Joint Commissioner of Income-tax, (OSD), Circle -7, Pune V. Jaiprakash Sitaram Goel, Pune

ITA 605/PUN/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5948 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-09-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 06-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURAG SRIVASTAVA
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 605 /PUN/20 1 8 / ASSESSMENT YEAR : 20 09 - 10 JT. COMMISSIONER OF INCOME TAX (OSD), CIRCLE 7, PUNE ...... / APPELLANT / V/S. SHRI JAIPRAKASH SITARAM GOEL, 3 RD FLOOR, SAN MAHU COMPLEX, 5, BUND GARDEN ROAD, OPP. POONA CLUB, PUNE 411001 PAN : AAWPG2099R / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI ANURAG SRIVASTAVA / DATE OF HEARING : 1 5 - 0 9 - 2021 / DATE OF PRONOUNCEMENT : 16 - 0 9 - 2021 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 01 - 12 - 2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 8, PUNE [CIT(A)] FOR ASSESSMENT YEAR 20 09 - 10. 2. THE ONLY GROUND RAISED BY THE REVENUE CHALLENGING THE ACTION OF CIT(A) IN HOLDING 50% OF THE SALE CONSIDERATION RECEIVED IN THE YEAR UNDER 2 ITA NO.605/PUN/2018, A.Y. 2009 - 10 CONSIDERATION IS CHARGEABLE TO TAX IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS RELATING TO THE ISSUE ON HAND ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUCTION IN REAL ESTATE. THE ASSESSEE ALONG WITH OTHERS SOLD A LAND ADMEASURING APPROXIMATELY 70 ACRES AT WAGHOLI TO M/S. WAGHOLI PROPERTIES PVT. LTD. FOR AN AGGREGATE CONSIDERATION OF RS.1,75,80,04,250/ - , OUT OF WHICH THE SHARE OF THE ASSESSEE IS RS.36,45,12,750/ - . ACCORDING TO AO THAT THE POSSESSION OF THE S AID LAND HAS BEEN HANDED OVER TO M/S. WAGHOLI PROPERTIES PVT. LTD. AND STAMP DUTY ARISING FROM THE SAID TRANSACTION HAS ALSO BEEN PAID. HE HELD, WHEN THE AGREEMENT OF SALE WAS REGISTERED ON 01 - 05 - 2008, WHEN STAMP DUTY WAS PAID ON TOTAL CONSIDERATION, WHEN POSSESSION OF PROPERTY HAS BEEN HANDED OVER, THEN, THE INCOME ARISING FROM THE SALE OF SAID LAND IS TO BE TAXED IN THE YEAR UNDER CONSIDERATION. ACCORDINGLY, HE HELD THE SHARE OF ASSESSEES SALE CONSIDERATION IS AT RS. 36,45,12,750/ - BY GIVING EFFECT TO C OST OF ACQUISITION OF RS.51,62,320/ - DETERMINED THE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE AT RS.35,93,50,430/ - . 4. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) PLACED RELIANCE IN THE CASE OF SHRI RAJENDRA S. GOEL WHO IS ALSO PARTY TO THE ABOVE SAID TRANSACTION ALONG WITH OTHERS INCLUDING THE ASSESSEE BEFORE US. IT WAS CONTENDED THAT ITAT PUNE BENCHES IN THE CASE OF SHRI RAJENDRA S. GOEL HELD THAT THE 50% OF SALE CONSIDERATION RECEIVED DURING THE A.Y. 2009 - 10 THEREIN IS LIABLE TO BE CHARGED UNDER THE CAPITAL GAINS. THE CIT(A) EXAMINED THE FACTS OF THE CASE AND HELD THE ISSUE RAISED IS SIMILAR TO THE FACTS THEREIN IN THE CASE OF SHRI RAJENDRA S. GOEL AND APPLYING THE 3 ITA NO.605/PUN/2018, A.Y. 2009 - 10 PRINCIPLE LAID DOWN BY THE ITAT PUNE BENCHES DELETED THE ADDITION MADE BY THE AO BY H OLDING THE CAPITAL GAIN IS CHARGEABLE TO 50% OF THE CONSIDERATION WHICH HAS BEEN RECEIVED IN THE YEAR UNDER CONSIDERATION. THE CIT(A) DISCUSSED THE ISSUE IN DETAIL IN PARA NOS. 5 AND 6 OF THE IMPUGNED ORDER AND WE FIND NO DISPUTE WITH APPELLANT - REVENUE RE GARD ING THE RECEIPT OF 50% OF SALE CONSIDERATION BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. THERE IS NO ORDER CONTRARY TO THE VIEW TAKEN BY THE ITAT PUNE BENCHES IN THE CASE OF SHRI RAJENDRA S. GOEL BROUGHT ON RECORD AND THEREFORE, WE FIND NO INFIRM ITY IN THE ORDER OF CIT(A) AND IT IS JUSTIFIED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPTEMBER, 202 1 . SD/ - SD/ - ( R.S. SYAL ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 16 TH SEPTEMBER, 202 1 . RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 8, PUNE 4. THE PR. CIT - 4, PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE