ITO 1(3), Uttrakhand V. Shri Rajesh Kumar Agarwal, Haldwani

ITA 5258/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3688 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 06-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHWANI TANEJA; SHANTANU JAIN ADVS
• Keywords: Capital asset
• Section: 143(3); 147

Judgement Text

1 ITA NO. 5258/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 5258/DEL/201 6 ( A.Y 2008-09) ITO 1(3) CHORGALIA ROAD, GOULAPAR, KATHGODAM, HALDWANI, DISTT. NAINITAL UTTRAKHAND (APPELLANT) VS RAJESH KUMAR AGARWAL C/O. M/S AGARWAL BOOK DEPOT, SADAR BAZAR HALDWANI AFXPA6965L (RESPONDENT) APPELLANT BY SH. ATIQ AHMAD, SR. DR RESPONDENT BY SH. ASHWANI TANEJA & SH. SHANTANU JAIN, ADVS. ORDER PER SUCHITRA KAMBLE THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 14/07/2016 PASSED BY CIT(A)-, HALDWANI. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. WHETHER LD. CIT (A) IS JUSTIFIED ON ACCOUNT OF D ECIDING THE ACTUAL DATE OF TRANSFER OF ASSET BY THE ASSESSEE IN THE AOP I.E. M /S MAHAVEER AUDYOGIK AASTHAN, LALKUAN ON 16/06/2007 WHEREAS IN THE INSTA NT CASE NO REGISTERED DOCUMENTS WAS PRODUCED BY THE ASSESSEE AT ANY TIME DURING ASSESSMENT PROCEEDINGS IN ORDER TO ASCERTAIN THE ACTUAL DATE O F TRANSFER OF THE ASSET IN AOP WHICH HAS BEEN AUTHENTICATED BY HON'BLE HIGH COURT, NAINITAL IN HIS ORDER DATE OF HEARING 01.01.2018 DATE OF PRONOUNCEMENT 08.02.2018 2 ITA NO. 5258/DEL/2016 WHEREIN IT HAS CLEARLY BEEN HELD THAT TRANSFER OF P ROPERTY CAN ONLY BE MADE THROUGH ANY INSTRUMENT WHICH IS REQUIRED TO BE REGI STERED. THEREFORE, THE DATE OF REGISTERED SALE DEED EXECUTED IN FEB, 2008 BY THE A OP FOR THE SALE OF LAND WAS CONSIDERED TO BE THE DATE OF TRANSFER OF PROPERTY M ADE BY THE INDIVIDUAL AOP MEMBER TO THE COMMON STOCK OF THE AOP. 3. THE ASSESSEE FILED HIS RETURN OF INCOME ON 31/03/2009 D ECLARING TOTAL INCOME AT RS.3,030/-WHICH WAS PROCESSED U/S 143(1) OF THE I. T. ACT 1961 ON 27/07/2009. DURING THE FINANCIAL YEAR 2007-08 RELEV ANT TO THE ASSESSMENT YEAR 2008-09, THE ASSESSEE TRANSFERRED HIS PROPERTI ES (CAPITAL ASSET) JOINTLY WITH SMT. SAKUNTALA DEVI, SHRI CHOTELAL AGRAWAL, SH RI HARIMOHAN AGRAWAL AND OTHERS TO AN AOP NAMED AFTER M/S MAHAVEER AUDHYOGIC ASTHAN (INDUSTRIAL ESTATE). THE TOTAL AREA OF LAND (CAPITAL ASSET) TRA NSFERRED BY THE ABOVE PERSONS TO THE SAID AOP (INDUSTRIAL ESTATE) WAS 198720 SQ. MT. OUT OF WHICH, THE ASSESSEE SHRI RAJESH KUMAR AGRAWAL IS THE OWNER OF 37595 SQ. MT. AN ASSESSMENT U/S 143(3) OF THE IT ACT 1961 FOR THE AY-2008-09 WAS COMPLETED IN THE ASSESSEE'S CASE I.E. A MEMBER OF THE AOP WHEREIN TH E ABOVE ISSUE OF CAPITAL ASSET AS WELL AS ISSUE OF THE SHORT TERM CAPITAL GA INS FOR A PIECE OF LAND MEASURING AREA 3893.12 SQ. MT. WAS INVOLVED. THE FACTS AND THE DECISIONS M ADE BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSE E CONCERNING THE RESEMBLING MATTER OF CAPITAL ASSET AND DETERMINATION OF SHORT TERM CAPITAL GAINS, WAS CONFIRMED BY THE CIT(A), ITAT AND HON'BLE HIGH COURT. ACCORDINGLY, IN THE C ASES OF ALL AOP MEMBERS WHO HAVE TRANSFERRED THEIR CAPIT AL ASSET TO THE AOP, THE REMEDIAL ACTIONS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT 1961 WERE INITIATED; AMONGST WHICH T HE ASSESSEE IS A MEMBER OF THE AOP ENTERED IN THE TRANSACTION. THE EARLIER ASSESSMENT IN ASSESSEE'S CASE TO DETERMINE THE STCG WAS MADE FOR A PIECE OF LAND AND THE MAJOR PORTION OF TRANSFERRED CAPITAL ASSET WAS LEFT TO BE ASSESSED. THEREFORE, A REASSESSMENT PROCEEDING WITH THE PRIOR APPROVAL OF THE COMMISSIONER OF THE INCOME TAX HALDWANI WAS INITIATED ON 09/05/2012. AC CORDINGLY, ON TOTAL INCOME OF RS.36,62,531/- ADDITION WAS MADE. 3 ITA NO. 5258/DEL/2016 4. BEING AGGRIEVED BY THE SAID ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) PARTLY ALLOWED THE APPEAL OF TH E ASSESSEE WHEREBY THE CIT(A) DIRECTED THE ASSESSING OFFICER TO INDEPENDENTLY VER IFY FROM THE DISTRICT AUTHORITIES, THE CIRCLE RATE APPLICABLE IN THIS PRO PERTY AS ON 16/6/2007 FOR COMPUTING THE SHORT TERM CAPITAL GAIN TO THE ASSESS EE. 5. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER U/S 251 OF THE INCOME TAX ACT, 1961 HAS GIVEN THE APPEAL EFFECT ORDER ON 25/10/2016 BY CALCULATING AND VERIFYING AS PER THE DIRECTIONS GIVEN BY THE CI T(A). THEREFORE, NOTHING REMAINS IN THE PRESENT APPEAL OF THE REVENUE AND AP PEAL BECOMES INFRUCTUOUS. 6. THE LD. DR COULD NOT REFUTE THE ORDER DATED 25/1 0/2016 GIVING APPEAL EFFECT ORDER. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. SINCE, THE DIRECTIONS GIVEN BY THE CIT(A) WAS COMPILED BY THE ASSESSING OFFICER VIDE ORDER DATED 25/10/2016 NOTHING REMAIN S IN THE PRESENT APPEAL AND THE APPEAL BECOMES INFRUCTUOUS. HENCE THE APPEA L OF THE REVENUE IS DISMISSED. 8. IN RESULT, THE APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH FEBRUARY, 2018 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 08/02/2018 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 4 ITA NO. 5258/DEL/2016 ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 02/01/2018 PS 2. DRAFT PLACED BEFORE AUTHOR 02/01/2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2018 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 8.02.2018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 8 .02.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.