ITO 3(1)(4), MUMBAI V. FIESTA PROPERTIES P.LTD, MUMBAI

ITA 5257/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3861 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Department
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2014
• Court: TRIBUNAL
• Department Lawyers: CHIRAG R SHAH
• Assessee Lawyers: RAJHESH OJHA
• Keywords: Capital asset; Retrospective amendment; Cost of acquisition; Fair market value; Corroborative evidences
• Section: 143(3); 133(6)

Judgement Text

1 ITA 5257/MUM/2014 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACOUNTANT MEMBER) I.T.A. NO. 5257/MUM/2014 (ASSESSMENT YEAR: 2010-11) ITO, 3(1)(4), MUMBAI VS M/S FIESTA PROPERTIES PVT LTD 61, DR S.S. RAO ROAD NEAR GANDHI HOSPITAL PAREL (EAST), MUMBAI-12 PAN : AAACF1877B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI CHIRAG R SHAH RESPONDENT BY SHRI RAJHESH OJHA DATE OF HEARING : 20-07-2016 DATE OF PRONOUNCEMENT : 11 -08-2016 O R D E R PER ASHWANI TANEJA, AM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER C ALLED CIT(A)] DT 08- 05-2014 PASSED AGAINST THE ASSESSMENT ORDER OF THE AO U/S 143(3) DT 15- 03-2013 FOR A.Y. 2010-11 ON THE FOLLOWING GROUNDS: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CJT(A) HAS ERRED IN DIRECTING THE A.O. TO DELETE THE ADDITION OF RS. 3,74,00,000/- ON ACCOUNT OF CESSATION OF LIABILITY IGNORING THE FACT THAT THE S AID LIABILITY DID NOT EXIST IN THE BOOKS OF 2 ITA 5257/MUM/2014 ACCOUNTS OF M/S, DAWAT-E-HADIYAH TRUST AS CONFIRMED DURING THE COURSE OF ENQUIRY U/S. 133(6) OF THE I.T.ACT.' 1. THE SOLITARY ISSUE RAISED BY THE REVENUE BY WAY OF THIS APPEAL IS WITH REGARD TO DELETION OF THE ADDITION WHICH WAS MADE B Y THE AO ON ACCOUNT OF CESSATION OF LIABILITY ON ACCOUNT OF ADVANCE RECEIV ED FROM M/S DAWAT-E- HADIYAH . 3. THE BRIEF BACKGROUND OF THE ISSUE AND THE FACTS OF THIS CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE C OMPANY HAD SHOWN INCOME MAINLY FROM RENT UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND ALSO INCOME FROM BUSINESS. THE ASSESSEE COMPANY WAS ENGAGED INTERALIA IN THE BUSINESS OF CONSTRUCTION OF PROPERTIES. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THERE WAS A LIABILITY OF RS.3,74,00,000/- AS SHOWN IN THE BALANCE SHEET OF T HE ASSESSEE, IN THE NAME OF M/S DAWAT-E-HADIYAH TRUST. THE SAID LIABILI TY WAS CREATED IN THE YEAR 1995, WHEN THE ASSESSEE HAD RECEIVED THE SAID AMOUNT FROM THE SAID TRUST AS AN ADVANCE FOR SALE OF ASSESSEE'S PROPERTY . THE AO CONDUCTED ENQUIRIES FROM M/S DAWAT-E-HADIYAH TRUST, WHO VIDE THEIR LETTER DATED 29.11.2012 REPLIED THAT THE LIABILITY HAD BEEN WRIT TEN OFF IN THE YEAR UNDER CONSIDERATION ON ACCOUNT OF DONATIONS RECEIVED FROM INDIVIDUAL DONORS. BUT, AO WAS OF THE VIEW THAT THERE WAS CESSATION OF LIABILITY OF THE ASSESSEE OF THE SAID AMOUNT OF RS. 3.74 CRORES, AND THEREFORE IT SHOULD BE TREATED AS ASSESSEES INCOME, AND THEREFORE HE I SSUED SHOW CAUSE NOTICE TO THE ASSESSEE AND AFTER CONSIDERING THE RE PLY OF THE ASSESSEE HELD THAT THE ASSESSEE BEING IN THE BUSINESS OF CON STRUCTION HAD TRADING LIABILITY AND HENCE THE CESSATION OF SUCH LIABILITY SHOULD BE TREATED AS INCOME OF THE ASSESSEE UNDER SECTION 41(1) OF THE A CT. ACCORDINGLY, HE ADDED THE SAID AMOUNT OF RS.3,74,00,000I- TO THE TOTAL INCOME OF THE ASSESSEE. IN SUPPORT OF HIS VIEW, THE AO RELIED UPO N THE JUDGMENTS IN THE CASES OF T. V. SUNDARAM LYENGAR AND SONS LTD, 222 I TR 344 (SC) AND SUGAULI SUGAR WORKS PVT. LTD 236 ITR 518 (SC). THE AO ALSO OBSERVED THAT THOUGH BOTH THE ASSESSEE AS WELL AS M/S DAWAT-E-HAD IYAH TRUST, HAVE 3 ITA 5257/MUM/2014 CONTENDED THAT THE TRANSACTION WAS IN RESPECT OF TR ANSFER OF PROPERTY, BUT THIS FACT WAS NOT SUBSTANTIATED BY THE ASSESSEE WIT H ANY COGENT EVIDENCE. BOTH THE PARTIES WERE SEPARATELY ASKED TO FURNISH THE EVIDENCE IN THIS REGARD BUT BOTH THE PARTIES FAILED TO FURNISH ANY PROOF THAT THE TRANSACTION WAS FOR AN IMMOVABLE PROPERTY. WITHOUT ANY DOCUMENTATION, A PROPERTY TRANSACTION OF THE MAGNIT UDE OF RS. 3.74 CRORES IN THE YEAR 1995 WAS BEYOND COMPREHENSION. S INCE THERE WAS NO SUPPORTING EVIDENCE, THE AO HELD THAT THE ADVANCE R ECEIVED BY THE ASSESSEE FROM M/S DAWAT-E-HADIYAH TRUST WAS AN INTE REST-FREE UNSECURED DEPOSIT IN THE COURSE OF THE BUSINESS OF THE ASSESS EE COMPANY. THUS, ON THE GROUND OF CESSATION OF THE LIABILITY, THE AO ADDED THE AMOUNT OF RS. 3.74 CRORES U/S 41(1) OF THE ACT. 4. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE L D. CIT(A) AND MADE DETAILED SUBMISSIONS. IT WAS SUBMITTED THAT T HE IMPUGNED AMOUNT WAS RECEIVED BY THE ASSESSEE WITH REGARD TO SALE OF PROPERTY LOCATED AT CHENNAI. UNDER THESE CIRCUMSTANCES, NO ADDITION CO ULD HAVE BEEN MADE U/S 41(1) OF THE ACT. THIS AMOUNT WAS NOT RECEIVED IN ANY MANNER AS PART OF ANY BUSINESS TRANSACTION. THE PROVISIONS OF SEC TION 41(1) ARE NOT APPLICABLE HERE AT ALL. IT WAS SUBMITTED THAT IT W AS WRONG ON THE PART OF THE AO TO OBSERVE THAT THE ASSESSEE HAD NOT SUBSTAN TIATED THE FACT OF PROPERTY TRANSACTION WITH ANY EVIDENCE. IT WAS A LSO WRONG ON THE PART OF THE AO TO HOLD THAT THE ADVANCE RECEIVED BY THE ASSESSEE FROM M/S DAWAT-E-HADIYAH TRUST WAS AN INTEREST-FREE UNSECURE D DEPOSIT IN THE COURSE OF THE BUSINESS OF THE ASSESSEE COMPANY. THE ASSESSEE HAD ALSO IN THIS REGARD FURNISHED COPIES OF THE CORRESPONDENCES BETWEEN ITSELF AND M/S DAWAT-E-HADIYAH TRUST INDICATING THAT ALL THROU GH, THE INTENTION OF THE ADVANCE RECEIVED WAS FOR TRANSFER OF THE ASSESS EES PROPERTY AT MADRAS AND WHEN THE DEAL DID NOT MATERIALISE, THE S AID M/S DAWAT-E- 4 ITA 5257/MUM/2014 HADIYAH STARTED DEMANDING ITS MONEY BACK. COPIES OF ALL THESE CORRESPONDENCES WERE ALSO FURNISHED BEFORE THE ASSE SSING OFFICER. 5. THE LD. CIT(A) CONSIDERED THE ENTIRE SUBMISSIONS OF THE ASSESSEE AND ALSO EXAMINED ORIGINAL COPIES OF THE CORRESPONDENCE BETWEEN THE ASSESSEE AND THE SAID PARTY. AFTER CONSIDERING THE ENTIRE SUBMISSIONS AND MATERIAL PLACED ON RECORD, IT WAS HELD BY LD.CIT(A) THAT IMP UGNED AMOUNT WAS NOT TAXABLE IN THE HANDS OF THE ASSESSEE EITHER U/S 41( 1) OR SECTION 28(IV) OR ANY OTHER PROVISIONS OF THE ACT. AFTER HOLDING SO, THE LD. CIT(A) EXAMINED THE PROVISIONS OF SECTION 51 AND HELD THAT WHENEVER THE IMPUGNED PROPERTY IS SOLD BY THE ASSESSEE, THE COST OF ACQUI SITION OF THE PROPERTY SHALL BE REDUCED BY THE AMOUNT OF RS.3.74 CRORES FO R THE PURPOSE OF COMPUTATION OF CAPITAL GAINS IN VIEW OF PROVISIONS OF SECTION 51 OF THE ACT. UNDER THESE CIRCUMSTANCES AND WITH THESE DIRECTIONS , THE ADDITION MADE BY THE ASSESSING OFFICER WAS DIRECTED TO BE DELETED . 6. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES AS WELL AS ORDERS PASSED BY LOWER AUTHORITIES. THE ADMITTE D FACTS ON RECORD ARE THAT ASSESSEE HAS BEEN SHOWING ITS RENTAL INCOME FR OM ITS PROPERTIES, INCLUDING THE IMPUGNED PROPERTY LOCATED AT MADRAS A ND THE SAME HAS BEEN ASSESSED BY THE ASSESSING OFFICER ALSO UNDER THE HE AD INCOME FROM HOUSE PROPERTY. THESE PROPERTIES HAVE BEEN UNDOUBTEDLY S HOWN AS CAPITAL ASSETS IN THE BALANCE-SHEET AND NEVER HAVE BEEN DECLARED A S STOCK-IN-TRADE. THIS POSITION HAS ALL ALONG BEEN ACCEPTED BY THE REVENUE . FURTHER, AS FAR AS THE ASSESSEE IS CONCERNED, THE LIABILITY OF RS.3.74 CRO RES IS STILL OUTSTANDING IN THE NAME OF AFORESAID PARTY. THE LD. CIT(A) HAS REC ORDED A CLEAR AND CATEGORICAL FINDING THAT CORRESPONDENCE BETWEEN THE ASSESSEE COMPANY AND SAID PARTY REVEALED THAT THE TRANSACTION WAS IN RESPECT OF ASSESSEES 5 ITA 5257/MUM/2014 PROPERTY LOCATED AT MADRAS. BUT, THE TRANSACTION CO ULD NOT BE COMPLETED. THIS FACTUAL FINDING COULD NOT BE REBUTTED BY THE L D DR. THUS, AS PER FACTS AND RECORDS BROUGHT BEFORE US, AFORESAID PROPERTY I S UNDOUBTEDLY CAPITAL ASSET OF THE ASSESSEE COMPANY. UNDER THESE CIRCUMS TANCES, IT HAS BEEN RIGHTLY HELD BY THE LD. CIT(A) THAT THE IMPUGNED AM OUNT OF ADVANCE RECEIVED TOWARDS SALE OF IMMOVABLE PROPERTY BEING C APITAL ASSET OF THE ASSESSEE COMPANY, CANNOT BE TAXED UNDER THE PROVISI ONS OF SECTION 41(1) OR SECTION 28(IV) OF THE ACT, ESPECIALLY DUE TO THE FACT THAT THE LEGISLATURE HAS PROVIDED THE SPECIFIC PROVISION IN THIS REGARD, I.E. SECTION 51 OF THE ACT. FOR THE SAKE OF READY REFERENCE, SECTION 51 IS REPR ODUCED HEREUNDER: 51. WHERE ANY CAPITAL ASSET WAS ON ANY PREVIOUS OCCASIO N THE SUBJECT OF NEGOTIATIONS FOR ITS TRANSFER, ANY ADVAN CE OR OTHER MONEY RECEIVED AND RETAINED BY THE ASSESSEE IN RESPECT OF SUCH NEGOTIATIONS SHALL BE DEDUCTED FROM THE COST FOR WHICH THE ASSET WAS ACQUIRED OR THE WRITTEN DOWN VALUE OR THE FAIR MARKET VALUE, AS THE CASE MAY BE, IN COMPUTING THE COST OF ACQUISITION: PROVIDED THAT WHERE ANY SUM OF MONEY, RECEIVED AS AN ADVANCE OR OTHERWISE IN THE COURSE OF NEGOTIATIONS FOR TRAN SFER OF A CAPITAL ASSET, HAS BEEN INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE FOR ANY PREVIOUS YEAR IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (IX) OF SUB-SECTION (2) OF SECTION 56, THEN, SUCH SUM BE DEDUCTED FROM THE COST FOR WHICH THE ASSET WAS ACQUIRED OR THE WR ITTEN VALUE OR THE FAIR MARKET VALUE, AS THE CASE MAY BE, IN COMPU TING THE ACQUISITION.] 7. A PERUSAL OF THE MAIN PORTION OF SECTION 51 CLEARLY REVEALS THAT IN CASE ANY ADVANCE IS RECEIVED TOWARDS SALE OF A CAPITAL A SSET AND IF THE SAME IS RETAINED BY THE ASSESSEE, THEN IT SHALL BE DEDUCTED FROM THE COST OF SAID ASSET FOR COMPUTING COST OF ACQUISITION. THE PROVISIONS BECOMES FURTHER CLEAR ON PERUSAL OF PROVISO TO THIS SECTION WHICH HAS BEEN I NTRODUCED WITH EFFECT FROM 01-04-2015 WHEREIN IT HAS BEEN CLARIFIED THAT IF TH E AMOUNT OF ADVANCE RECEIVED WAS TREATED AS INCOME IN PURSUANCE OF SECT ION 56(2)(IX), THEN NO 6 ITA 5257/MUM/2014 DEDUCTION SHALL BE DONE IN COMPUTING THE COST OF AC QUISITION WITH THE SAID AMOUNT. IT IS NOTED THAT PROVISIONS OF SECTION 56( 2)(IX) READS AS UNDER: 56 (2) IN PARTICULAR, AND WITHOUT PREJUDICE TO THE GENERAL ITY OF THE PROVISIONS OF SUB-SECTION (1), THE FOLLOWING INCOME S, SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD INCOME FRO M SOURCES, NAMELY:- . (IX) ANY SUM OF MONEY RECEIVED AS AN ADVANCE OR OTHERWIS E IN THE COURSE OF NEGOTIATIONS FOR TRANSFER OF A CAPITAL ASSET, IF ,- (A) SUCH SUM IS FORFEITED; AND (B) THE NEGOTIATIONS DO NOT RESULT IN TRANSFER OF S UCH CAPITAL ASSET. THE AFORESAID PROVISIONS CLEARLY LAY DOWN THAT AMOU NT OF ADVANCE RECEIVED FOR SALE OF PROPERTY SHALL BE TREATED AS INCOME U/S 56 IF THE SAME IS FORFEITED AND NEGOTIATIONS DID NOT RESULT IN TRANSFER OF SUCH CAP ITAL ASSET. BUT THESE PROVISIONS HAVE BEEN INSERTED W.E.F. 01-04-2015. T HESE PROVISIONS ARE NOT CLARIFICATORY IN NATURE. THESE PROVISIONS LAY DOWN A SUBSTANTIVE LAW CREATING ADDITIONAL TAX LIABILITY UPON AN ASSESSEE AND, THER EFORE, THIS CANNOT HAVE RETROSPECTIVE EFFECT. FURTHER, WITH THE INSERTION OF THESE PROVISIONS, IT BECOMES CLEAR THAT EARLIER THE LAW WAS NOT LIKE THIS. THUS , FOR THE YEAR BEFORE US, I.E. A.Y. 2010-11, THE THEN EXISTING PROVISIONS OF SECTION 51 SHALL BE APPLICABLE WHICH CLEARLY PROVIDES THAT THE AMOUNT OF ADVANCE RECEIVE D SHOULD BE REDUCED FROM THE COST OF ACQUISITION OF ASSET. THUS, WE REINFOR CE THE DIRECTION OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO REDUCE T HE COST OF ACQUISITION OF THE PROPERTY BY THE AMOUNT OF RS.3.74 CRORES ON SALE OF THE SAID PROPERTY AT THE TIME OF COMPUTATION OF CAPITAL GAINS AS MAY BE ARIS ING ON ACCOUNT OF SALE OF THE SAID PROPERTY. THE ACTION OF LD. CIT(A) IN DIRECTI NG THE ASSESSING OFFICER TO 7 ITA 5257/MUM/2014 DELETE THE ADDITION OF RS.3.74 CRORES WHICH WAS MAD E BY THE ASSESSING OFFICER U/S 41(1) OF THE ACT, IS HEREBY UPHELD. 8. AS A RESULT, APPEAL FILED BY THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON THIS _11 TH ___ DAY OF AUGUST, 2016. SD/- SD/- (AMIT SHUKLA) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 11 TH AUGUST, 2016 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , F-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES