJECTION CANNOT BE MADE THE BASIS FOR INVOKING PROVISIONS OF SECTION 263. GROUND NO 4) THAT THE LD CIT HAS ERRED IN FACT AND LAW BY IGNORI NG THE STATUTORY POWERS OF APPROVAL AND REGULATING OF BUILDINGS AND DEVELOPMEN T ACTIVITIES THROUGH LEGISLATIVE INTENT BY THE ASSESSEE. GROUND NO 5) THAT LD CIT HAS MISCONSTRUED THE PROVISIONS OF SECT ION 10(20A) AND RATIO OF THE CASE OF AGRICULTURAL PRODUCE MARKET COMMITTEE NAREL A VS CIT 305 ITR 1 IS NOT APPLICABLE IN THIS CASE. 2 GROUND NO 6) THAT THE LD CIT HAS MISCONSTRUED THE PROVISIONS OF SECTION 3(31) OF THE GENERAL CLAUSES ACT 1981 AS LAID DOWN IN THE JUDGMENT OF UN ION OF INDIA VS RC JAIN 1981 (2) SCC 308. THE ASSESSEE HAS POWER TO RAISE FUNDS AND IS STATUTORY PROVIDED TO LEVY FEES AND CHARGES AND ARE ALSO PROVIDING WATER SERVICES AND PUBLIC UTILITIES. GROUND NO 7) THAT THE CIT HAS ERRED IN FACT AND LAW BY IGNORING THE FACT THAT THE ASSESSEE WAS BEING ASSESSED AS A LOCAL AUTHORITY BY THE DEPARTME NT SINCE A.Y. 2003-04. GROUND NO 8) THAT ADEQUATE OPPORTUNITY WAS NOT AFFORDED TO THE A PPELLANT TO REPRESENT HIS CASE BEFORE THE LD CIT(A) GROUNDS OF ITA NO. 482/CHD/2012 FOR. A.Y. 2008-09 GROUND NO 1) TRANSFER CHARGES OF RS 12731896/- LACS A) THE LD AO HAS NOT APPRECIATED THE FACTS AND HAS TREATED THE SAME A REVENUE RECEIPTS, WHEREAS THESE ARE AKIN TO COMPENSATION RE CEIVED TO COVER DEVELOPMENT COSTS ETC AFTER COMPLETION OF THE PROJE CT. THE QUANTUM IS DEPENDANT ON CONTINGENT HAPPENINGS OF AN EVENT ON W HICH THE ASSESEE DOES NOT HAVE ANY CONTROL. THESE ARE UNFORESEEN CAPITAL RECEIPTS WHICH ARE NON RECURRING IN NATURE AND THE COLONY OCCUPIERS HAVE A DIRECT INTEREST IN THE SAME AND THE RECEIPTS ARE TO BE USED FOR THEIR BENEFIT I TSELF. B) THE CASE OF BOMBAY BURMAH TRADING CORP. 161 ITR 386 WHICH HAS BEEN CITED HAS WRONGLY BEEN INTERPRETED AND THE RATIO OF THE OTHER CASE CITED I.E. 216 ITR 321 IS NOT SQUARELY APPLICABLE TO THE HOUSING BOARD/AUTHOR ITY. 3. THESE APPEALS HAVE BEEN FILED ON 09/08/2017 AND DISMISSED DUE TO NON REPRESENTATION ON THE DATE OF THE HEARING. THE SAM E HAVE BEEN RECALLED ON 29/10/2018 AND HENCE THE PRESENT HEARING. 4. DURING THE HEARING THE ASSESSEE HAS SOUGHT PERMI SSION TO WITHDRAW BOTH THE ABOVE APPEALS. 5. LD. DR HAS ALSO NOT OBJECTED TO THE WITHDRAWAL O F THE APPEALS. 6. HENCE THE APPEALS ARE HEREBY DISMISSED AS WITHDR AWN. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG ) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER AG DATE: 18/12/2018 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT ,2. THE RESPONDENT , 3. CIT, 4.THE CI T(A), 5.DR, ITAT, CHANDIGARH 6. GUARD FILE