The Income Tax Officer, Dasuya V. Sh. Sukhdev Singh Randhawa, Hoshiarpur

ITA 571/ASR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9543 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

ITA NO.571 & 572(ASR)/2015 A.Y. 2008-09 2 BOTH THE APPEALS ARE COMMON. HOWEVER, THE GROUNDS T AKEN IN ITA NO.571/ASR/2015 ARE REPRODUCED BELOW WHICH ARE SIMI LAR IN ITA NO.572/ASR/2015: 1. THAT THE LD. CIT(A) HAS ERRED ON THE FACTS AND IN LAW IN DELETING THE ADDITION OF RS.1,49,25,000/- MADE BY T HE AO ON ACCOUNT OF LONG TERM CAPITAL GAINS. 2. THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND LAW I N FOLLOWING THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF C.S. ATWAL & OTHERS VS. CIT, LUDHIANA W HILE DELETING THE ADDITION OF RS.1,49,25,000/- IN THE CA SE OF THE ASSESSEE. 3. THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND LAW I N NOT ADJUDICATING THE CRUCIAL ISSUE OF APPLICABILITY OF SECTION 2(47)(II) AND (VI) OF THE ACT WHILE DELETING THE AD DITION OF RS.1,49,25,000/- IN THE CASE OF THE ASSESSEE AND HA S FAILED TO APPRECIATE THAT THESE TWO PROVISIONS ARE DE HORS THE PROVISIONS UNDER SECTION 2(47)(V) READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT AND SECTION 17(IA) OF THE REGISTRATION ACT. 4. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. RESTORED. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE FILED HIS RETURN DECLARING AN INCOME OF RS.1,01,937/- ON 27.0 3.2009. SUBSEQUENTLY, A REVISED RETURN WAS FILED ON 24.12.2 009 AT RS.26,89,150/-. LATER ON, THE AO RECEIVED THE INFOR MATION FROM THE CCIT, LUDHIANA AND ON THE BASIS OF THE SAME, THE CASE WAS REOPENED AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE AO WORKE D OUT THE CAPITAL GAIN ON SALE OF LAND AT RS.1,75,12,213/-. ITA NO.571 & 572(ASR)/2015 A.Y. 2008-09 4 THE TRIBUNAL AND THE AUTHORITIES BELOW WERE NOT RIG HT IN HOLDING THE ASSESSEE- APPELLANT TO BE LIABLE TO CAPITAL GAINS TAX IN RESP ECT OF REMAINING LAND MEASURING 13.5 ACRES FOR WHICH NO CONSIDERATION HAD BEEN RECE IVED AND WHICH STOOD CANCELLED AND INCAPABLE OF PERFORMANCE AT PRESENT D UE TO VARIOUS ORDERS PASSED BY THE SUPREME COURT AND THE HIGH COURT IN PILS. TH EREFORE, THE APPEALS ARE ALLOWED. CONSEQUENTLY, THE SUBSTANTIAL QUESTIONS OF LAW AS R EPRODUCED IN THE BEGINNING OF THE JUDGMENT ARE ANSWERED IN THE MANNER INDICATED H EREINBEFORE AND THE APPEALS OF THE ASSESSEE ARE DISPOSED OF ACCORDINGLY. 8. SINCE THE FACTS AND CIRCUMSTANCES ARE SIMILAR AN D THE LEGAL ISSUE IS COMMON, RESPECTFULLY FOLLOWING THE DECISION OF THE H.C. OF PUNJAB AND HARYANA (SUPRA). THE A.O. IS DIRECTED TO RESTRICT T HE COMPUTATION OF CAPITAL GAIN TO THE AMOUNTS RECEIVED BY THE ASSESSE E ONLY SUBJECT TO LAW. BALANCE ADDITION OF RS. 1,49,25,000/- STANDS DELETE D. 4. NOW, THE DEPARTMENT IS IN APPEAL BEFORE US. 5. THE LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFICER. 6. NONE APPEARED ON BEHALF OF THE ASSESSEE. 7. HAVING HEARD THE LD. DR IN THE LIGHT OF THE MATE RIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THE ISSUE IN DISP UTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HONBLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF CHARANJIT SINGH ATWAL VS. CIT, VIDE ORDER, DATED 22.07.2015, PASSE D IN ITA NO.200 OF 2013 (O&N), REPORTED AS 279 CTR 330 (P&H), WHEREIN, IT HAS BEEN HELD THAT SINCE NO POSSESSION HAD BEEN GIVEN BY THE TRAN SFEROR TO THE TRANSFEREE OF THE ENTIRE LAND IN PART PERFORMANCE O F JDA DATED 25.02.2007 SO AS TO FALL WITHIN THE DOMAIN OF SECT ION 53A OF THE TRANSFER ACT AND CONSEQUENTLY, SECTION 2(47)(V) OF THE I.T. ACT, DID NOT APPLY, THAT FURTHER, WILLINGNESS TO PERFORM THEIR P ART OF THE CONTRACT WAS ABSENT ON THE PART OF THE DEVELOPERS, OR IT COULD N OT BE PERFORMED BY ITA NO.571 & 572(ASR)/2015 A.Y. 2008-09 6 DECIDED BY THE HONBLE HIGH COURT, THE APPEALS OF B OTH THE REVENUE ARE DISMISSED 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE R EVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/10/201 6. SD/- SD/- (N.K. CHOUDHRY) (T.S. KAPOOR ) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ DATED: 19/10/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES:I) SH. SUKHDEV SINGH RANDHAWA, MUKERI AN (II) DR. AMRIK SINGH BASRA, DASUYA. 2. THE ITO, DASUYA 3. THE CIT(A)-1, JALANDHAR 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.