Appeal Details
Counselvise Citation
[2020] 111 COUNSELVISE.COM (IT) 0921 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 2 month(s) 30 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-06-2020
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Assessment Year
2012-2013
Appeal Filed On
09-03-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE VIRTUAL COURT BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.590/PUN/2017 / ASSESSMENT YEAR : 2012-13 MOHANRAO VISHWANATH GAIKWAD, AT. ASHTA (JAHANGIR), TALUKA OMERGA, DIST OSMANABAD PAN : AGLPG3994L VS. ITO, WARD-5, OSMANABAD (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-2, AURANGABAD ON 24-10-2016 IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. THIS APPEAL IS TIME-BARRED BY 76 DAYS. THE ASSESSEE HAS FILED CONDONATION APPLICATION STATING THE REASONS FOR LATE FILING OF THE APPEAL. I AM SATISFIED WITH THE SAME. THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED FOR HEARING. APPELLANT BY SHRI HARI KRISHAN RESPONDENT BY MS. NISHTHA TIWARI & SHRI PRATHAMESH J.LAWAND DATE OF HEARING 08-06-2020 DATE OF PRONOUNCEMENT 08-06-2020 ITA NO.590/PUN/2017 MOHANRAO VISHWANATH GAIKWAD 2 3. BEFORE TAKING UP THE ISSUE ON MERITS, IT IS EXPEDIENT TO NOTE THAT THE ASSESSEE INITIALLY RAISED CERTAIN GROUNDS IN THE MEMORANDUM OF APPEAL. THEREAFTER, REVISED GROUNDS WER E FILED AND STILL THEREAFTER, CERTAIN ADDITIONAL GROUNDS WERE ALSO FILED. IN THE COURSE OF VIRTUAL HEARING BEFORE THE TRIBUNA L TODAY, THE LD. AR PRESSED ONLY ONE ISSUE WHICH I WILL ADVERT TO LATER. ALL OTHER GROUNDS, INCLUDING THE ADDITIONAL GROUNDS, EXCEPT THE ONE ISSUE PRESSED BEFORE ME DURING THE COURSE OF VIRTUAL HEARING, ARE ERGO DISMISSED AS NOT PRESSED. 4. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER (AO) RECEIVED AIR INFORMATION THAT THE ASSESSEE SOLD CERTAIN IMMOVABLE PROPERTY ALONG WITH CO-OWNERS FOR A CONSIDERATION OF RS.50.00 LAKH, WHICH WAS NOT DISCLOSED IN THE RETURN OF INCOME. A NOTICE U/S.148 WAS ISSUED. THE ASSESSEE FILED A RETURN PURSUANT TO THE NOTICE, STILL NOT DISCLOSING PROFIT FROM THE TRANSFER OF LAND AT PLOT NO.360 SQ. METERS UNDER SURVEY NO.66 IN KHADGAON AREA, LATUR. THIS PROPERTY WAS PURCHASED IN THE F.Y. 2011-12 JOINTLY WITH 4 OTHER PERSONS FOR RS.4,15,000/- ON 23-06-2011 AND IN THE MONTH OF DECEMBER 2011 ITSELF, THE ASSESSEE ENTERED INTO A ITA NO.590/PUN/2017 MOHANRAO VISHWANATH GAIKWAD 3 DEVELOPMENT AGREEMENT OF THE SAME PLOT WITH A BUILDER FOR A SUM OF RS.50.00 LAKH. THE ASSESSEE SUBMITTED BEFORE THE AO THAT HE DID NOT RECEIVE HIS SHARE OF RS.9,91,250/- WHICH W AS REFERRED TO IN THE DEVELOPMENT DEED DATED 02-12-2011. TH E AO OBSERVED THAT THE LAND IN QUESTION WAS ALREADY HANDED OVER TO THE PURCHASER. INVOKING THE PROVISIONS OF SECTION 2(47), THE AO TREATED THE SAID PLOT AS SHORT TERM CAPITAL ASS ET AND COMPUTED ASSESSEES SHARE AT 1/5 TH AS SHORT TERM CAPITAL GAIN AMOUNTING TO RS.9,02,440/-. THE LD. CIT(A) DID NOT ALLOW ANY RELIEF, AGAINST WHICH THE ASSESSEE HAS COME UP I N APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. AS NOTED ABOVE, THE ONLY ISS UE PRESSED BY THE LD. AR IS NON-RECEIPT OF THE SALE CONSIDERATIO N BY THE ASSESSEE. THUS, ALL OTHER ISSUES, NAMELY, TAXATION OF THE CAPITAL GAIN IN THE HANDS OF AOP RATHER THAN INDIVIDUAL OWNERS OR THE TAXATION OF THE AMOUNT AS BUSINESS INCOME RATHER THAN CAPITAL GAIN OR NON-SERVICE OF NOTICE ETC. HAVE BECOME ACADEMIC. THE ONLY ISSUE WHICH NOW SURVIVES FOR CONSIDERATION IS THE TAXABILITY OF THE AMOUNT OF GAIN FROM THE ITA NO.590/PUN/2017 MOHANRAO VISHWANATH GAIKWAD 4 TRANSFER OF PLOT PERTAINING TO ASSESSEES SHARE AS SHORT TE RM CAPITAL GAIN. THE LD. AR CONTENDED THAT THOUGH THE DEVELOPMENT AGREEMENT WAS ENTERED INTO IN THE YEAR 2011 BUT NO AMOUNT OF CONSIDERATION WAS ACTUALLY RECEIVED AND THE SAME POSITION CONTINUES TILL DATE AS WELL. IT WAS SUBMITTED THAT IN THE ABSENCE OF RECEIPT OF SALE CONSIDERATION, NO CAPITAL G AIN CAN BE TAXED. FOR THIS PROPOSITION, HE RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN CIT VS. BALBIR SINGH MAINI (2017) 398 ITR 531 (SC) . 6. IN THE AFORENOTED JUDGMENT, THEIR LORDSHIPS, APPLYING REAL INCOME THEORY IN THE CONTEXT OF CAPITAL GAIN AS WELL, HAVE HELD THAT SINCE THE ASSESSEE DID NOT ACQUIRE ANY RIGHT TO RECEIVE INCOME UNDER THE JDA, NO PROFITS OR GAINS AROSE F ROM THE TRANSFER OF A CAPITAL ASSET ATTRACTING SECTIONS 45 AND 48 OF THE INCOME TAX ACT. IN VIEW OF THE POSITION STATED BY THE LD. AR THAT NO PART OF THE CONSIDERATION HAS BEEN RECEIVED TILL DATE AND THE ASSESSEE WILL BE OFFERING THE AMOUNT OF CAPITAL GAIN AS AND WHEN THE SALE CONSIDERATION IS ACTUALLY RECEIVED, I SET-ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE F ILE OF AO FOR VERIFYING THE ASSESSEES CONTENTION ABOUT NON- ITA NO.590/PUN/2017 MOHANRAO VISHWANATH GAIKWAD 5 RECEIPT OF SALE CONSIDERATION. IN CASE SUCH CONTENTION IS FOUND TO BE CORRECT, THEN NOTHING SHOULD BE CHARGED TO TAX IN THE HANDS OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATIO N AND THE RESULTANT COMPUTATION OF CAPITAL GAIN SHOULD BE MADE AND INCLUDED IN THE TOTAL INCOME FOR THE YEAR IN WHICH THE ASSESSEE ACTUALLY RECEIVES THE CONSIDERATION. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08 TH JUNE, 2020. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 08 TH JUNE, 2020 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-2, AURANGABAD 4. THE PR.CIT-2, AURANGABAD 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.590/PUN/2017 MOHANRAO VISHWANATH GAIKWAD 6 DATE 1. DRAFT DICTATED ON 08-06-2020 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 08-06-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -- JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -- JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *
Other Referred Cases
-
Laws Referred To
-
Expert Summary
The AO received AIR information that the assessee sold certain immovable property along with co-owners which was not disclosed by the assessee in his ROI. The Assessing Officer issued notice u/s 148. In response to the same, the assessee still did not disclose the profit from the transfer of land, and it was observed that the assessee had entered into a Development Agreement of the same land with a builder during the year under consideration. Therefore, the AO invoked the provisions of section 2(47) and treated the same as a short-term capital asset and taxed the assessee’s share as short-term capital gain. During the course of virtual hearing before the Tribunal, the AR of the assessee submitted that although the development agreement was entered into, no amount of consideration was actually received and the same position continues till date as well, and in the absence of receipt of sale consideration, no capital gain can be taxed. The Tribunal held that since the assessee did not acquire any right to receive income under the JDA, no profits or gains arose from the transfer of a capital asset attracting sections 45 and 48 of the Income Tax Act, and the same will be taxed in the year in which the assessee actually receives the consideration.
Guide to Charitable Trusts: Formation, Benefits, and Compliance
₹0
1:1 Consultation with family dentist -Your Smile Deserves the Best Care!
₹250
1:1 Consultation on Salary Structuring
₹1
Sales Forecasting Sheet
₹100
Rectification Letter - Application for rectification of mistake under Section 154 of I.T. Act
Mehul₹0
Finance Bill, 2026: Key GST Reforms that will Reshape Compliance and Cash Flows
Team Counselvise - February 03, 2026
Residency Rules: Income Tax Act, 1961 vs Income Tax Bill, 2025 — A Subtle Yet Significant Shift!
Team Counselvise - February 18, 2026
Transfer Pricing and International Tax Reforms under Finance Bill, 2026: A Practical Overview
Team Counselvise - February 07, 2026