ITO, Hyderabad V. Sri J.Kiran Kumar, R.R.Dist

ITA 635/HYD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61851 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-02-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 28-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: A V RAGHURAM
• Keywords: Reopening of assessment; Capital asset; Gift
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER. ITA NO. ASSESSMENT YEAR APPELLANT RESPONDENT 625/HYD/2010 626/HYD/2010 627/HYD/2010 2002-03 2003-04 2004-05 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SHRI M.SAMBASIVA RAO, HYDERABAD (PAN AGMPM 3146 K) 628/HYD/2010 2002 - 03 INCOME - TAX OFFICER, WARD-11(2), HYDERABAD SMT. J.ARUNDHATI, HYDERABAD (PAN AFYPJ 8425 K) 629/HYD/2010 630/HYD/2010 631/HYD/2010 2002-03 2003-04 2004-05 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SMT. M.INDIRA, HYDERABAD (PAN ALEPM 2791 B) 632/HYD/2010 2002-03 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SHRI GONE PRABHAKAR REDDY, HYDERABAD (PAN AFBPG 2433 F ) 633/HYD/2010 634/HYD/2010 635/HYD/2010 2002-03 2003-04 2004-05 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SHRI J.KIRAN KUMAR, HYDERABAD (PAN ADPPJ 3289 E) 636/HYD/2010 637/HYD/2010 638/HYD/2010 2002 - 03 2003-04 2004-05 INCOME - TAX OFFICER, WARD-11(2), HYDERABAD SHRI J.SUDHAKAR, HYDERABAD (PAN AFYPJ 8423 R) 639/HYD/2010 640/HYD/2010 641/HYD/2010 2002-03 2003-04 2004-05 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SHRI J.SRINIVASA RAO, HYDERABAD (PAN ADOPJ 8865 B) 642/HYD/2010 643/HYD/2010 644/HYD/2010 2002-03 2003-04 2004-05 INCOME-TAX OFFICER, WARD-11(2), HYDERABAD SHRI J.GYANESHWAR, HYDERABAD (PAN ADPPJ 5752 N) APPELLANT BY : SHRI B.V.PRASAD REDDY RESPONDENTS BY : SHRI A.V.RAGHURAM DATE OF HEARING 3 . 4 .2012 DATE OF PRONOUNCEMENT 30.4.2012 ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 2 O R D E R PER BENCH: THESE ARE TWENTY APPEALS BY THE REVENUE CONCERNIN G EIGHT ASSESSEES. THEY ARE ALL DIRECTED AGAINST SIX SIMILA R, BUT SEPARATE APPELLATE ORDERS OF THE CIT(A) VI, HYDERABAD, ALL DATED 11.2. 2010. ASSESSMENT YEARS INVOLVED ARE FROM 2002-03 TO 2004-05. SINCE ONLY ONE COMMON ISSUE IS INVOLVED, THESE APPEALS ARE BEING DISPOSED OFF WITH THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY ISSUE INVOLVED IN THESE APPEALS OF THE REVENUE RELATES TO THE YEAR IN WHICH CAPITAL GAINS ARE ASSE SSABLE IN THE HANDS OF THESE ASSESSEES, WHO, ALONGWITH OTHERS, ARE CO-OWN ERS OF THE PROPERTY GIVING RISE TO THE CAPITAL GAINS. 3. BRIEF FACTS OF THE CASE, COMMON IN ALL THESE MA TTES, AS TAKEN FROM THE APPEAL FOLDER IN THE CASE OF SHRI M.SAMBAS IVA RAO FOR ASSESSMENT YEAR 2002-03, VIZ. ITA NO.625/HYD/2010, ARE THAT THE ASSESSEES HEREIN ARE CO-OWNERS OF THE LAND ADMEASUR ING 6 ACRES LOCATED AT HAFEEZPET, SERLINGAMPALLY MUNICIPALITY ALONGWITH 21 OTHER PERSONS AND THE ASSESSEES WERE HAVING 1/22 SHARE EACH IN THE SA ID LAND. THE ABOVE LAND WAS GIVEN FOR DEVELOPMENT TO M/S. PRAJAY ENGIN EERS SYNDICATE LIMITED THROUGH TWO DEVELOPMENT AGREEMENTS DATED 3. 6.1998 AND 4.2.1999. AS PER THE DEVELOPMENT AGREEMENTS, ALL TH E JOINT OWNERS WERE COMBINEDLY WITH DEFINITE SHARES IN PROPORTION TO TH E SHARE OF LAND HOLDING OF EACH OWNER ENTITLED FOR 32.5% OF THE CONSTRUCTED AREA AND THE REMAINING 67.5% OF THE CONSTRUCTED AREA BELONGED TO THE DEVELOPER. THE CONSTRUCTED AREA WAS 441870 SFT. AS PER THE UNDERST ANDING WITH THE BUILDER AS AND WHEN THE COSNTRUCTION OF PART OF THE BUILDING WAS COMPLETED, IT WAS THE RESPONSIBILITY OF THE BUILDER TO IDENTIFY PROSPECTIVE BUYERS AND EFFECT SALES AND HAND OVER THE SALE PROC EEDS TO THE RESPECTIVE CO-OWNERS. PURSUANT TO THE AGREEMENT ENTERED INTO, THE BUILDER M/S. ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 3 PRAJAY ENGINEERS SYNDICATE LIMITED MADE A PROVISION FOR RS.4,40,867,450 IN THEIR BOOKS DURING THE PREVIOUS YEAR 2001-02 REL EVANT TO ASSESSMENT YEAR 2002-03 TOWARDS AMOUNTS PAYABLE TO ALL THE LA ND OWNERS INCLUDING THE RESPONDENT-ASSESSEES HEREIN. THE BUILDER MADE T HE PAYMENTS YEAR AFTER YEAR ON THE BASIS OF SALE OF CONSTRUCTED AREA EFFECTED BY THEM. THE CONTENTION OF THE ASSESSEES BEFORE THE ASSESSING OF FICER WAS THAT THE CAPITAL GAINS ARISING OUT OF THE EARLIER MENTIONED TRANSACTION HAS TO BE ASSESSED IN DIFFERENT YEARS BASING ON THE AMOUNTS R ECEIVED FROM THE BUILDER, M/S. PRAJAY ENGINEERS SYNDICATE LTD., HYDE RABAD. THAT CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING O FFICER, ACCORDING TO WHOM, M/S. PRAJAY ENGINEERS SYNDICATE LIMITED ARRIV ED AT THE LIABILITY OF RS.4,40,87,450 DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR 2002-03 ITSELF, AND SHOWN THE SAME IN THE BALANCE S HEET AS A LIABILITY TO THE LAND OWNERS. THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT AS THE TRANSFEREE COMPANY MADE THE PAYMENTS OUT OF THE PRO VISION CREATED AND NOT FROM THE SALE PROCEEDS, ENTIRE SALE PROCEEDS FO R WHICH THE ASSESSEES ARE ENTITLED SHOULD BE CONSIDERED TO HAVE ACCRUED T O THE ASSESSEES DURING THE FINANCIAL YEAR 2001-02 ITSELF AND THERE FORE, THE SAME HAS TO BE ASSESSED UNDER THE HEAD CAPITAL GAIN, FOR THE AS SESSMENT YEAR 2002- 03 ONLY. FOR THE OTHER YEARS ALSO, HE ASSESSED THE ADMITTED CAPITAL GAINS ON PROTECTIVE BASIS. 4. ON APPEAL BEFORE THE CIT(A), ASSESSEES THROUGH ELABORATE GROUNDS RAISED, CONTESTED INTER-ALIA THE ABOVE ACTI ON OF THE ASSESSING OFFICER IN BRINGING TO TAX THE ENTIRE CAPITAL GAINS ACCRUING TO EACH OF THESE ASSESSEES IN PROPORTION TO THEIR SHARE OF HOLDING I N THE LAND IN QUESTION IN THE ASSESSMENT YEAR 2002-03 ITSELF, BY ADOPTING A P ROVISIONAL VALUE OF RS.4,40,87,450 UNILATERALLY CREATED IN THE BUILDERS BOOKS AS FULL VALUE OF CONSIDERATION. IT WAS ALSO CONTENDED THROUGH THE GR OUNDS ORIGINALLY RAISED THAT IN THE CASE OF THE ASSESSEES, THE CHARGE WAS O N THE DATE WHEN THE BUILDER IDENTIFIED A PROSPECTIVE BUYER FOLLOWED BY REGISTRATION AS BOTH THE ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 4 INCIDENTS FELL ON A SINGLE POINT OF TIME, AND ACCOR DINGLY THE AMOUNT WHICH COULD HAVE BEEN CONSIDERED AS FULL VALUE OF CONSIDE RATION IS THE AMOUNT WHICH AROSE/ACCRUED TO THE ASSESSEE ON THE DATE OF REGISTRATION FALLING WITHIN A PREVIOUS YEAR. IT WAS ALSO SUBMITTED THAT FULL VALUE OF THE CONSIDERATION WAS INDETERMINATE, SINCE THE VALUE CR EDITED IN BUILDERS BOOKS WAS TENTATIVE. IN THE GIVEN CASE, IT IS SUBM ITTED, NO COMPUTATION IS POSSIBLE ON THE TENTATIVE VALUE AND THEREFORE, THE CHARGE IS LIABLE TO FAIL 5. DURING THE COURSE OF FIRST APPELLATE PROCEEDIN GS, THE AUTHORIZED REPRESENTATIVE FOR THE ASSESSEES FILED T HE FOLLOWING ADDITIONAL GROUNDS OF APPEAL WITH A COVERING LETTER DATED 26.8 .2009- A) THAT IN THE LIGHT OF THE SETTLED LEGAL POSITION AS DECIDED BY THE JURISDICTIONAL ITAT IN THE CASE OF DR.MAYA SHENOY I TA NO.266/HYD2005/ASST, YEAR 2001-02 DT.24-10-08 AND OTHER CASES, THE TRANSFER WITHIN THE MEANING OF SECTION 2(47)(V) TOOK PLACE ON DURING FINANCIAL YEAR 1998-99 RELEVANT TO ASSESSMENT YEAR 1999-00 WHEN THE DEVELOPMENT AGREEMENT WAS ENT ERED INTO PUTTING THE DEVELOPER INTO POSSESSION OF THE L AND TO CARRY OUT CONSTRUCTION AND OTHER ALLIED WORK AND THEREFOR E THE INCOME IS ASSESSABLE IN ASSESSMENT YEAR 1999-00. B) THAT THE ACTION OF THE ASSESSING OFFICER IN ASSESSI NG THE INCOME IN ASSESSMENT YEAR 2002-03 TO 2005-06 IS CONTRARY T O THE LEGAL POSITION EXPOUNDED BY THE JURISDICTIONAL ITAT IN A NUMBER OF RECENT CASES AND THEREFORE THE ASSESSMENTS ARE LIAB LE TO BE ANNULLED SINCE THE SAME IS WITHOUT JURISDICTION. C) THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO THE SUBM ISSIONS ALREADY MADE IN THE GROUNDS OF APPEAL FILED EARLIER . SINCE THE ABOVE GROUNDS GO TO THE ROOT OF THE MATTE R IN DECIDING THE CASE, AND SINCE TO ADJUDICATE THOSE GROUNDS NO FRESH ENQU IRY WAS REQUIRED TO BE MADE AND THE REQUISITE INFORMATION IS AVAILABLE ON RECORDS OF THE DEPARTMENT, IT WAS REQUESTED THAT THE CIT(A) MAY AD MIT THE SAME AND ADJUDICATE THEREUPON. RELIANCE IN SUPPORT OF THE CO NTENTION OF THE ASSESSEES FOR THE ADMISSION OF THE ABOVE GROUNDS WA S PLACED ON THE ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 5 DECISION OF THE SUPREME COURT IN THE CASE OF NATION AL THERMAL POWER CORPORATION (229 ITR 383-387) 6. AS THE ASSESSEES HAVE RAISED ADDITIONAL GROUND S OF APPEAL, PLEADING THAT THE CAPITAL GAINS ARISING OUT OF THE DEVELOPMENT AGREEMENTS DATED 3.6.1998 AND 4.2.1999 ENTERED INTO BY THE ASS ESSEES ALONGWITH OTHERS WITH M/S. PRAJAY ENGINEERS SYNDICATE LTD. SH OULD BE ASSESSED IN THE ASSESSMENT YEAR 1999-2000 AND NOT IN ASSESSMENT YEARS 2002-03 TO 2004-05 AS COMPUTED BY THE ASSESSING OFFICER, SINCE IN VIEW OF THE DECISION OF THE HONBLE ITAT, HYDERABAD IN THE CASE OF DR.MAYA SHENOY SUPRA, THE TRANSFER WITHIN THE MEANING OF S.2(47) TOOK PLACE DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 1999-200 0 WHEN THE DEVELOPMENT AGREEMENT WAS ENTERED INTO AND THE POSS ESSION OF LAND WAS GIVEN TO THE DEVELOPER TO CARRY ON THE CONSTRUCTION WORK, THE SAME HAS BEEN FORWARDED BY THE CIT(A) TO THE ASSESSING OFFI CER CALLING FOR HIS COMMENTS AS REQUIRED UNDER S.46A OF THE IT RULES, BEFORE ADMITTING THE SAME. 7. THE ASSESSING OFFICER SUBMITTED HIS REPORT THR OUGH THE ADDITIONAL CIT, RANGE-11, HYDERABAD ON 7.1.2010. T HE ASSESSING OFFICER IN HIS REMAND REPORT SUBMITTED THAT THE ASSESSEES CONTENTION CANNOT BE ACCEPTED AS THE DEPARTMENT FILED APPEAL AGAINST THE ORDER OF THE ITAT, HYDERABAD IN THE CASE OF DR.MAYA SHENOY(SUPRA) AND THE SAME WAS PENDING BEFORE THE HONBLE HIGH COURT OF ANDHRA PRA DESH. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE FILED THE ADDITIONAL GR OUNDS OF APPEAL WITH AN INTENTION TO AVOID TAX LIABILITY AS THE TIME LIMIT TO BRING TO TAX THE CAPITAL GAINS IN THE ASSESSMENT YEAR 1999-2000 ALREADY EXPI RED, AND HENCE THE SAME SHOULD NOT BE ENTERTAINED. THE ADDITIONAL CIT IN HIS FORWARDING REMARKS ENDORSED THE VIEW EXPRESSED BY THE ASSESSIN G OFFICER. A COPY OF THE REMAND REPORT OF THE ASSESSING OFFICER WAS FORW ARDED TO THE ASSESSEE FOR COMMENTS. ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 6 8. IN RESPONSE, THE ASSESSEES MADE ELABORATE SUBM ISSIONS OPPOSING THE CONTENTIONS OF THE REVENUE IN THE REMA ND REPORT. HE DISPUTED THE CHARGE OF THE ASSESSING OFFICER THAT T HE ASSESSEE CAME FORTH WITH THE ADDITIONAL GROUNDS BEFORE THE CIT(A) ONLY TO AVOID TAXES DUE, SINCE THE PERIOD FOR REOPENING OF ASSESSMENT FOR T HE ASSESSMENT YEAR 1999-2000 HAS ALREADY EXPIRED. IT IS ALSO SUBMITTE D THAT THE ADDITIONAL GROUNDS GO TO THE ROOT OF THE MATTER AND SINCE THE SAME INVOLVE LEGAL ISSUES CAN BE RAISED AT ANY TIME EVEN DURING THE AP PELLATE PROCEEDINGS, AND NEITHER THE FACT THAT THE PERIOD FOR REOPENING OF THE ASSESSMENT FOR THE ASSESSMENT YEAR 1999-2000 HAS EXPIRED, NOR THE FACT THAT THE REVENUE HAS NOT ACCEPTED THE DECISION OF THE TRIBUN AL IN THE CASE OF DR.MAYA SHENOY (SUPRA) AND PREFERRED APPEAL BEFORE THE HONBLE HIGH COURT, CAN CONSTITUTE A VALID REASON FOR NOT ADMITT ING THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE. THE ASSESSEE ALSO RELIED ON FOLLOWING DECISIONS OF THE TRIBUNAL AND HIGH COURTS IN SUPPOR T OF ITS CONTENTION THAT THE RESULTANT CAPITAL GAIN IN THE CASE OF ASSESSEE SHOULD BE ASSESSED IN THE ASSESSMENT YEAR 1999-00 AND NOT IN ANY OTHER AS ST. YEAR- A. DR. MAYA SHENOY (ITA NO.266/HYD/2005/ASST. YEAR 200 1-02 DT.24.10.08 B. CHATURBHUJ DWRAKADAS KAPADIA VS. CIT(260 ITR 491)-B OM. C. DR.T. ACHUTHA RAO V/S. ACIT (106 ITD 388)-HYD. D. SMT.SHANTHA VIDYA SAGAR ANNAM VS. ITO (DECISION ITA T HYDERABAD BENCH A ITA NO.885/HYD/2003) E. JASBIR SINGH SARKARIA (294 ITR 196 AUTHORITY FOR A DVANCE RULING) 9. AFTER ELABORATE CONSIDERATION OF THE COMMENTS OF THE ASSESSING OFFICER IN THE REMAND REPORT AND THE REMA RKS OF THE ADDL. CIT IN HIS ENDORSEMENT, AND ALSO THE SUBMISSION OF THE ASS ESSEES THEREON, THE CIT(A) CONCLUDED THAT THE ADDITIONAL GROUNDS RAISE D BY THE ASSESSEE DESERVES TO BE ADMITTED. HE ACCORDINGLY ADMITTED T HE SAME. ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 7 10. THE CIT(A) THEREAFTER DISCUSSING THE FACTS AN D DECISION RENDERED BY THE TRIBUNAL, IN THE CASE OF DR.MAYA SH ENOY SUPRA , AND THE DECISIONS OF HONBLE MADHYA PRADESH HIGH COURT IN T HE CASE OF SMT.JEEEJEEBAI SHINDE V/S. CIT(144 ITR 693); OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ADDITIONAL CIT V/S. GM OMARKHA N (116 ITR 950); AND OTHER DECISIONS RELIED UPON BY THE LEARNED REPRESE NTATIVE FOR THE ASSESSEES DURING THE COURSE OF APPELLATE PROCEEDING S, ACCEPTED THE ADDITIONAL GROUND RAISED BY THE ASSESSEE WITH THE F OLLOWING CONCLUDING OBSERVATIONS- 7.5 FROM ALL THE ABOVE DECISIONS AND ESPECIALLY I N THE LIGHT OF DECISION OF THE HONBLE ITAT HYDERABAD IN THE CASE OF DR. MAYA SHENOY (SUPRA), IT HAS TO BE CONCLUDED THAT TH E CAPITAL GAIN ACCRUED TO THE APPELLANT ON THE DATES OF EXECUTION OF DEVELOPMENT AGREEMENTS ITSELF I.E. ON 2.6.1998 AND 4.6.1999. I T IS, THEREFORE, HELD THAT THE CAPITAL GAIN ARISING IN THE CASE OF A PPELLANT AS A RESULT OF ENTERING INTO DEVELOPMENT AGREEMENTS WITH M/S. PRAJAY ENGINEER SYNDICATE LTD., HYDERABAD IS LIABLE FOR TA X IN THE ASST. YEAR 1999-2000. ACCORDINGLY, THE ADDITIONAL GROUND RAISED BY THE APPELLANT ON THIS POINT IS ALLOWED. 11. HAVING THUS HELD IN THE CONTEXT OF THE ADDITI ONAL GROUND RAISED, THAT THE CAPITAL GAINS ARISING OUT OF THE D EVELOPMENT AGREEMENTS IN QUESTION ARE ASSESSABLE IN ASSESSMENT YEAR 1999- 2000, THE CIT(A) CONCLUDED THAT THE ORDERS PASSED BY THE ASSESSING O FFICER BRINGING PART OF THE CAPITAL GAIN TO TAX IN THE ASSESSMENT YEARS UND ER CONSIDERATION CANNOT BE SUSTAINED, AND THEREFORE, DELETED THE CA PITAL GAINS BROUGHT TO TAX IN THESE YEARS. IN THIS VIEW OF THE MATTER, HE DID NOT GO INTO THE OTHER GROUNDS OF THE ASSESSEE IN THE APPEALS BEFORE HIM, SINCE THE SAME, ACCORDING TO HIM, HAVE BECOME INFRUCTUOUS. 12. AGGRIEVED BY THE ORDERS OF THE CIT(A) ON THE ABOVE LINES, REVENUE PREFERRED THE PRESENT APPEALS BEFORE US. 13. EFFECTIVE GROUNDS OF THE REVENUE, COMMON IN AL L THESE APPEALS, AS TAKEN FROM ITA NO.625 /HYD/2010, READ A S FOLLOWS- ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 8 1. THE ORDER OF THE CIT(A) IS ERRONEOUS IN LAW AND ON FACTS. 2. THE CIT(A) ERRED IN RELYING ON THE DECISION OF T HE ITAT IN THE CASE OF DR. MAYA SHENOY AS THE MATTER HAS YET NOT REACHED THE FINALITY. 3. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT T HAT THE DEPARTMENT HAS FILED FURTHER APPEAL BEFORE THE HON BLE HIGH COURT OF ANDHRA PRADESH AGAINST THE DECISION OF THE ITAT IN THE CASE OF DR.MAYA SENOY (ITA NO.266/HYD/2005) FOR THE A.Y 2001-02 DATED 24.10.08) 4. THE CIT(A) ERRED IN CONCLUDING THAT THE CAPITAL GAIN ACCRUED TO THE ASSESSEE ON THE DATES OF EXECUTION OF DEVELO PMENT AGREEMENTS I.E. ON 2.6.98 AND 4.6.99 AND CAPITAL G AINS LIABLE TO TAX IN THE A.Y. 1999-2000. 5. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT TH AT THE COMPANY M/S. PRAJAY ENGINEERS SYNDICATE PV.T LTD. H AD MADE THE PAYM ENTS FROM THE PROVISION MADE TOWARDS LAND ACCOUNT AND NOT FROM SALE PROCEEDS OF FLATS AND TH EREFORE, THE PROVISION MADE WAS NOTHING BUT AN ASCERTAINED L IABILITY. 6. THE CIT(A) OUGHT TO HAVE SUSTAINED THE ACTION OF THE ASSESSING OFFICER BRINGING THE PAYMENTS MADE TO TH E ASSESSEE TO TAX IN THE YEAR IN WHICH THE PROVISION WAS MADE BY THE COMPANY IN ITS BOOKS OF ACCOUNT. 14. THE LEARNED CIT-DEPARTMENTAL REPRESENTATIVE, JUSTIFYING THE STAND TAKEN BY THE ASSESSING OFFICER, SUBMITTED BEF ORE US THAT PROPER EXPLANATION WAS NOT FORTHCOMING FROM THE ASSESSEES, AS TO WHY THE BUILDER HAS CREATED THE PROVISION, IN THE YEAR UNDE R CONSIDERATION. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE IS NOTHING ON RECORD TO SHOW ON WHAT BASIS, THE AMOUNT WAS ARRIVE D AT FOR WHICH PROVISION WAS CREATED BY THE DEVELOPER. IT IS NOT KNOWN WHETHER IT WAS THE COST OF CONSTRUCTION TO THE BUILDER OR AMOUNT A GREED TO BE PAID TO THE ASSESSEES ON SALE OF FLATS. ACCORDING TO THE LEARN ED CIT-DEPARTMENTAL REPRESENTATIVE, EVEN IF THE POSSESSION HAS NOT BEEN PHYSICALLY HANDED OVER TO THE ASSESSEES, BUT IF THE BUILDER WAS HOLDI NG IT ON BEHALF OF THE ASSESSEES FOR SELLING IT, THE POSSESSION OF THE ASS ET CAN BE SAID TO HAVE BEEN HANDED OVER ON THE DATE OF COMPLETION OF THE P ROJECT. THE LEARNED DEPARTMENTAL REPRESENTATIVE, RELYING UPON THE LETTE RS DATED 8.11.2006 ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 9 AND 13.11.2006 WRITTEN BY THE ASSESSEE, SUBMITTED T HAT WHEN THE ASSESSEE HIMSELF HAS STATED IN THE LETTER THAT THE CONSTRUCTION CONTINUED UPTO ASSESSMENT YEAR 2005-06 AND EVEN THEREAFTER, A ND SO, IT CANNOT BE SAID THAT INCOME FROM CAPITAL GAIN ACCRUED IN THE A SSESSMENT YEAR 1999- 2000 WHEN THE DEVELOPMENT AGREEMENT WAS ENTERED UPO N. THE LEARNED CIT-DEPARTMENTAL REPRESENTATIVE RELYING UPON THE DE CISION OF THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH IN T HE CASE OF SMT. K. RADHIKA RENDERED IN ITA NO.208 TO 211 AND 328/HYD/2 011) CONTENDED THAT THOUGH THE DATE OF DEVELOPMENT AGREEMENT WAS R ELEVANT, THE BUILDER MADE A PROVISION, OUT OF WHICH PAYMENT WAS TO BE MA DE TO THE ASSESSEES/JOINT OWNERS, ONLY IN THE ASSESSMENT YEAR 2002-03. AS PER THE ORAL AGREEMENT BETWEEN THE BUILDER AND LANDLORDS, T HE BUILDER WAS TO IDENTIFY THE PROSPECTIVE BUYERS AND SELL THE FLATS FALLING TO THE RESPECTIVE SHARES OF THE LANDLORDS. THE LEARNED CIT-DEPARTMEN TAL REPRESENTATIVE SUBMITTED THAT WHEN THE TERMS OF THE CONTRACT HAVE NOT BEEN FULFILLED, IT CANNOT BE SAID THAT INCOME FROM CAPITAL GAIN HAS AC CRUED IN ASSESSMENT YEAR RELEVANT TO THE DATE OF DEVELOPMENT AGREEMENT. 15. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEES, JOINING ISSUE, SUBMITTED THAT AS PER THE TERMS OF T HE DEVELOPMENT AGREEMENT, THE DEVELOPER HAS BEEN GIVEN ABSOLUTE RI GHT TO MORTGAGE, HYPOTHECATE OR CREATE CHARGES OVER 67.50% AREA TO B E CONSTRUCTED, WHICH DEMONSTRATES THAT THERE IS A TRANSFER BY VIRT UE OF THIS CLAUSE ITSELF, BY THE LANDOWNERS TO THE DEVELOPER. IN FACT, A GEN ERAL POWER OF ATTORNEY HAS BEEN EXECUTED BY ALL THE CO-OWNERS IN FAVOUR OF THE DEVELOPER. ACCORDING TO THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEES, LAND HAS BEEN UNCONDITIONALLY TRANSFERRED TO THE DEVELOP ER IN TERMS OF THE AGREEMENT. THEREFORE, THE DATE OF ENTERING THE D EVELOPMENT AGREEMENT IS RELEVANT FOR THE PURPOSE OF ACCRUAL OF THE CAPIT AL GAINS. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE THROUGH W RITTEN SUBMISSIONS, FURTHER SUBMITTED THAT THE DECISION RENDERED BY THE INCOME-TAX APPELLATE ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 10 TRIBUNAL, HYDERABAD IN THE CASE OF K.RADHIKA IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, SINCE IN THAT CASE, THE DEVELO PMENT AGREEMENT HAS NOT BEEN ACTED UPON BY THE DEVELOPER. THE LEARNED AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT MERE PROVISIO N OF FUNDS MADE BY THE DEVELOPER CANNOT BE TAKEN INTO CONSIDERATION FO R ARRIVING AT THE CONCLUSION THAT THE TRANSFER TOOK PLACE IN THE YEAR IN WHICH THE PROVISION HAS BEEN MADE. THE LEARNED AUTHORISED REPRESENTAT IVE OF THE ASSESSEE SUBMITTED THAT IN CASE OF SMT.SHANTA VIDYASAGAR ANN AM DECIDED BY THE INCOME-TAX APPELLATE TRIBUNAL HYDERABAD BENCH, IN I TS ORDER DATED 9.6.2006 IN ITA NO.885/HYD/2003, THE DEPARTMENT ITS ELF HAS TAKEN A STAND THAT THE DATE OF ENTERING INTO DEVELOPMENT AG REEMENT IS RELEVANT FOR ACCRUAL OF INCOME FROM CAPITAL GAINS. THE DEPA RTMENT CANNOT BE PERMITTED TO CHANGE ITS STAND FROM TIME TO TIME. H E RELIED HEAVILY ON THE DECISION OF THE TRIBUNAL IN THE CASE OF DR. MAYA SH ENOY (SUPRA). 16. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED THE MATERIALS ON RECORD, PARTICULARLY THE DEVELOPMENT A GREEMENT ENTERED INTO BETWEEN THE ASSESSEES AND THE DEVELOPER. WE HAVE AL SO GONE THROUGH THE CITATIONS RELIED UPON AND ELABORATE WRITTEN SUB MISSIONS OF THE PARTIES. AFTER CUMULATIVE ANALYSIS OF ALL THE ASPECTS OF THE MATTER, WE FIND THE FACTS INVOLVED IN THE PRESENT APPEAL ARE QUITE IDEN TICAL WITH THE FACTS IN THE CASE OF DR.MAYA SHENOY (SUPRA). IN THAT CASE, THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH, CONSIDERING DI FFERENT CLAUSES OF THE AGREEMENT, WHICH ARE QUITE AKIN TO THE DEVELOPMENT AGREEMENT INVOLVED IN THE PRESENT CASES, HAS OBSERVED IN THE FOLLOWING MANNER- 10. LET US FIRST IDENTIFY THE ISSUES WHICH NE4ED O UR CONSIDERATION. THEY CAN BE LISTED AS FOLLOWS: A) DOES THE DEVELOPMENT AGREEMENT HAVE THE EFFECT OF T RANSFERRING THE LAND FROM THE ASSESSEE TO THE BUYER UNDER ANY OF THE CLAUSE S IN SEC.2(47) OF THE ACT? B) IF THE REPLY TO THE ABOVE QUESTION IS YES, THEN WHA T IS THE EFFECTIVE DATE OF TRANSFER FOR THE PURPOSE OF CAPITAL GAINS? ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 11 C) DO THE EVENTS STARTING FROM THE DATE OF EXECUTING T HE DEVELOPM ENT AGREEMENT UPTO THE DATE OF SALE OF FLATS BY THE AS SESSEE CONSTITUTE ONE SINGLE TRANSACTION, OR THEY ARE TWO SEPARATE TRANSACTIONS INVOLVING TRANSFER OF LAND AS ONE TRAN SACTION AND SALE OF FLATS AS THE OTHER? D) IF THERE ARE CAPITAL GAINS ACCRUING TO THE ASSESSEE IN ANY MANNER, THEN THE COMPUTATIONAL ASPECT OF THE GAINS. E) IS THE ASSESSEE ENTITLED TO DEDUCTION OF THE SUPERS TRUCTURE IN COMPUTING CAPITAL GAINS? F) IS THE ASSESSEE ENTITLED TO EXEMPTION U/S. 54F OF T HE ACT? EFFECT OF DEVELOPMENT AGREEMENT:- 11. FOR IMMEDIATE REFERENCE, WE REPRODUCE THE PROVI SIONS OF SEC.2(47) BELOW:- 2(47) TRANSFER, IN RELATION TO A CAPITAL ASSET, INCLUDES- (I) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSE T; OR (II) ) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN; OR (III) THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW; O R (IV) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNER THEREOF INTO, OR IS TREATED BY HIM AS, STOCK-IN-TRADE OF A BUSINESS CARRIED ON BY HIM, SUCH CONVERSION OR TREATMENT; OR (V) THE MATURITY OR REDEMPTION OF A ZERO COUPON BOND ; OR (VI) ANY TRANSACTION INVOLVING THE ALLOWING OF POSSESSIO N OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 ( 4 OF 1882); OR (VII) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBE R OF, OR ACQUIRING SHARES IN, A COOPERATIVE SOCIETY, COMP ANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREE MENT OR ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVE R) WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING T HE ENJOYMENT OF, ANY IMMOVABLE PROPERTY. EXPLANATION FOR THE PURPOSE OF SUBCLAUSES (V) AN D (VI), IMMOVABLE PROPERTY SHALL HAVE THE SAME MEANING AS IN CLAUSE (D) OF SECTION 269UA; THE FIRST ASPECT TO BE NOTED IS THAT THE TERM TRANSFER HAS BEEN DEFINED INCLUSIVELY AND NOT EXHAUSTIVELY. THUS, OVER AND AB OVE ITS NATURAL MEANING , THE TERM TRANSFER WOULD ALSO ENCOMPASS THE SITUATIONS MENTIONED IN SEC.2(47). THE FIRST CLAUSE SPEAKS OF SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET. UNDER THE T.P. ACT S ALE IS DEFINED AS A TRANSFER OF OWNERSHIP IN EXCHANGE FOR PRICE PAID OR PROM ISED OR PART-PAID OR PART-PROMISED. IT IS WELL ESTABLISHED THAT THOU GH PRICE IS NOT DEFINED IN THE TP ACT, IT IS USED IN THE SAME SENSE AS IN THE SALE OF GOODS ACT, 1930 AND MEANS MONEY CONSIDERATION FOR THE SA LE OF GOODS. THUS, THE PRESENCE OF M ONEY CONSIDERATION IS ESSENTIAL IN A SALE TRANSACTI ON. IN THE PRESENT CASE, THERE IS NO MONEY CONSIDERATIO N FLOWING FROM THE DEVELOPER TO THE ASSESSEE AND HENCE IT IS NOT A SAL E TRANSACTION. RELINQUISHMENT IS UNDERSTOOD TO HAVE TAKEN PLACE WH EN A PERSON GIVES UP, ABANDONS OR SURRENDERS HIS INTEREST. AFTER RELI NQUISHMENT , IT IS ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 12 OWNED BY SOME PERSON OTHER THAN THE ONE WHO RELINQU ISHES THE PROPERTY. IN THE PRESENT CASE, THE ASSESSEE HAS NE ITHER GIVEN UP, NOR ABANDONED NOR SURRENDERED THE PROPERTY. SHE HAS, IN FACT, EXCHANGED HER PRESENT PROPERTY FOR CONSIDERATION IN KIND WHICH IS THE NATURE OF 4-1/2 FLATS TO BE GIVEN TO HER BY THE DEVELOPER. THUS, I T IS A CASE OF EXCHANGE AS UNDERSTOOD IN CLAUSE (I) OF SEC. 2(47). HOWEVER , ONE OF THE ARGUMENTS OF THE LEARNED COUNSEL IS THAT BY TRANSFE RRING 55% OF THE LAND TO THE DEVELOPER, THE LATTER HAS BECOM E A CO-OWNER OF THE PROPERTY AND BY VIRTUE OF HIS CO-OWNERSHIP THE POSSESSION OF EAC H CO-OWNER EXTENDS TO THE WHOLE PROPERTY. IN OUR VIEW, THE ARGUM ENT IS QUITE SPACIOUS. THE SITUATION DESCRIBED BY THE LEARNED COUNSEL IS RELEV ANT WHEN THE WHOLE OF THE PROPERTY IS OWNED BY CO-OWNERS. IN THE PRESENT CASE, THE WHOLE OF THE PROPERTY WAS OWNED BY THE ASSESSEE AND OUT OF T HE WHOLE PROPERTY, SHE TRANSFERRED 55% OF THE LAND TO THE DEVELOPER. BY PARTING AWAY WITH A PART OF THE PROPERTY, THE TRANSFEREE DOES NOT BE COME A CO-OWNER BUT ACQUIRES INTEREST ONLY IN THE 55% OF THE LAND TRANS FERRED TO HIM. THIS IS MORE EVIDENT FROM CLAUSE 14 OF THE AGREEMENT WHICH WE REPRODUCE BELOW- 14. THE OWNER SHALL NOT PUT FORTH ANY INDEPENDEN T OR EXCLUSIVE CLAIM, RIGHT OR TITLE OVER THE LAND ON WH ICH THE SCHEDULE MENTIONED PREMISES IS CONSTRUCTED EXCEPT TO THE EXT ENT OF UNDIVIDED SHARE IN THE LAND RETAINED BY ALLOTTED TO THE OWNER.(SIC). FROM THE ABOVE MENTIONED CLAUSE IT IS MORE THAN CLE AR THAT ON THE 55% OF THE LAND, THE ASSESSEE HAS NO CLAIM WHATSOEVER. FURTHER CLAUSE MAKES IT CLEAR THAT SHE WILL HAVE RIGHT ONLY TO THE EXTE NT OF THE UNDIVIDED SHARE IN THE LAND PROPORTIONATE TO THE 45% OF THE BUILT U P AREA ALLOTTED TO HER. THIS IS THE POSITION THAT EMERGES WHEN CLAUSES 13 A ND 14 OF THE AGREEMENT ARE READ TOGETHER. THEREFORE, THE ARGUM ENT OF THE LEARNED COUNSEL ABOUT THE CO-EXTENSIVE POSSESSION OF BOTH O N THE ENTIRE LAND HOLDS NO WATER. 12. ANOTHER ARGUMENT OF THE LEARNED COUNSEL WAS THA T THE DEVELOPMENT AGREEMENT IS A JOINT VENTURE FOR IMPROVEMENT OF THE PROPERTY SO THAT THE FRUITS OF THE VENTURE CAN BE ENJOYED BY THE OWNERS. WELL, IT IS NEITHER THE CASE OF THE ASSESSEE NOR IS THERE ANYTHING ON RECOR D TO SHOW THAT THE PROFITS MADE ON SALE OF FLATS OTHER THAN THOSE ALLO TTED TO THE ASSESSEE WERE TO BE SHARED BY BOTH THE ASSESSEE AND THE DEVE LOPER. THE CONTENTION THAT THE ENJOYMENT TO THE ASSESSEE WOULD BE IN THE FORM OF ENHANCED VALUE IS QUITE HYPOTHETICAL AND NOT WORTHY OF ANY SERIOUS CONSIDERATION. WE FIRMLY BELIEVE THAT IT IS NOT A J OINT VENTURE AT ALL EVEN WHEN CONSIDERED IN ITS WIDEST POSSIBLE SENSE. WE AL SO DO NOT AGREE WITH THE ARGUMENT THAT THE ENJOYMENT OF THE DEVELOPER IS ONLY IN THE FORM OF PROFITS THAT WILL ARISE TO HIM ON THE COMPLETION OF THE PROJECT. THE MOMENT THE DEVELOPER GOT THE EXCLUSIVE RIGHT TO EXP LOIT THE PROPERTY, HIS ENJOYMENT STARTS. IN THIS CONNECTION, WE MAY ADVANT AGEOUSLY REFER TO THE DECISION OF THE SUPREME COURT IN THE CASE OF CI T VS. PODAR CEMENT (P) LTD. (1997) 141 CTR (SC) 67 : (1997) 226 ITR 62 5 (SC). WE ARE CONSCIOUS OF THE FACT THAT IN THAT CASE, THE COURT WAS CONSIDERING THE CONCEPT OF 'OWNERSHIP' IN THE CONTEXT OF S. 22 OF T HE ACT. HOWEVER, THE PRINCIPLES ARE EQUALLY RELEVANT IN THE CONTEXT OF C APITAL GAINS ALSO AND MORE SO, WHEN WE ARE DEALING WITH THE PROVISIONS OF THE SAME LEGISLATION. AT P. 640 OF 226 ITR, THE COURT MADE THE FOLLOWING ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 13 OBSERVATIONS : THE FULL RIGHTS OF AN OWNER AS NOW R ECOGNISED ARE : (A) THE POWER OF ENJOYMENT (E.G., THE DETERMINATION OF THE USE TO WHICH THE RES IS TO BE PUT, THE POWER TO DEAL WITH PRODUCE AS HE PLEASES, THE POWER TO DESTROY); (B) POSSESSION WHICH INCLUDES THE RIGH T TO EXCLUDE OTHERS; (C) POWER TO ALIENATE INTER VIVOS, OR TO CHARGE AS SECURITY; (D) POWER TO LEAVE THE RES BY WILL.' THE COURT ADDED THAT ONE OF THE MOST IMPORTANT OF THESE POWERS IS THE RIGHT TO EXCLUDE OTHERS. THE PR OPERTY RIGHT IS ESSENTIALLY A GUARANTEE OF THE EXCLUSION OF OTHER P ERSONS FROM THE USE OR HANDLING OF THE THING. CLAUSE 12 OF THE AGREEMENT P ROVIDES THAT THE DEVELOPER SHALL ALONG WITH THE STRUCTURES ALSO SELL , TRANSFER, CONVEY, GIFT OR OTHERWISE ALIENATE TO THIRD PARTIES THE UNDIVIDE D SHARE OF THE LAND ON WHICH THE BUILDING STANDS. THE ASSESSEE IS NOT GIVE N SUCH RIGHT, LEAVE ASIDE ANYBODY ELSE. EVEN FURTHER CONSTRUCTION CAN B E MADE BY THE DEVELOPER ONLY AND BY NO ONE ELSE. THIS IS THE INFE RENCE THAT CAN BE DRAWN FROM CL. 20 OF THE AGREEMENT. THE POSITION O F THE ASSESSEE IS NO MORE THAN ANY OTHER FLAT OWNER AND HAS NOTHING MORE THAN THE OWNERSHIP OF THE FLATS ALONG WITH THE PROPORTIONATE SHARE OF THE LAND. THUS, WHAT THE ASSESSEE IS LEFT WITH IS ONLY THE HU SK OF THE LEGAL TITLE AND NOTHING MORE. ON THE OTHER HAND, THE DEVELOPER HAS ALL THE RIGHTS OF AN OWNER IN A PRACTICAL SENSE. ENJOYMENT AS AN OWNER O NLY IN A PRACTICAL SENSE CAN BE ATTRIBUTED TO THE TERM 'OWNER'. THIS W AS THE PRINCIPLE LAID DOWN WAY BACK IN 1971 BY THE SUPREME COURT IN R.B. JODHA MAL KUTHIALA VS. CIT (1971) 82 ITR 570 (SC) AND APPLIED IN THE CASE OF PODAR CEMENT (P) LTD. (SUPRA). IT IS IMMATERIAL WHETHER THE DEVE LOPER CAN SELL THE LAND OR NOT, BUT HE CERTAINLY HAS THE RIGHT TO EXPLOIT I T. IF THE DEVELOPER DOES NOT BUILD MORE THAN 4-1/2 FLATS, THE ASSESSEE HAS N O RECOURSE AND CANNOT COMPEL THE DEVELOPER TO BUILD MORE. THERE IS NO EMB ARGO ON THE DEVELOPER TO MAKE USE OF THE LAND FOR ANY OTHER PUR POSE BARRING GIVING 4-1/2 FLATS TO THE ASSESSEE. ANOTHER ARGUMENT OF TH E LEARNED COUNSEL WAS THAT THE PROPERTY WAS HANDED OVER ONLY TO ENABL E THE DEVELOPER TO CARRY OUT THE DEVELOPMENTAL ACTIVITY AND IS NOT IN PART-PERFORMANCE AS ENVISAGED UNDER S. 53A OF THE TP ACT. THE AGREEMENT IS CERTAINLY FOR THE DEVELOPMENT OF THE LAND AND PURSUANT TO THIS AGREEM ENT, THE ASSESSEE HAS HANDED OVER THE POSSESSION TO THE DEVELOPER. IT IS IN CONSIDERATION OF THIS HANDING OVER OF THE LAND THAT THE ASSESSEE HAS BEEN PROMISED TO BE GIVEN 45 PER CENT OF THE CONSTRUCTED AREA. CLAUSE 1 4 OF THE AGREEMENT DEBARS THE ASSESSEE FROM PUTTING FORTH ANY INDEPEND ENT OR EXCLUSIVE CLAIM, RIGHT OR TITLE OVER THE LAND ON WHICH THE PR EMISES IS CONSTRUCTED. THUS, IF IN VIOLATION OF THIS CLAUSE, THE ASSESSEE PUTS UP A CLAIM ON THE TITLE OF THE LAND, THE DEVELOPER SHALL HAVE A SHIEL D UNDER S. 53A OF THE TP ACT. IT IS THE VERY PRINCIPLE OF S. 53A TO PROVIDE A SHIELD OF PROTECTION TO THE TRANSFEREE TO REMAIN IN POSSESSION AGAINST THE ORIGINAL OWNER WHO HAS AGREED TO TRANSFER THE LAND. AS PER MULLAS TRA NSFER OF PROPERTY ACT (2005, 10TH EDN.), THE FOLLOWING POSTULATES ARE SIN E QUA NON FOR BASING A CLAIM ON S. 53A OF THE TP ACT : (A) THERE MUST BE A CONTRACT TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY. IN THE PR ESENT CASE, THERE IS A CONTRACT TO HANDOVER POSSESSION OF IMMOVABLE PROPE RTY FOR CONSIDERATION OF 4-1/2 FLATS. (B) THE CONTRACT MUST BE IN WRITING, SIGNED BY THE TRANSFEROR, OR BY SOMEONE ON HIS BEHALF. NON E OF THESE FACTS IS IN DISPUTE AND THE CONDITIONS ARE FULFILLED. (C) THE W RITING MUST BE IN SUCH WORDS FROM WHICH THE TERMS NECESSARY TO CONSTRUE TH E TRANSFER CAN BE ASCERTAINED. IN THE PRESENT CASE, CL. 14 IS SO WORD ED THAT THE ASSESSEE HAS NO CLAIM OVER THE LAND ONCE IT IS HANDED OVER T O THE DEVELOPER. (D) THE TRANSFEREE MUST IN PART PERFORMANCE OF THE CONT RACT TAKE POSSESSION OF THE PROPERTY, OR OF ANY PART THEREOF. THE FACT T HAT THE DEVELOPER HAS TAKEN POSSESSION IS NOT IN DISPUTE. (E) THE TRANSFE REE MUST HAVE DONE ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 14 SOME ACT IN FURTHERANCE OF THE CONTRACT. IN THE PRE SENT CASE, THE DEVELOPER HAS CONSTRUCTED THE FLATS AS STIPULATED I N THE AGREEMENT. THUS, HE HAS PERFORMED HIS PART OF THE CONTRACT. (F) THE TRANSFEREE MUST HAVE PERFORMED OR BE WILLING TO PERFORM HIS PART OF THE CONTRACT. WE HAVE ALREADY MENTIONED AT (E) ABOVE, THAT THE DEVELOPER HAD ALREADY PERFORMED HIS PART OF THE AGREEMENT AND HENCE HE IS ENTITLED TO THE SHIELD UNDER S. 53A OF THE TP ACT IF THE ASSESSEE R AISES ANY CLAIM OVER THE LAND. THEREFORE, WE SEE NO FORCE IN THE ARGUMEN T OF THE LEARNED COUNSEL THAT THE HANDING OVER OF THE POSSESSION IS NOT IN PURSUANCE OF PART PERFORMANCE OF THE CONTRACT. AS IS WELL KNOWN , OWNERSHIP CONSISTS OF A BUNDLE OF RIGHTS, THE VARIOUS RIGHTS AND INTER ESTS MAY BE VESTED IN DIFFERENT PERSONS, E.G., A MORTGAGOR AND A MORTGAGE E, A LESSOR AND A LESSEE AND SO ON. MULLA IN HIS COMMENTARY STATES TH AT ABSOLUTE OWNERSHIP IS AN AGGREGATE OF COMPONENT RIGHTS SUCH AS THE RIGHT OF POSSESSION, THE RIGHT OF ENJOYING THE USUFRUCT OF T HE LAND, AND SO ON. THESE SUBORDINATE RIGHTS, THE AGGREGATE OF WHICH MA KES UP ABSOLUTE OWNERSHIP, ARE REFERRED IN THE TP ACT AS INTERESTS IN PROPERTY. SEC. 5 OF THE TP ACT CONTEMPLATES THAT A TRANSFER OF PROPERTY IS EITHER A TRANSFER OF ABSOLUTE OWNERSHIP, OR A TRANSFER OF ONE OR MORE OF THESE SUBORDINATE RIGHTS. THUS, IF THESE PRINCIPLES ARE APPLIED TO TH E PRESENT CASE, POSSESSION OF THE LAND BEING ONE OF THE INTERESTS I N PROPERTY HAS BEEN TRANSFERRED TO THE DEVELOPER WHO ALSO WOULD BE ENJO YING THE USUFRUCT OF THE LAND. 13. ANOTHER ARGUMENT RAISED BY THE LEARNED COUNSEL IS THAT THERE IS NO CONSIDERATION FLOWING TO THE ASSESSEE FOR HANDING O VER THE POSSESSION AND HENCE THERE IS NO TRANSFER. HE HAS ALSO STATED THAT THE 4-1/2 FLATS RECEIVABLE BY THE ASSESSEE CANNOT BE CONSIDERED AS CONSIDERATIONS. SO FAR AS THE NECESSITY OF CONSIDERATION IS CONCERNED , IT IS RELEVANT ONLY FOR THE COMPUTATION OF CAPITAL GAINS UNDER THE IT ACT. IF THERE IS NO CONSIDERATION, CAPITAL GAINS WOULD NOT BE COMPUTABL E AND THE TRANSACTION WILL BE DEALT WITH IN SOME OTHER MANNER IN ACCORDAN CE WITH LAW. IN THE PRESENT DISCUSSION, WE ARE CONCERNED ONLY WITH THE ASPECT WHETHER THERE IS TRANSFER OR NOT. IT IS THE TRANSFER OF PROPERTY WHICH IS THE TAXABLE EVENT UNDER THE ACT AND THEN TO COMPUTE THE GAINS, CONSID ERATION BECOMES RELEVANT. SEC. 5 OF THE TP ACT SPEAKS ONLY OF TRANS FER AND NOT NECESSARILY TRANSFER FOR CONSIDERATION ONLY. IN THE EARLIER PAR AS WE HAVE ALREADY SEEN AS TO HOW TRANSFER HAS BEEN EFFECTED BY THE DEVELOP MENT AGREEMENT AND ALSO THAT HOW THE SHIELD OF S. 53A OF THE TP ACT IS AVAILABLE TO THE DEVELOPER. IF THE SHIELD OF S. 53A IS AVAILABLE TO THE DEVELOPER, IT OBVIOUSLY MEANS AND WE HAVE ALSO HELD IT SO, THAT H ANDING OVER OF THE POSSESSION IS PURSUANT TO THE TRANSFER CONTEMPLATED UNDER THE TP ACT AND HENCE UNDER CL. (V) OF S. 2(47) OF THE IT ACT A LSO. THUS, EVEN FOR A MOMENT, IT IS AGREED WITHOUT ACCEPTING IT THAT THER E CANNOT BE A TRANSFER WITHOUT CONSIDERATION, THEN THE SAID ARGUMENT WOULD BE RUNNING CONTRARY TO THE PRINCIPLES OF THE TP ACT. NOW, WE C OME TO THE CONSIDERATION PART. IF THE TRANSFER IS BY SALE, THE N OBVIOUSLY, THE CONSIDERATION WILL HAVE TO BE MONEY ONLY. HOWEVER, IN THE PRESENT CASE, WE HAVE ALREADY DISCUSSED EARLIER THAT THIS IS NOT A SALE TRANSACTION AS MONEY IS NOT THE CONSIDERATION BUT SOME OTHER VALUA BLE CONSIDERATION IS PASSING TO THE ASSESSEE IN THE FORM OF 4-1/2 FLATS. THE ARGUMENT OF THE LEARNED COUNSEL IS THAT THE ASSESSEE HAS RECEIVED O NLY THE RIGHT TO RECEIVE PROPERTY AND NOT THE ACTUAL CONSIDERATION I TSELF IN THE FORM OF THE PROPERTY. IF THE TRANSFER IS BY WAY OF SALE, S. 54 OF THE TP ACT POSTULATES THAT PAYMENT OF PRICE IS NOT NECESSARILY A SINE QUA NON TO THE COMPLETION OF THE SALE. FURTHER, S. 53A OF THE TP ACT DOES NOT DEBAR A PERSON FROM ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 15 TAKING ADVANTAGE OF THAT SECTION MERELY BECAUSE H E HAS NOT PAID THE AMOUNT IN FULL. SEC. 118 OF THE TP ACT PROVIDES TH AT A TRANSFER OF PROPERTY IN COMPLETION OF AN EXCHANGE CAN BE MADE O NLY IN MANNER PROVIDED FOR THE TRANSFER OF SUCH PROPERTY BY SALE. SEC. 120 OF THE TP ACT PROVIDES THAT EACH PARTY HAS THE RIGHTS AND IS SUBJ ECT TO THE LIABILITIES OF A SELLER AS TO THAT WHICH HE GIVES, AND HAS THE RIG HTS AND IS SUBJECT TO THE LIABILITIES OF A BUYER AS TO THAT WHICH HE TAKES. I N NUTSHELL, WHAT S. 118 R/W S. 120 OF THE TP ACT CONTEMPLATES IS THAT ALL T HE RULES THAT APPLY TO A TRANSFER BY SALE, EQUALLY APPLY TO A TRANSFER BY WA Y OF EXCHANGE INSOFAR AS THEY ARE APPLICABLE. THEREFORE, THE TRANSFER IN THE PRESENT CASE IS FOR CONSIDERATION AND IT IS IMMATERIAL THAT THE CONSIDE RATION MAY BE RECEIVED IN FUTURE. THE ARGUMENT OF THE LEARNED COUNSEL HAS NO FORCE INSOFAR AS THAT IN THE CASE OF JUGALKISHORE VS. RAW COTTON COM PANY AIR 1955 SC 376, THE SUPREME COURT HELD THAT THE WORDS 'IN PRES ENT OR IN FUTURE' IN S. 5 OF THE TP ACT QUALIFY THE WORD 'CONVEYS' AND NOT THE WORD 'PROPERTY'. IN OTHER WORDS, A TRANSFER OF PROPERTY NOT IN EXIST ENCE OPERATES AS A CONTRACT TO BE PERFORMED IN FUTURE, WHICH IS SPECIF ICALLY ENFORCEABLE AS SOON AS THE PROPERTY COMES INTO EXISTENCE. THUS, TH IS ARGUMENT OF THE LEARNED COUNSEL ALSO FAILS. THEREFORE, IN THE LIGHT OF THE FOREGOING DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT T HE DEVELOPMENT AGREEMENT IN THE PRESENT CASE HAS THE EFFECT OF TRA NSFER AS CONTEMPLATED IN S. 2(47) OF THE ACT. EFFECTIVE DATE OF TRANSFER : 14. HAVING HELD THAT THE EXECUTION OF THE DEVELOPM ENT AGREEMENT RESULTED INTO THE TRANSFER OF LAND FROM THE ASSESSE E TO THE DEVELOPER, THE NEXT ISSUE WHICH FALLS FOR CONSIDERATION IS AS TO W HAT IS THE EFFECTIVE DATE OF TRANSFER. WELL, THIS ISSUE SHOULD NOT DETAIN US FOR TOO LONG A TIME. THE MOMENT THE TRANSFEREE GETS THE RIGHT TO MAKE USE OF THE LAND OR TO ENJOY ITS USUFRUCTS, THE TRANSFER IS COMPLETE. EARLIER, W E HAVE NOTED THAT PAYMENT OF CONSIDERATION IS NOT NECESSARILY A SINE QUA NON TO THE COMPLETION OF THE TRANSACTION. UNDER THE TP ACT, IF THE INTENTION IS THAT PROPERTY SHOULD PASS ON REGISTRATION, THE SALE IS C OMPLETE AS SOON AS THE DEED IS REGISTERED IRRESPECTIVE OF WHETHER THE PRIC E HAS BEEN PAID. HOWEVER, UNDER THE IT ACT, AS PER S. 2(47), ANY TRA NSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERT Y IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN S. 53A OF THE TP ACT CONSTITUTES TRANSFER. WE HAVE NOTED EARLIER THA T POSSESSION IS ONE OF THE IMPORTANT SUBORDINATE INTERESTS AMONGST THE SEV ERAL COMPONENTS THAT GO TO MAKE UP ABSOLUTE RIGHT. THIS IS IN CONSO NANCE WITH S. 5 OF THE TP ACT AS ALSO IN CONSONANCE WITH THE PRINCIPLES EN UNCIATED IN THE JUDGMENT IN THE CASE OF PODAR CEMENT (P) LTD. (SUPR A). IN THE PRESENT CASE, THOUGH THE AGREEMENT WAS ENTERED INTO IN MAR CH, 1995, THE ASSESSEE CONTINUED TO RESIDE IN THE OLD STRUCTURE F OR QUITE SOMETIME THEREAFTER. IN FACT, THE RENT EARNED BY HER ON THE PART OF THE STRUCTURE WHICH WAS LET OUT BY HER, HAS BEEN ACCOUNTED FOR TI LL JUNE, 1998. IT IS ON RECORD THAT THE OLD STRUCTURE WAS DEMOLISHED BY THE ASSESSEE BY 15TH DEC., 1999 AND THEN THE POSSESSION OF THE VACANT LA ND WAS HANDED OVER TO THE DEVELOPER. TILL THIS DATE, THE AGREEMENT WAS MERELY AN EXECUTORY AGREEMENT AND NOT ACTED UPON. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT EITHER PARTY HAD TAKEN SOME STEP TOWARDS THE I MPLEMENTATION OF THE AGREEMENT. THUS, IT CAN BE SAID THAT THE DEVELOPER GOT THE POSSESSION OF THE LAND SOMETIME IN DECEMBER, 1999. THIS IS THE FI RST STEP TOWARDS THE IMPLEMENTATION OF THE AGREEMENT ENTERED INTO IN MAR CH, 1995. MORE IMPORTANTLY, THE POSSESSION WAS HANDED OVER WITH AL L THE RIGHTS AND ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 16 INTERESTS IN THE PROPERTY BARRING THE ASSESSEES SH ARE IN LAND PROPORTIONATE TO HER 45 PER CENT SHARE IN THE CONST RUCTED PROPERTY. QUA THE ENTIRE PIECE OF LAND, THE ASSESSEE WAS LEFT WIT H NOTHING BUT THE HUSK OF TITLE AND HENCE IT WAS A TRANSFER AS PER S. 2(47 ) OF THE ACT. IT CAN BE SAID THAT THOUGH THE AGREEMENT WAS ENTERED INTO IN 1995, IT DID NOT GIVE RISE TO ANY RIGHTS TO EITHER PARTY AS THE IMPLEMENT ATION OF THE AGREEMENT DID NOT START TILL AS LATE AS DECEMBER, 1999. EARLI ER WE HAVE NOTED THAT THE INTENTION OF THE PARTIES, AS IT EMANATES FROM T HE AGREEMENT, IS TO EFFECT TRANSFER OF LAND FROM THE A SSESSEE TO THE DEVELOPER AND ON HANDING OVER THE POSSESSION, THE A SSESSEE ACTUALLY GAVE SHAPE TO THE INTENTION. THIS HANDING OVER OF T HE POSSESSION WAS TOWARDS THE PART PERFORMANCE OF THE AGREEMENT. THER EFORE, AS PER CL. (V) OF S. 2(47), TRANSFER TOOK PLACE IN DECEMBER, 1999, THE EFFECTIVE ASSESSMENT YEAR BEING 2000-01. AS IS EVIDENT FROM THE AFORESAID FINDING ARRIVED AT BY THE COORDINATE BENCH OF THE TRIBUNAL, THE TRIBUNAL HAS HELD THAT I N CASES WHERE PROPERTY ARE GIVEN FOR DEVELOPMENT IN EXCHANGE OF FLATS, THE N, THE TRANSFER TAKES PLACE ON THE DATE OF EXECUTION OF DEVELOPMENT AGREE MENT. IN THE PRESENT CASE, THE DEVELOPMENT AGREEMENT WAS ENTERED INTO BE TWEEN THE ASSESSEES WITH THE DEVELOPER, UNDISPUTEDLY, IN THE FINANCIAL YEAR 1998-99 AND THE DEVELOPER ALSO HAS TAKEN THE POSSESSION OF THE LAND AND STARTED PERFORMING HIS PART OF THE CONTRACT. SUCH A TRANSAC TION THEREFORE, IS WITHIN THE DEFINITION OF TRANSFER AS ENVISAGED IN S.2(47 )(V) OF THE ACT. THE HONBLE BOMBAY HIGH COURT, WHILE CONSIDERING SIMILA R FACTS IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA V/S. CIT (260 ITR 491 ) HAS OBSERVED, VIDE PAGES 500-501 OF THE REPORTS(260 ITR), IN THE FOLLOWING MANNER- .IN THIS MATTER, THE AGREEMENT IN QUESTION IS A D EVELOPMENT AGREEMENT. SUCH DEVELOPMENT AGREEMENTS DO NOT CONST ITUTE TRANSFER IN GENERAL LAW. THEY ARE SPREAD OVER A PER IOD OF TIME. THEY CONTEMPLATE VARIOUS STAGES. THE BOMBAY HIGH CO URT IN VARIOUS JUDGMENTS HAS TAKEN THE VIEW IN SEVERAL MAT TERS THAT THE OBJECT OF ENTERING INTO A DEVELOPMENT AGREEMENT IS TO ENABLE A PROFESSIONAL BUILDER/CONTRACTOR TO MAKE PROFITS BY COMPLETING THE BUILDING AND SELLING THE FLATS AT A PROFIT. THAT TH E AIM OF THESE PROFESSIONAL CONTRACTORS WAS ONLY TO MAKE PROFITS B Y COMPLETING THE BUILDING AND, THEREFORE, NO INTEREST IN THE LAN D STANDS CREATED IN THEIR FAVOUR UNDER SUCH AGREEMENTS. THAT SUCH AG REEMENTS ARE ONLY A MODE OF REMUNERATING THE BUILDER FOR HIS SER VICES OF CONSTRUCTING THE BUILDING (SEE GURUDEV DEVELOPERS V . KURLA KONKAN NIWAS CO-OPERATIVE HOUSING SOCIETY [2000] 3 MAH LJ 131). IT IS PRECISELY FOR THIS REASON THAT THE LEGI SLATURE HAS INTRODUCED SECTION 2(47)(V) READ WITH SECTION 45 WH ICH INDICATES ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 17 THAT CAPITAL GAINS IS TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO EVEN IF THE TRANSFER OF IMMOVABLE PROPERTY IS NOT EFFECTIVE OR COMPLETE UNDER THE GENERAL LAW. IN THI S CASE THAT TEST HAS NOT BEEN APPLIED BY THE DEPARTMENT. .. BEFORE US,.. IN THIS CASE, THE AGREEMENT IS A DEVELOPMENT AGREEMENT AND IN OUR VIEW, THE TEST TO BE APPLIED TO DECIDE THE YEAR OF CHARGEABILITY IS THE YEAR IN WHI CH THE TRANSACTION WAS ENTERED INTO. WE HAVE TAKEN THIS VI EW FOR THE REASON THAT THE DEVELOPMENT AGREEMENT DOES NOT TRAN SFER THE INTEREST IN THE PROPERTY TO THE DEVELOPER IN GENERA L LAW AND, THEREFORE, SECTION 2(47)(V) HAS BEEN ENACTED AND IN SUCH CASES, EVEN ENTERING INTO SUCH A CONTRACT COULD AMOUNT TO TRANSFER FROM THE DATE OF THE AGREEMENT ITSELF. WE HAVE TAKEN THI S VIEW FOR A PRECISE REASON. FIRSTLY, WE FIND IN NUMEROUS MATTER S WHERE THE ASSESSING OFFICER AND THE DEPARTMENT GENERALLY PROC EED ON THE BASIS OF SUBSTANTIAL COMPLIANCE OF THE CONTRACT. FO R EXAMPLE, IN THIS VERY CASE, THE DEPARTMENT HAS CONTENDED THAT B ECAUSE OF SUBSTANTIAL COMPLIANCE OF THE CONTRACT DURING THE F INANCIAL YEAR ENDING MARCH 31, 1996, THE TRANSFER IS DEEMED TO HA VE TAKEN PLACE IN THAT YEAR. SUCH INTERPRETATION WOULD RESULT IN A NOMALY BECAUSE WHAT IS SUBSTANTIAL COMPLIANCE WOULD DIFFER FROM OF FICER TO OFFICER. THEREFORE, IF ON A BARE READING OF A CONTRACT IN IT S ENTIRETY, AN ASSESSING OFFICER COMES TO THE CONCLUSION THAT IN T HE GUISE OF THE AGREEMENT FOR SALE, A DEVELOPMENT AGREEMENT IS CONT EMPLATED, UNDER WHICH THE DEVELOPER APPLIES FOR PERMISSIONS F ROM VARIOUS AUTHORITIES, EITHER UNDER POWER OF ATTORNEY OR OTHE RWISE AND IN THE NAME OF THE ASSESSEE, THEN THE ASSESSING OFFICER IS ENTITLED TO TAKE THE DATE OF THE CONTRACT AS THE DATE OF TRANSFER IN VIEW OF SECTION 2(47)(V). CONSIDERED IN THE LIGHT OF THE AFORESAID JUDICIAL P RONOUNCEMENTS, THE CIT(A) WAS RIGHT IN HOLDING THAT THE CAPITAL GAINS ACCRUED IN THE ASSESSMENT YEAR 1999-2000, BY FOLLOWING THE ORDER O F THIS TRIBUNAL IN THE CASE OF DR. MAYA SHENOY (SUPRA). THE ORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH IN THE CASE OF SMT. K.RADHIKA (SUPRA) IS FACTUALLY DISTINGUISHABLE, SINCE THE ITA T IN THAT CASE, AFTER CONSIDERING THE FACT THAT THE DEVELOPER IS NOT WILL ING TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT IN THE ASSESSMENT Y EAR IN WHICH THE AGREEMENT WAS ENTERED INTO, HELD THAT THE DATE OF A GREEMENT CEASES TO BE RELEVANT. IN THE PRESENT CASE, THERE HAVE BEEN NO SUCH ISSUES OF NON- COMPLIANCE WITH THE DEVELOPMENT AGREEMENT, AND HENC E, THE SAID DECISION OF THE TRIBUNAL IN THE CASE OF SMT. K.RADH IKA (SUPRA), CANNOT APPLY TO THE FACTS OF THE PRESENT CASE. THE FACT T HAT THE DECISION OF THE ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 18 TRIBUNAL IN THE CASE OF DR. MAYA SHENOY (SUPRA), HA VING NOT BEEN ACCEPTED BY THE REVENUE AND APPEAL THERE AGAINST HA VING BEEN FILED BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT, DOES NOT MAKE ANY DIFFERENCE EITHER AS TO THE BINDING NATURE OF THE S AID DECISION OF THE TRIBUNAL OR ITS VALIDITY AS A PRECEDENT, SINCE THE DECISION OF THE TRIBUNAL IN THAT CASE HAS NOT BEEN STAYED BY THE HONBLE HIGH C OURT. IN THE AFORESAID VIEW OF THE MATTER, WE UPHOLD THE IMPUGNE D ORDERS OF THE CIT(A). THIS VIEW IS CEMENTED BY THE FACT THAT THE REVENUE HAS OPINED THAT DATE OF DEVELOPMENT AGREEMENT IS RELEVANT IN M ATTERS OF THIS KIND, IN THE CASE OF SMT. SHANTA VIDYASAGAR ANNAM (SUPRA), W HEREIN IDENTICAL ISSUE HAS COME UP FOR CONSIDERATION BEFORE THIS TRI BUNAL. HAVING COME TO THE CONCLUSION THAT THAT CAPITAL GAIN IF ANY, IS TA XABLE IN THE ASSESSMENT YEAR 1999-2000, WHEN THE DEVELOPMENT AGREEMENT WAS ENTERED UPON, WE THINK IT REDUNDANT TO DELIBERATE UPON THE QUANTI FICATION ASPECT, SINCE THE SAME HAS NOT BEEN RAISED BEFORE US. IN THIS VI EW OF THE MATTER, THE GROUNDS OF THE REVENUE IN THESE APPEALS ARE REJECTE D. 17. IN THE RESULT, ALL THE TWENTY APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30.4.2012 SD/- SD/- (D.KARUNAKARA R AO ) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- APRIL, 2012 COPY FORWARDED TO: 1. SHRI M.SAMBASIVA RAO, G - 11, PLOT NO.113, S.R. APARTMENTS, RAVINDRA NAGAR, HABSIGUDA, HYDERABAD 2. S MT. J.ARUNDHATI, 2 - 157, UPPAL, HYDERABAD 3. SMT. M.INDIRA, 2 - 157, UPPAL, HYDERABAD 4. SHRI GONE PRABHAKAR REDDY, 2-157,UPPAL HYDERABAD ITA NO.625/HYD/10 & ORS SHRI M.SAMBASIVA RAO, HYDERABAD AND OTHERS 19 5. SHRI J.KIRAN KUMAR, 2 - 157, UPPAL, HYDERABAD 6. SHRI J.SUDHAKAR, 2 - 157, UPPAL, HYDERABAD 7. SHRI J.SRINIVASA RAO, 2 - 157, UPPAL, H YDERABAD 8. SHRI J.GYANESHWAR, 2-157, UPPAL, HYDERABAD 9. INCOME TAX OFFICER, WRD - 11(2), HYDERABAD 10. COMMISSIONER OF INCOME - TAX(APPEALS) VI HYDERABAD 11. COMMISSIONER OF INCOME-TAX V, HYDERABAD 12. LEARNED DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.