Pallava Resorts Private Limited, CHENNAI V. DCIT, CHENNAI

ITA 536/CHNY/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8944 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 08-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARI GOVIND
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.536/CHNY/2016 ' (' / ASSESSMENT YEAR : 2011-12 M/S PALLAVA RESORTS PVT. LTD., THE RAIN TREE PLACE, B WING, 9 TH FLOOR, NO.7, MCNICHOLS ROAD, CHETPUT, CHENNAI - 600 031. PAN : AADCP 7095 C V. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE V(1), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE ,-*+ . / / RESPONDENT BY : SHRI HARI GOVIND, JCIT 0 . 1$ / DATE OF HEARING : 06.12.2018 23( . 1$ / DATE OF PRONOUNCEMENT : 19.12.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, CHENNAI , DATED 20.01.2016 AND PERTAINING TO ASSESSMENT YEAR 2011-1 2. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THE ASSESSING OFFICER SAID TO HAVE RECEIVED IN FORMATION 2 I.T.A. NO.536/CHNY/16 REGARDING SALE OF LAND IN SURVEY NO.91/3B2B SITUATE D IN MAMMALLAPURAM VILLAGE, CHENGALPET TALUK, KANCHIPURA M DISTRICT. ON THE BASIS OF SAID INFORMATION, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER FOUND THAT THERE WAS A TRANSFER O F PROPERTY BY MEANS OF A REGISTERED SALE DEED EXECUTED BY POWER O F ATTORNEY AGENT OF THE ASSESSEE AND ACCORDINGLY, LEVIED CAPIT AL GAIN TAX. REFERRING TO THE COPY OF AGREEMENT FOR SALE, THE LD .COUNSEL SUBMITTED THAT THE AGREEMENT WAS EXECUTED ON 17 TH JULY, 2007. ON THE BASIS OF THE SAID AGREEMENT, THE CAPITAL GAIN T AX WAS ASSESSED BY THE ASSESSING OFFICER. THIS TRIBUNAL ALSO CONFI RMED THE ASSESSMENT OF CAPITAL GAIN FOR ASSESSMENT YEAR 2008 -09 IN I.T.A. NO.794(MDS)/2011 BY AN ORDER DATED 11.10.2012 AND F URTHER APPEAL IS SAID TO BE PENDING BEFORE THE HIGH COURT. SINCE THE CAPITAL GAIN WAS ALREADY ASSESSED ON THE BASIS OF AGREEMENT FOR SALE, ACCORDING TO THE LD. COUNSEL, THERE CANNOT BE ANY ASSESSMENT ON THE BASIS OF REGISTRATION OF SALE DEED BY THE POWER OF ATTORNEY. ACCORDING TO THE LD. COUNSEL, THIS IS TANTAMOUNT TO DOUBLE TAXATION. THE LD.COUNSEL, THEREFORE, SUBMITTED THAT THE MATTER MAY BE REMITTE D BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AND RE-EX AMINATION. 3 I.T.A. NO.536/CHNY/16 3. ON THE CONTRARY, SHRI HARI GOVIND, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE EXECUTE D AN AGREEMENT FOR SALE OF PROPERTY AND ALSO EXECUTED PO WER OF ATTORNEY IN FAVOUR OF THE PURCHASER. ACCORDING TO THE LD. D .R., THE AGREEMENT FOR SALE WAS DATED 17.07.2007. THE POWER OF ATTORNEY WAS EXECUTED ON 23.07.2007 AND THE SALE DEED WAS AC TUALLY REGISTERED ON 19.03.2008. SINCE THE POWER OF ATTOR NEY EXECUTED THE SALE DEED AND IT WAS REGISTERED ON 19.03.2008, ACCO RDING TO THE LD. D.R., THE ASSESSING OFFICER HAS RIGHTLY ASSESSED TH E CAPITAL GAIN DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ON THE BASIS OF AGREEMENT FOR SALE DATED 17.07.2007, THE ASSESSING OFFICER APPEARS TO HAVE LEVIED CAPITAL GAIN TAX FOR ASSESSM ENT YEAR 2008- 09 AND THIS WAS ALSO CONFIRMED BY THIS TRIBUNAL BY AN ORDER DATED 11.10.2012. ON THE BASIS OF POWER OF ATTORNEY, THE POWER OF ATTORNEY HOLDER APPEARS TO HAVE EXECUTED SALE DEED IN FAVOUR OF THIRD PARTIES ON 03.06.2010. THEREFORE, THE ASSESS ING OFFICER ON THE BASIS OF INFORMATION SAID TO BE RECEIVED FROM THE S UB-REGISTRAR, FOUND THAT THE ASSESSEE EXECUTED THE SALE DEED THRO UGH POWER OF 4 I.T.A. NO.536/CHNY/16 ATTORNEY AGENT ON 03.06.2010, AND, THE CAPITAL GAIN HAS TO BE ASSESSED ONLY DURING THE YEAR UNDER CONSIDERATION. 5. THE FACT REMAINS THAT ON THE BASIS OF AGREEMENT FOR SALE, THE CAPITAL GAIN WAS ASSESSED AND THE ASSESSEE CLAIMS T HAT THIS TRIBUNAL ALSO CONFIRMED THE CAPITAL GAIN TAX LEVIED BY THE ASSESSING OFFICER. THE AGREEMENT FOR SALE WAS EXECUTED IN FA VOUR OF ONE SHRI C. RAMAKRISHNA AND THE POWER OF ATTORNEY WAS ALSO E XECUTED IN FAVOUR OF SHRI C. RAMAKRISHNA. ON THE STRENGTH OF POWER OF ATTORNEY EXECUTED IN FAVOUR OF SHRI C. RAMAKRISHNA, HE EXECUTED SALE DEED IN FAVOUR OF THIRD PARTIES. THEREFORE, T HERE WAS A CONFUSION IN WHOSE HANDS THE CAPITAL GAIN TAX HAS T O BE LEVIED WHEN THE PROPERTY WAS ACTUALLY TRANSFERRED BY WAY OF A R EGISTERED SALE DEED DATED 03.06.2010. AS FAR AS THE ASSESSEE IS C ONCERNED, THE CAPITAL GAIN TAX WAS ALREADY LEVIED AND THIS TRIBUN AL ALSO APPEARS TO HAVE CONFIRMED THE TAX LEVIED. 6. IN VIEW OF THIS FACTUAL SITUATION, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-E XAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE 5 I.T.A. NO.536/CHNY/16 ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER IN THE LIGHT OF THE MATERIAL THAT MAY BE FIL ED BY THE ASSESSEE AND FIND OUT WHEN ACTUALLY THE PROPERTY WAS TRANSFE RRED AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WI TH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 19 TH DECEMBER, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 19 TH DECEMBER, 2018. KRI. . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-3, CHENNAI 4. PRINCIPAL CIT, CHENNAI-5, CHENNAI 5. 7: ,1 /DR 6. ;' < /GF.