Smt. Sowcar Janaki, CHENNAI V. ITO, CHENNAI

ITA 617/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4648 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 23-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: S RAMESH
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Tangible material; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 50C; 54F; 147; 148; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI ABRAHAM P.GEORGE , ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER REVENUE BY : MR. S.DAS GUPTA, JCIT ASSESSEE BY : MR. S.RAMESH, C.A. DATE OF HEARING : 26 TH AUGUST, 2013 DATE OF PRONOUNCEMENT : 29 TH AUGUST, 2013 O R D E R PER CHALLA NAGENDRA PRASAD, JM : THIS IS A BUNCH OF FOUR APPEALS. ITA NOS. 615/MDS/2012 & 972/MDS/2012 ARE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE RESPECTIVELY FOR THE ASSESSMEN T YEAR 2003-04. ITA NOS. 616 & 617/MDS/2012 ARE FILED BY T HE ASSESSEE FOR THE ASSESSMENT YEARS 2004-05 AND 2005- 06 RESPECTIVELY. ALL THESE APPEALS ARE DIRECTED AGAINS T THE DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME TAX ITA NO. APPELLANT RESPONDENT ASSESS- MENT YEAR 615/MDS/2012 SMT. SOWCAR JANAKI C/O.S.R. & CO., C.AS, 15/7, NOOR VEERASAMY LANE, NUNGAMBAKKAM,CHENNAI-34. PAN:AQMPS2940M THE INCOME TAX OFFICER, MEDIA WARD-III, 315, NEW BLOCK, 121, M.G.ROAD, CHENNAI-34. 2003-04 972/MDS/2012 THE INCOME TAX OFFICER, MEDIA WARD-III, CHENNAI-34. SMT. SOWCAR JANAKI 2003-04 616 & 617/MDS/2012 SMT. SOWCAR JANAKI THE INCOME TAX OFFICER, MEDIA WARD-III, CHENNAI-34. 2004-05 & 2005-06 ITA NOS. 615 TO 617 &972/MDS//2012 2 (APPEALS)-VI, CHENNAI DATED 31.01.2012. SINCE THE I SSUES INVOLVED ARE COMMON THEY WERE HEARD TOGETHER AND DI SPOSED OFF BY THIS CONSOLIDATED ORDER. ITA NO.615/MDS/2012:- 2. THIS IS AN APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04, WHEREIN THE ASSESSEE CHALL ENGED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) IN SUSTAINING REOPENING OF ASSESSMENT UNDER SECTION 1 47 AS VALID. 3. APART FROM QUESTIONING VALIDITY OF REASSESSMENT, THE ASSESSEE ALSO RAISED FOLLOWING GROUNDS ON MERITS:- 4. THE CIT ERRED IN IGNORING THE BINDING DECISION OF MADRAS HIGH COURT WITH REGARD TO APPLICATION OF PROVISIONS OF SECTION 53A OF TRANSFER OF PROPERTY ACT READ WITH SECTION 2(47)(V) OF THE INCOME TAX ACT, 1961. 5. THE CIT ERRED IN CONCLUDING THAT TRANSFER OF PROPERTY TOOK PLACE IN ASSESSMENT YEAR 2003-04. 6. THE CIT ERRED IN CONFIRMING THE STAND OF THE ASSESSING OFFICER THAT SECTION 50C IS APPLICABLE AND THAT THE SALE CONSIDERATION ITA NOS. 615 TO 617 &972/MDS//2012 3 FOR THE LAND FOREGONE TO THE DEVELOPER IS THE GUIDELINE VALUE OF THE PROPERTY AS ON 1.4.1981 INSTEAD OF TAKING THE COST OF CONSTRUCTION OF 9 FLATS ALLOTTED TO THE APPELLANT AS THE SALE CONSIDERATION. 4. BRIEF FACTS ARE THAT FOR THE ASSESSMENT YEAR 200 3-04, THE ASSESSEE FILED RETURN OF INCOME ON 02.04.2003 A DMITTING INCOME OF ` 41,012/- . THE ASSESSEE ALONG WITH THE RETURN ENCLOSED A NOTE IN RESPECT OF HER HOUSE PROPERTY AT 29, CENOTAPH II LANE, CHENNAI STATING THAT ASSESSEE HAS ENTERED INTO A JOINT VENTURE WITH M/S. GOLDEN HOMES PROPERT IES PVT. LTD. IN DECEMBER, 2002 FOR PROMOTING FLAT CONSTRUC TION AND RECEIVED ` 1,00,00,000 AS ADVANCE OUT OF WHICH ` 70,00,000/- HAS BEEN INVESTED IN 7% TAX FREE SAVINGS BONDS, 20 02 ON 9.1.2003. THE RETURN WAS PROCESSED UNDER SECTION 1 43(1) ON 16.7.2003 ACCEPTING THE INCOME RETURNED. LATER, TH E ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT F OR THE ASSESSMENT YEAR 2006-07 UNDER SECTION 143(3) OF TH E ACT FOUND THAT THE ASSESSEE ENTERED INTO AN AGREEMENT O F SALE AND JOINT DEVELOPMENT AGREEMENT ON 30.12.2002 RELEV ANT TO THE ASSESSMENT YEAR 2003-04 AND BY VIRTUE OF THIS A GREEMENT ITA NOS. 615 TO 617 &972/MDS//2012 4 THE ASSESSEE HANDED OVER POSSESSION OF THE PROPERTY MEASURING SIX GROUNDS AND 91 SQ.FT IN SURVEY NO.3 847/20 AND 3847/81. THE ASSESSEE RECEIVED ` 1,00,00,000/- AS ADVANCE AND CAME INTO POSSESSION OF SIX FLATS I.E. TWO FLATS IN THE FIRST FLOOR, TWO FLATS IN THE SECOND FLOOR AND ONE FLAT EACH IN THIRD AND FOURTH FLOOR OF THE BLOCK-I. THEREFORE, T HE ASSESSING OFFICER WAS OF THE VIEW THAT THERE IS A TRANSFER WI THIN THE MEANING OF SECTION 2(47) OF THE ACT BY VIRTUE OF AG REEMENT OF SALE AND JOINT DEVELOPMENT ENTERED INTO BY THE ASSE SSEE IN THE ASSESSMENT YEAR 2003-04, ISSUED A NOTICE UNDER SECTION 148 FOR THE ASSESSMENT YEAR 2003-04 TO ASSESS THE C APITAL GAINS ARISING OUT OF SALE OF THE PROPERTY. THE ASSE SSEE IN RESPONSE TO THE NOTICE UNDER SECTION 148 FILED RETU RN ADMITTING THE SAME INCOME AS ADMITTED IN THE ORIGINAL RETURN AND CONTENDED THAT THERE WAS NO TRANSFER OF ANY OWNERSH IP RIGHTS OVER THE SAID PROPERTY DURING THE YEAR WHEN THE AGR EEMENT OF SALE AND JOINT DEVELOPMENT WAS ENTERED INTO AND THE POSSESSION WAS HANDED OVER TO GOLDEN CONSTRUCTIONS ONLY TO ENABLE FURTHERANCE OF THE PROJECT AND NOT AS A TRAN SFER OF ANY OWNERSHIP RIGHTS OVER THE PROPERTY. THE AMOUNT OF ` ITA NOS. 615 TO 617 &972/MDS//2012 5 1,00,00,000/- PAID TO THE ASSESSEE AS PER THE AGREE MENT WAS ONLY A REFUNDABLE/ADJUSTABLE ADVANCE AND THE COMPE NSATORY RENT OF ` 15,000/- PER MONTH PAID BY DEVELOPER TO THE ASSESSEE DOES NOT PARTAKE THE CHARACTER OF INCOME. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT FOR THE ASSESSMENT YEAR 2003-04 UNDER SECTION 143(3) READ W ITH SECTION 147 OF THE ACT ASSESSING LONG TERM CAPITAL GAINS ON THE TRANSFER OF THE SAID LAND MADE BY VIRTUE OF AGR EEMENT OF SALE AND JOINT DEVELOPMENT. THE ASSESSING OFFICER W HILE COMPUTING THE LONG TERM CAPITAL GAINS ADOPTED THE G UIDELINE VALUE OF THE REGISTRATION DEPARTMENT FOR THE PROPER TY FOR THE UNDIVIDED SHARE OF THE LAND AT ` 1,41,10,304/- AND COMPUTED THE LONG TERM CAPITAL GAINS ACCORDINGLY INVOKING TH E PROVISIONS OF SECTION 50C OF THE ACT. THE ASSESSING OFFICER AL SO DENIED INDEXATION ON THE COST OF BUILDING WHILE COMPUTING THE CAPITAL GAINS. 5. THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSI ONER OF INCOME TAX (APPEALS) CONTENDING THAT THE REOPEN ING UNDER SECTION 147 IS BAD IN LAW. THE ASSESSEE CONTE NDED THAT THE FACT REGARDING ENTERING INTO AGREEMENT OF SALE AND JOINT ITA NOS. 615 TO 617 &972/MDS//2012 6 DEVELOPMENT AGREEMENT WITH GOLDEN CONSTRUCTIONS IN RESPECT OF THE PROPERTY AT 29, CENOTAPH II LANE, C HENNAI HAD ALREADY BEEN FURNISHED AT THE TIME OF FILING OF RET URN OF INCOME ON 28.3.2003 BY WAY OF NOTE AND THEREFORE REOPENIN G OF ASSESSMENT IS BAD SINCE PRIMARY FACTS WERE ALREADY AVAILABLE IN THE RETURN BEFORE THE ASSESSING OFFICER WHEN TH E RETURN WAS PROCESSED UNDER SECTION 143(1) AND NO NEW FACTS HAVE COME ON RECORD FOR INITIATION OF REASSESSMENT PROCE EDINGS. 6. AS FAR AS MERITS ARE CONCERNED, THE ASSESSEE CONTENDED THAT THERE IS NO TRANSFER UNDER SECTION 2 (47) OF THE ACT AS AGREEMENT OF SALE AND THE JOINT DEVELOPMENT WAS ENTERED INTO ONLY TO DEVELOP THE PROPERTY AND THER E WAS NO TRANSFER OF ANY OWNERSHIP RIGHTS FOR THE SAID PROPE RTY. IT WAS CONTENDED THAT THE POSSESSION WAS HANDED OVER TO TH E BUILDER ONLY TO ENABLE FURTHERANCE OF THE PROJECT AND NOT AS A TRANSFER OF OWNERSHIP RIGHTS OVER THE PROPERTY. I T WAS ALSO THE SUBMISSION OF THE ASSESSEE THAT POSSESSION WAS NOT GIVEN BEFORE 31.3.2003 I.E. DURING THE ASSESSMENT YEAR 20 03-04 UNDER CONSIDERATION. IT WAS ALSO THE CONTENTION OF THE ITA NOS. 615 TO 617 &972/MDS//2012 7 ASSESSEE THAT THE GUIDELINE VALUE AS NOTIFIED BY TH E REGISTRATION DEPARTMENT CANNOT BE ADOPTED IN ASSESS EES CASE AS THE TRANSACTION IS DEEMED TRANSFER. 7. THE COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE SUSTAIN ED THE ACTION OF THE ASSESSING OFFICER IN INVOKING THE PRO VISIONS OF SECTION 147 AND HOLDING THAT THERE IS A TRANSFER OF PROPERTY WITHIN THE MEANING OF SECTION 2(47) OF THE ACT BY V IRTUE OF THE AGREEMENT OF SALE AND JOINT DEVELOPMENT OF THE PROP ERTY OF THE ASSESSEE DURING THE ASSESSMENT YEAR 2003-04. IN RESPECT OF THE CONTENTION OF THE ASSESSEE THAT SEC TION 50C CANNOT BE APPLIED, THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTION HOLDING THAT SEC TION 50C HAS APPLICATION IN THE ASSESSEES CASE AND HELD THA T THE ASSESSING OFFICER IS RIGHT IN INVOKING SECTION 50C OF THE ACT FOR THE PURPOSE OF DETERMINING SALE CONSIDERATION FOR C OMPUTING CAPITAL GAINS. IN SO FAR AS THE INDEXATION OF THE COST OF BUILDING IS CONCERNED, THE COMMISSIONER OF INCOME T AX (APPEALS) HELD THAT THE ASSESSEE IS ENTITLED FOR I NDEXATION ON ITA NOS. 615 TO 617 &972/MDS//2012 8 BUILDING WHICH STOOD ON THE LAND AS ON THE DATE OF ENTERING INTO AGREEMENT. 8. THE COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COUNSEL FOR THE ASSESSEE RELYING ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. ORIENT CRAFT LTD. IN IT APPEAL NO.555 OF 2012 D ATED 12.12.2012 SUBMITS THAT EVEN THOUGH THE RETURN WAS PROCESSED UNDER SECTION 143(1) AND NO ASSESSMENT WA S MADE UNDER SECTION 143(3) OF THE ACT, REOPENING OF ASSESSMENT UNDER SECTION 147 IS BAD IN LAW IN THE A BSENCE OF ANY TANGIBLE MATERIAL BEFORE THE ASSESSING OFFICER SUGGESTING ESCAPEMENT OF INCOME. THE COUNSEL SUBMITS THAT ASS ESSEE HAS DISCLOSED THE FACT OF ENTERING INTO AGREEMENT O F SALE AND DEVELOPMENT AGREEMENT BY WAY OF NOTE ALONG WITH THE RETURN FILED. THE COUNSEL THEREFORE, SUBMITS THAT ALL THE INFORMATION NECESSARY ARE AVAILABLE AT THE TIME OF PROCESSING T HE RETURN AND THEREFORE, THE ASSESSMENT MADE UNDER SECTION 14 7 IS BAD IN LAW. THE COUNSEL SUBMITS THAT IT IS ONLY A MER E CHANGE OF OPINION AND NO NEW INFORMATION HAS COME ON RECORD ITA NOS. 615 TO 617 &972/MDS//2012 9 SUGGESTING ESCAPEMENT OF INCOME SO AS TO INVOKE THE PROVISIONS OF SECTION 147 OF THE ACT. 9. THE DEPARTMENTAL REPRESENTATIVE PLACING RELIANC E ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. ( 291 ITR 500) SUBMITS THAT THE ASSESSING OFFICER PROCESSED THE RETURN UNDER SECTION 143(1) WITHOUT ANY SCRUTINY AND THER EFORE, THE ASSESSING OFFICER IS RIGHT IN INVOKING THE PROVISI ONS OF SECTION 147 AS HE HAS COME TO THE CONCLUSION THAT THE ASSES SEE HAD TRANSFERRED THE PROPERTY BY ENTERING INTO AGREEMENT OF SALE AND JOINT DEVELOPMENT AGREEMENT DURING THE ASSESSME NT YEAR 2003-04 WHILE COMPLETING THE SCRUTINY ASSESSMENT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07 WHERE THE ASSESSEE SOLD CERTAIN FLATS ACQUIRED IN THE FINANCI AL YEAR 2002-03 BY VIRTUE OF THIS AGREEMENT. 10. HEARD BOTH SIDES. PERUSED THE ORDERS OF LOWER AUTHORITIES AND THE CASE LAWS RELIED ON BY BOTH THE PARTIES. AS FAR AS THE REOPENING OF ASSESSMENT UNDER SECTION 1 47 IS CONCERNED, THE ASSESSING OFFICER WHILE COMPLETING T HE ITA NOS. 615 TO 617 &972/MDS//2012 10 ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07 AND COMP UTING THE LONG TERM CAPITAL GAINS ON THE SALE OF FLATS RE CEIVED BY THE ASSESSEE AS CONSIDERATION IN LIEU OF TRANSFER OF LA ND IN THE ASSESSMENT YEAR 2003-04 BY VIRTUE OF AGREEMENT OF S ALE AND JOINT DEVELOPMENT AGREEMENT, ISSUED NOTICE UNDER S ECTION 148 SO AS TO BRING TO TAX THE INCOME ESCAPED ASSESS MENT IN THE ASSESSMENT YEAR 2003-04 AS THERE WAS A TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF THE ACT IN THE ASSE SSMENT YEAR 2003-04 AS THE ASSESSEE HAS ENTERED INTO AGRE EMENT OF SALE AND JOINT DEVELOPMENT AGREEMENT WITH MR. J. RA JKUMAR BALSINGH, SOLE PROPRIETOR OF M/S. GOLDEN CONSTRUCTI ONS. THIS AGREEMENT WAS ENTERED INTO ON 30.12.2002. AS THE AS SESSING OFFICER HAD TANGIBLE MATERIAL ON RECORD WHILE COMPL ETING THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07 ISSUED N OTICE UNDER SECTION 148 FOR REOPENING THE ASSESSMENT FOR THE ASSESSMENT YEAR 2003-04. THEREFORE, THE SUBMISSION OF THE ASSESSEE THAT IT IS ONLY A MERE CHANGE OF OPINION I S NOT CORRECT. IN THE CASE OF ACIT VS. RAJESH JHAVERI STO CK BROKERS PVT. LTD. (SUPRA) THE HONBLE SUPREME COURT HELD THAT PRINCIPLES RELATING TO CHANGE OF OPINION ARE NOT AP PLICABLE IN ITA NOS. 615 TO 617 &972/MDS//2012 11 RESPECT OF THE PROVISIONS UNDER SECTION 147(1) WHER E THE RETURN WAS PROCESSED. THE HONBLE SUPREME COURT F URTHER HELD THAT SO LONG AS THE INGREDIENTS OF SECTION 147 ARE FULFILLED, THE ASSESSING OFFICER IS FREE TO INITIATE PROCEEDIN GS UNDER SECTION 147 AND FAILURE TO TAKE STEPS UNDER SECTION 143(3) WILL NOT RENDER THE ASSESSING OFFICER POWERLESS TO INITI ATE REASSESSMENT PROCEEDINGS EVEN WHEN INTIMATION UNDER SECTION 143(1) HAD BEEN ISSUED. FOLLOWING THE DECI SION OF THE HONBLE SUPREME COURT (SUPRA), WE UPHOLD THE ORDER OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SEC TION 147 OF THE ACT AS THE RETURN WAS PROCESSED ONLY UNDER SECT ION 143(1) AND NO ASSESSMENT WAS MADE UNDER SECTION 14 3(3) OF THE ACT AND THE ASSESSING OFFICER CAME TO POSSES SION OF INFORMATION OF ESCAPEMENT OF INCOME DURING THE COUR SE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2006 -07. THEREFORE, THE GROUNDS OF APPEAL NO.1 AND 2 RAISED BY THE ASSESSEE ARE DISMISSED. 11. THE ASSESSEE RAISED GROUND NO.3 STATING THAT TH E COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ITA NOS. 615 TO 617 &972/MDS//2012 12 RECOGNIZING THE FACT THAT THE PROCEDURE LAID DOWN U NDER THE PROVISO TO SECTION 151(1) FOR ISSUE OF NOTICE HAS NOT BEEN COMPLIED WITH. ON GOING THROUGH THE PROVISIONS OF SECTION 151(1), WE FIND THAT THE SAID PROVISIONS HAVE NO A PPLICATION TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS THE SAI D PROVISIONS OF SECTION 151(1) APPLIES ONLY TO CASES WHERE ASSESSMENTS WERE COMPLETED EITHER UNDER SECTION 143 (3) OR 147 OF THE ACT . THEREFORE, THIS GROUND OF APPEAL N O.3 OF THE ASSESSEE IS REJECTED 12. IN RESPECT OF THE ISSUE OF WHETHER THERE IS A TRANSFER WITHIN THE MEANING OF SECTION 2(47) OR NOT IN RESPE CT OF PROPERTY GIVEN FOR DEVELOPMENT, THE COMMISSIONER OF INCOME TAX (APPEALS) HAD CONSIDERED THE SUBMISSIONS OF TH E ASSESSEE AND HELD THAT THERE IS A TRANSFER WITHIN T HE MEANING OF SECTION 2(47) AFTER EXAMINING THE AGREEMENT ENT ERED INTO BY THE ASSESSEE WITH THE DEVELOPER OBSERVING AS UND ER:- 4 . 2 THE AR ARGUED THAT THE AO HAS WRONGLY PRESUMED TH AT THE POSSESSION OF THE PROPERTY WAS HANDED OVER TO T HE DEVELOPER/BUILDER D U RING T HE FINANCIAL YEAR WHEREAS THE CLAUSE 5 OF THE AGREEMENT STATES THAT THE ASSESSEE SHALL HANDOVER THE VACANT POSSESSION ON OR BEFORE 31 . 03. 2 003 ITA NOS. 615 TO 617 &972/MDS//2012 13 AND HENCE THE RECORDED FACTS ARE WRONG . FURTHER THE AR PO I NTED OUT THAT THE AO HAS I NFERRED THAT T HE CONSIDE R ATION OF RS.1 CRORE WAS NOT RETURNABLE CONSIDERATION WHER EAS CLAUSE 3 OF THE AGREEM E NT CL EARLY STATES THAT IT IS A REFUNDABLE/ADJUSTMENT ADVANCE, WH I CH HAS A L SO BEEN REPRODUCED BY THE AO IN PAGE NO 4 OF THE ORDER. HE ALSO SUBMITTED T H AT THE APPELLANT OBTAINED POSSESSION OF 6 FLATS MUCH LATER BASED ON P LANNING PERMIT ISSUED ON 07.07 . 2003 AND HENCE THE AO HAD NO EVIDENCE T O S T AT E THAT SUCH HANDING OVER OF FLATS TOOK PLACE DURING FINANCIAL Y EAR ' RELEVANT TO ASSESSMENT YEAR 2003-04. ON CAREFUL CONSIDERATION, I FIND THAT I N THE CASE OF M/S T.V. S U NDARAM IYENGAR & SONS LTD VS CIT (37ITR 2 6 IN S I MILAR CIRCUMSTANCES THE HON'BLE HIGH COURT, MADRAS HELD T HAT: ' A S ON THE FACTS THERE WAS NOTHING TO SHOW THAT THE PRICE WAS TO BE OF AN Y FUTURE TIME, THE PRICE OF THE ASSETS TRANSFERRED TO COMPANY C BE C AME PAYABLE FORTHWITH, VIZ . , IN THE ACCOUNTING YEAR, THE SSESSEES OBTAINED THE RIGHT TO RECEIVE THE PRICE IN THE ACCOUNTING YEAR AND THE CAPITAL GAINS IN RESPECT OF THE SALE OF THOSE ASSETS AROSE IN THAT TEAR: (EMPHASIS SUPPLIED) WHAT THE PARTIES DID SUBSEQUENT TO THAT YEAR DID NOT HAVE ANY BEARIN G ON THE LIABILITY OF THE ASSESSEES TO TAX IN RESPECT OF THAT YEAR. THERE WAS, THEREFORE, MATERIAL TO SUPPOR T THE ASSESSMENTS MADE ON THE ASSESSEES . ' 4.3 ON THE ISSUE OF TAXABILITY IN THE HANDS OF LAN D OWNERS IN RESPECT OF DEVELOPMENT AGREEMENTS THE MUM BAI HIGH COURT IN THE CASE OF CHATURBHUJ DWARKADAS KAPA DIA V. CIT, R EPORTED IN 260 ITR 491 HELD THAT: 'THE ABOVE OBSERVATION MAKES IT CLEAR THAT THE AGREEMENT, READ AS A WHOLE, WAS TAKEN TO HAVE PASSED COMPLETE CONTROL OVER THE PROPERTY IN FAVOUR OF THE DEVELOPER. IN SUCH A CASE, THE DATE OF THE CONTRACT ALONE WAS HELD TO BE RELEVANT TO DECIDE THE YEAR OF CHARGEABILITY. (EMPHASIS SUPPLIED)' 4 . 4. THE AR PLACED RELIANCE ON THE JURISDICTIONAL HIG H COURT DECISION IN THE CASE OF CIT VS G. SAROJA TC . A.217 OF 2004 TO ARGUE THAT NO SALE CONSIDERATION WAS RECEIV ED DURING THE YEAR IN THE CASE OF THE APPELLANT AND HE NCE PROVISION OF SECTION 53A OF TRANSFER OF PROPERTY AC T IS NOT ITA NOS. 615 TO 617 &972/MDS//2012 14 ATTRACTED. THE ARGUMENTS OF THE AR ARE REPRODUCED HEREUNDER: SECTION 2(47)(V) OF THE INCOME TAX ACT CAN BE INVOK ED ONLY UPON SATISFACTION OF THE INGREDIENTS OF SECTIO N 53A OF THE TRANSFER OF PROPERTY ACT. THE INGREDIENTS OF SECTION 53A OF TRANSFER OF PROPE RTY ACT REQUIRE THAT THE TRANSFEROR SHOULD HAVE RECEIVED CONSIDERATION EITHER IN PART OR IN FULL FOR ' TRANSFER OF THE PROPERTY. IN THE ABOVE CASE, THE CONSIDERATION IS 6 5% OF PLINTH AREA TO BE BUILT AND THE RECEIPT OF ` L CRORE WAS A PERFORMANCE DEPOSIT AND THE SAME WAS SETTLED BY THE DEVELOPER ONCE THE AMOUNTS WERE RECEIVED BY HIM UPO N SALE OF EARMARKED FLATS. THE OTHER INGREDIENT OF HANDING OVER POSSESSION TO THE DEVELOPER HAS ALSO NOT BEEN DONE. IN THE ABSENCE OF THE ABOVE TWO REQUIREMENTS, INVOK ING SECTION 2(47)(V) IS NOT TENABLE IN LAW. BUT ANALYSIS OF THE FACTS OF THE CASE OF THE APPELL ANT REVEAL THAT A SUBSTANTIAL SUM WAS PAID AS ADVANCE AND AS HELD IN THE DECISION RELIED ON BY THE AR WRITTEN A GREEMENT WAS EXECUTED IN THE YEAR CONCERNED WHICH CONSTITUT E 'ESSENTIAL INGREDIENT ' TO DECIDE THE YEAR OF CHARGEABILITY OF CAPITAL GAIN. 4.5 IN VIEW OF THE DECISIONS REPORTED IN 37 ITR 26 & 260 ITR 491 IT IS CLEAR THAT CONSIDERING THE FACTS OF THE C ASE OF THE APPELLANT, T HE CHARGEABILITY OF CAPITAL GAIN AROSE ON EXECUTION OF THE AGREEMENT OF SALE AND JOINT DEVELO PMENT DATED 30.12 . 2002 AS THE APPELLANT OBTAINED TH E RIGHT TO RECEIVE THE PRICE ON THIS DATE AND HENCE CHARGEABI L ITY TO TA X AROSE AS A CONSEQUENCE. THE SUBSEQUENT DATE OF ACTU AL HAND L NG OVER OF VACANT POSSESSION OR SUBSEQUENT RECEIPT OF CONSTRUCTED FLATS DO NOT CHANGE THE CHARGEABILITY I N VIEW OF THE JUDICIAL PRONOUNCEMENTS ON THIS ISSUE AND HENC E OBJECTIONS RAISED BY THE AR WITH REGARD TO BRINGING TO TAX CAPITAL GAIN ON SALE OF THE PROPERTY IN QUESTION DO NOT SURVIVE. THESE QROU N D S O F A P P E A L AR E DISMISSED. 5 . GROUND NOS . 4 TO 7 DEALS WITH TRANSFER OF OWNERSHIP RIGHTS OVER THE PROPERTY. IN GROUND NO.4, THE APPELLANT SUBMITTED THAT THE POSSESSION HAD B E EN HANDED OVER TO M/S. GOLDEN CONSTRUCTIONS ONLY TO ENABLE FURTHERANCE OF THE PROJECT AND THERE WAS NO TRANSFER OF ANY OWNERSHIP RIGHTS INTENDED OR ACTUAL OVER THE SAID PROPERTY. IN GROUN D NO.5 IT WAS SUBMITTED THAT THE POWER OF ATTORNEY ISSUED IN FAVOUR OF M/S. GOLDEN CONSTRUCTIONS WAS NOT AN IRREVOCABLE ON E. IN ITA NOS. 615 TO 617 &972/MDS//2012 15 GROUND NO.6 IT WAS S UBMITTED THAT THE AMOUNT OF RS.L CRORE PAID TO THE APPEL L ANT WAS ONLY A REFUNDABLE / ADJUSTABLE ADVANCE AND NOT IN THE NATURE OF A CONSIDERATION PA I D BY THE BUILD E R AND IT IS IN THE NATURE OF PERFORMANCE S ECURITY DEPOSIT F OR DELIVERING THE CONTRACT. ) N GROUND NO. 7 , IT WAS SUBMITTED THAT THE PL A NNING PERMIT ITSELF HAD BEEN ISSUED ONLY ON 26.05.2003, CONSTRUCTION A P P ROVAL ON 07.07.2003, WORK PERMIT ISSUED ON 04.07.2003 AND HE N CE NONE OF THE CONDITIONS LAID IN TRANSF E R OF PROPERTY ACT IS SATISFIED FO R INVOK I NG THE PROVISIONS OF SECTION 2(47)(V)J(VI) FOR AY 2 003 - 0 4 . THE AO RELIED ON THE P R OVISIONS OF SECTION 2(47)(V) AND HIGHLIG H TED THE CLAUSES IN A G R E E MENT F OR S ALE AND FOR JOINT DEVELOPMENT IN PARA 5 AND FURNISHED P OINTS IN PARA 6 OF THE ASSESSMENT ORDER TO HOLD THAT THE TRANSACTIO N ENT ERED INTO BY THE APPELLANT WITH THE PROMOTER M /S GOLD E N CONSTRUCTIONS , AM O U NT E D TO ' DE E MED TRANSFER' AND CAPITAL GAIN IS TA X ABLE THIS YEAR . O N CA R EFU L CONS I D ER A T ION, I FIND THAT THE JUDGMENT OF BOMBAY HIGH COURT I N C H AT URBHUJ D WA R K ADAS KAPADIA V. CI T, (260 IT R 49 1) HAS CLEARLY HE L D THAT C H A RG EA BIL IT Y TO TAX AR ISES ON THE DATE AGREEMEN T I S ENTE R E D INTO A ND ON EX ECU T I O N OF AGR E E MEN T , T HE APP E L LA NT OBT A IN ED R I GH T T O RE C E I VE CO N SI D E RA TI ON A ND HENC E RES PECT F ULLY FO L L O W ING TH E JUD G ME NT I CONF IRM T H E S TAND OF T HE AO THA T TRANSFER OF TH E PROPE R T Y IN Q UE S TIO N HAS TA KEN P L A C E I N THE REL E V A NT FINANCIA L YEAR ON E X ECUTION OF AGREEMENT FOR SALE AN D FOR JOINT DEV E LOPMENT . HENCE THES E GROUNDS OF THE APPELLANT A R E D ISMISSED . 13. ON GOING THROUGH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE CLAUSES OF THE AGREEM ENT OF SALE AND JOINT DEVELOPMENT AGREEMENT DATED 30.12.20 02 READ WITH SUPPLEMENTAL AGREEMENT DATED 15.02.2003 AND P OWER OF ATTORNEY DATED 30.12.2002 EXECUTED BY THE ASSESSEE IN FAVOUR OF THE BUILDER AUTHORISING THE BUILDER TO SE LL AND REGISTER THE FLATS IN THE NAME OF PROSPECTIVE BUYERS, WE ARE OF THE VIEW THAT THERE IS A TRANSFER WITHIN THE MEANING OF SECT ION 2(47) BY VIRTUE OF ENTERING INTO AN AGREEMENT OF SALE AND JO INT ITA NOS. 615 TO 617 &972/MDS//2012 16 DEVELOPMENT. AS PER CLAUSE 5 OF THE AGREEMENT OF SA LE AND JOINT DEVELOPMENT, THE OWNER SHALL HANDOVER VACANT POSSESSION OF THE SCHEDULE C MENTIONED PROPERTY ALONG WITH ORIGINAL TITLE DEEDS PERTAINING TO THE SCHEDUL E MENTIONED PROPERTY ON OR BEFORE 31.03.2003. THOUGH THE ASSESS EE SUBMITS THAT THE POSSESSION WAS GIVEN AT LATER POIN T OF TIME I.E. AFTER 31.03.2003, THERE IS NO EVIDENCE ON RECO RD TO SUGGEST THAT THE POSSESSION WAS GIVEN AT A LATER PO INT OF TIME, EVEN THOUGH THE CONSTRUCTION PERMIT WAS GIVEN BY TH E MUNICIPAL AUTHORITIES ON 11.07.2003 AND PLANNING PE RMIT WAS GIVEN ON 26.05.2003 AND DEMOLITION CERTIFICATE ON 19.02.2003. AS PER CLAUSE 21OF THE AGREEMENT, THE P ROMOTER SHALL PAY THE OWNER I.E. THE ASSESSEE A SUM OF ` 15,000/- PER MONTH FROM THE DATE OF GETTING VACANT POSSESSION OF THE SCHEDULE C PROPERTY, TILL THE DATE OF COMPLETION OF THE FLAT FOR HER ALTERNATE ACCOMMODATION. SUPPLEMENTAL AGREE MENT WAS ENTERED INTO ON 15.02.2003 BY THE ASSESSEE WITH THE PROMOTER, WHEREIN THE ASSESSEE AUTHORIZES THE PROMO TER TO SELL THE OTHER FLATS ALLOTTED TO HER SHARE FULLY DE SCRIBED IN SCHEDULE C . THE PROMOTER IS ALSO AUTHORIZED TO R ECEIVE ITA NOS. 615 TO 617 &972/MDS//2012 17 ADVANCE, SALE CONSIDERATION ETC. AND OTHER AMOUNTS AND TO SIGN SALE DEEDS AND OTHER DOCUMENTS IN RESPECT OF THE FLATS MENTIONED IN SCHEDULE C. THE ASSESSEE ALSO GAVE P OWER OF ATTORNEY TO THE PROMOTER MR. J.RAJKUMAR PALSINGH ON 30.12.2002 REGISTERED IN THE OFFICE OF THE SUB-REGI STRAR, ANNA NAGAR VIDE DOCUMENT NO.1560/2002 EMPOWERING THE PROMOTER TO SELL THE FLATS ON BEHALF OF THE ASSESSE E. ALL THESE GO TO SHOW THAT THERE IS A TRANSFER WITHIN THE MEAN ING OF SECTION 2(47) OF THE ACT BY VIRTUE OF ENTERING INTO AN AGREEMENT OF SALE AND JOINT DEVELOPMENT BY THE ASSE SSEE WITH MR.J. RAJKUMAR PALSINGH IN THE ASSESSMENT YEAR 2003- 04. IN THE CIRCUMSTANCES, WE UPHOLD THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING TH AT THERE IS A TRANSFER WITHIN THE MEANING OF SECTION 2(47) O F THE ACT IN RESPECT OF THE PROPERTY. THUS, GROUNDS OF APPEAL NO S.4 AND 5 ARE DECIDED AGAINST THE ASSESSEE. 14. AS FAR AS GROUND OF APPEAL NO.6 IS CONCERNED I .E. INVOKING THE PROVISIONS OF SECTION 50C AND CONSIDE RING THE ITA NOS. 615 TO 617 &972/MDS//2012 18 GUIDELINE VALUE OF REGISTRATION DEPARTMENT FOR THE PURPOSE OF COMPUTING CAPITAL GAINS, WE ARE UNABLE TO ENDORSE T HE VIEW OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN ACCEPT ING THE DECISION OF THE ASSESSING OFFICER IN INVOKING THE P ROVISIONS OF SECTION 50C OF THE ACT. THE JODHPUR BENCH OF THE T RIBUNAL IN THE CASE OF NAVNEET KUMAR THAKKAR VS. ITO (110 ITD 525) HELD THAT UNLESS THE PROPERTY TRANSFERRED HAS BEEN REGISTERED BY SALE DEED AND FOR THAT PURPOSE VALUE HAS BEEN AS SESSED AND STAMP DUTY HAS BEEN PAID BY THE PARTIES SECTION 50C INSERTED BY FINANCE ACT, 2002 WITH EFFECT FROM 1.4 .2003 CANNOT COME INTO OPERATION. SIMILAR VIEW HAS BEEN T AKEN BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ITO VS. KUMUDHINI VENUGOPAL ( 5 ITR (TRIB) 145), WHEREIN T HE TRIBUNAL HELD THAT WHEN THE AGREEMENT IS NOT REGIST ERED, THE PROVISIONS OF SECTION 50C HAVE NO APPLICATION. A S IMILAR VIEW HAS BEEN EXPRESSED BY THE LUCKNOW BENCH OF THE TRIB UNAL IN THE CASE OF CARLTON HOTEL (122 TTJ 515) AND JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF VIJAYALAKSHMI DHADIA (2 0 DTR 365). RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, W E REVERSE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) ON ITA NOS. 615 TO 617 &972/MDS//2012 19 THIS ISSUE AND ALLOW THE GROUND OF APPEAL NO.6 RAIS ED BY THE ASSESSEE. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ITA NO.972/MDS/2012:- 16. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) STATING T HAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ALLOWING DEDUCTION TOWARDS COST OF BUILDING EXISTING ON THE LAND WITH INDEXATION BENEFIT FOR THE PURPOSE OF COMPUTATION O F LONG TERM CAPITAL GAINS. 17. THE DEPARTMENTAL REPRESENTATIVE REFERRING TO P ARAS 6 AND 6.1 OF THE IMPUGNED ORDER SUBMITS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIF IED IN HOLDING THAT THE ASSESSEE DID NOT INDEX THE COST OF BUILDING. 18. THE COUNSEL FOR THE ASSESSEE RELIED ON THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS). ITA NOS. 615 TO 617 &972/MDS//2012 20 19. THE COMMISSIONER OF INCOME TAX (APPEALS) TAKIN G NOTE OF THE PRINCIPLES OF THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF MS. DHUN DADABHOY KAPADIA VS. CIT (63 ITR 651) ALLOWED THE CLAIM OF THE ASSESSEE IN R ESPECT OF INDEXATION ON BUILDING EXISTED ON LAND AS ON THE DA TE OF ENTERING INTO AN AGREEMENT OBSERVING AS UNDER:- 6 . 1 WITH REG A RD TO THE CLAIM OF THE APPELLANT TH A T I NDEXED COST O F BUIL D I NG IS REQ UI RED TO BE ALLOWED AS DEDUCTION AND RELIANCE PLACED ON THE DE CISION OF - M ISS DHU N DADABHOY KA P A D IA V . C I T [ 1967] 63 ITR 65 1 ( SC ) IN SUPP ORT IS CARE F U L LY CON S IDERED . THE A O R E JECTED THE CLAIM BY H O L DING THA T W HAT IS TRAN SF ERRED IS ONLY L AND . CAR EF UL CONS ID ERATION O F C HAPT ER IV - E OF THE ACT REVEAL THA T ON TRAN SF ER O F CAPITAL ASSE T TH E APP E L L A NT IS ELI GIBLE TO CL AI M DEDUCTIONS SPECI FIED U/S 4 8 W H ICH INCL UDE C OST OF A CQU I S IT ION OF TH E A SSET A ND THE CO ST OF AN Y IMPR OVEMENT THERE T O . THE R EF O R E I H O L D THAT T HOUGH AS PER T HE AGR E EM ENT OF SALE AND JO INT DE VE L OPME N T WHAT IS TR AN SF ERRE D IS ON L Y TH E LAND , B U T T H E FA C T THAT O N EXE CU T ING TH E SAID AGREE M ENT THE APPELLANT ALSO C E DES RIGHT OVER TH E BUIL D I NG LOCA T ED ON THE SAID LAND AND HENCE FOR THE PUR P OSE OF WORKING OUT CAPI T AL GA I N THE COST OF TH E BUILD I NG A N D I N DE X ATION OF BENEFIT THER E ON S HOU L D ALSO ITA NOS. 615 TO 617 &972/MDS//2012 21 TO BE DED UCTE D T O ARR I VE A T THE COST FOR T HE PURPOSE O F COMPUT I NG TA X ABLE CAPITAL G AIN . CAP IT A L G AI N TA X IS A SSE SSED IN THE HA N D S OF T HE T R ANS F ER O R AND THE ' T RANSFER' IS TO B E S E EN FROM THE POINT OF VIEW O F TR AN S F E ROR AND STATUTORY DE D U CTIONS ARE TO BE PRO VI D E D. THIS GROUND O F APP E AL IS AL LOWE D. 20. ON GOING THROUGH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), WE DO NOT FIND ANY GOOD REASO N TO INTERFERE WITH THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE. WE THEREFORE CONFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) ON THIS I SSUE AND REJECT THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 21. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ITA NOS. 616 AND 617/MDS/2012:- 22. THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGA INST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) -VI CHENNAI DATED 31.1.2012 FOR THE ASSESSMENT YEARS 20 04-05 AND 2005-06 RESPECTIVELY. THE ASSESSEE HAS RAISED SEVERAL GROUNDS INCLUDING JURISDICTION TO REOPEN THE ASSESS MENT UNDER ITA NOS. 615 TO 617 &972/MDS//2012 22 SECTION 147 AND DENYING BENEFIT UNDER SECTION 54F O F THE ACT AND OTHER GROUNDS. 23. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS IN BOTH THESE TWO APPEALS CONTENDING THAT THE ASSESSM ENT ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTIO N 143(3) READ WITH SECTION 147 ARE BEYOND THE DUE DATE FOR C OMPLETION OF THE ASSESSMENT AND THEREFORE BAD IN LAW. THE ADD ITIONAL GROUNDS RAISED BY THE ASSESSEE ARE ADMITTED AND TAK EN ON RECORD AS THESE GROUNDS ARE PURELY LEGAL GROUNDS AN D GOING TO THE ROOT OF THE MATTER AND THE VALIDITY OF THE A SSESSMENT ORDERS PASSED. 24. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT NOTIC E UNDER SECTION 148 WAS SERVED ON THE ASSESSEE ON 18.3.2009 AS PER THE ASSESSMENT ORDER IN BOTH THESE ASSESSMENT YEARS . THE COUNSEL SUBMITS THAT AS PER THE PROVISIONS OF SECTI ON 153(2) OF THE ACT, THE ASSESSMENT SHOULD HAVE BEEN COMPLET ED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE UNDER SECTION 148 WAS SERVED. AS PER THE ASS ESSMENT ITA NOS. 615 TO 617 &972/MDS//2012 23 ORDER, NOTICE WAS SERVED ON 18.03.2009, THEREFORE, ASSESSMENTS SHOULD HAVE BEEN COMPLETED BY 31.03.201 0, WHEREAS THE ASSESSMENTS WERE COMPLETED FOR THESE TW O ASSESSMENT YEARS ONLY ON 31.12.2010, WHICH IS BEYON D THE DUE DATE OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH NOTICE UNDER SECTION 148 WAS SERVED. THEREFOR E, HE SUBMITS THAT AS THE ASSESSMENTS WERE COMPLETED BEYO ND THE DUE DATE STIPULATED UNDER SECTION 153(2) OF THE ACT , THE ASSESSMENTS ARE BAD IN LAW. 25. THE DEPARTMENTAL REPRESENTATIVE FAIRLY SUBMITS THAT THE ASSESSMENTS WERE MADE BEYOND THE TIME LIMIT SPE CIFIED UNDER SECTION 153(2) OF THE ACT. 26. WE HAVE GONE THROUGH THE ASSESSMENT ORDER, THE ORIGINAL NOTICE SERVED ON THE ASSESSEE UNDER SECTIO N 148 AND THE PROVISIONS OF SECTION 153(2) OF THE ACT . IT IS AN UNDISPUTED FACT THAT THE NOTICES UNDER SECTION 148 WERE SERVED ON THE ASSESSEE ON 18.03.2009. AS PER THE PROVISIONS OF SE CTION 153(2) OF THE ACT, NO ORDER OF ASSESSMENT OR REASSE SSMENT OR ITA NOS. 615 TO 617 &972/MDS//2012 24 RECOMPUTATION SHALL BE MADE UNDER SECTION 147 AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YE AR IN WHICH THE NOTICE UNDER SECTION 148 WAS SERVED. IN THIS CA SE, AS THE NOTICES UNDER SECTION 148 WERE SERVED ON 18.03.2009 , ASSESSMENTS UNDER SECTION 143(3) READ WITH SECTION 147 SHOULD HAVE BEEN COMPLETED ON OR BEFORE 31.03.2010. HOWEVER, THE ASSESSMENTS WERE COMPLETED FOR BOTH TH ESE ASSESSMENT YEARS ON 31.12.2010 WHICH IS BEYOND THE TIME LIMIT SPECIFIED UNDER SECTION 153(2) OF THE ACT. TH EREFORE, THE ASSESSMENTS MADE FOR BOTH THESE TWO ASSESSMENT YEAR S UNDER SECTION 143(3) READ WITH SECTION 147 ARE BARR ED BY LIMITATION AND BAD IN LAW. THEREFORE, THE REASSESSM ENTS MADE FOR BOTH THESE ASSESSMENT YEARS BEYOND THE PERIOD O F LIMITATION ARE LIABLE TO QUASHED. ORDERED ACCORDING LY. THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE ALLOW ED. 27. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ITA NOS. 615 TO 617 &972/MDS//2012 25 28. TO SUM UP, THE APPEAL OF THE ASSESSEE IN ITA NO.615/MDS/2012 IS PARTLY ALLOWED AND ITA NOS.616 & 617/MDS/2012 ARE ALLOWED AND THE APPEAL OF THE REV ENUE IN ITA NO.972/MDS/2012 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THURSDAY , TH E 29 TH DAY OF AUGUST, 2013 AT CHENNAI. SD/- SD/- (ABRAHAM P.GEORGE ) (CHALLA NA GENDRA PRASAD) ACCOUNTANT MEMBER J UDICIAL MEMBER CHENNAI, DATED THE 29 TH AUGUST, 2013. SOMU COPY TO: (1) ASSESSEE (4) CIT(A) (2) ASSESSING OFFICER (5) D.R. (3) CIT (6 ) G.F.