ITO, Chandigarh V. Smt. Mukhtiar Kaur, Chandigarh

ITA 682/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8393 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 02-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 682/CHD/2016 ASSESSMENT YEAR: 2007-08 THE ITO, VS SMT. MUKHTIAR KAUR, WARD 1(3), MLA FLAT NO. 1, CHANDIGARH. OPPOSITE PUNJAB BHAWAN, SECTOR-3, CHANDIGARH. PAN: AYRPK6388A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH RESPONDENT BY : NONE DATE OF HEARING : 10.01.2017 DATE OF PRONOUNCEMENT : 12.01.2017 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-I CHANDIGARH DATED 15.03.2016 FOR ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS : 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSES SEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS OF RS. 2 1,52,82,465/- MADE BY THE A.O. UNDER THE HEAD LONG TERM CAPITAL GAIN WHEN THE ASSESSEE, HAD NOT FULLY DISCLOSED THE ACCRUED CAPITAL GAIN AND THE APPEAL AGAINST THE CASE RELIED BY THE LD-CIT (A) WAS PENDING BEFORE THE HON'BLE SUPREME COURT AS PROPOSE D BY AO . 2. BRIEF FACTS OF THE CASE ARE THAT A HOUSING SOCIE TY NAMED AS THE PUNJABI COOPERATIVE HOUSE BUILDING SOCIETY LTD., MOHALI CONSISTING OF 95 MEMBERS WAS FORMED, WHICH WAS OWNER OF 21.2 ACRES OF LAND AT VI LLAGE KANSAL, DISTRICT MOHALI. THIS SOCIETY ENTERED INTO A TRIPARTITE JOINT DEVELOPMENT AGREEMENT ON 25.02.200 7 WITH M/S HASH BUILDERS PVT. LTD., CHANDIGARH AND M/ S TATA HOUSING DEVELOPMENT COMPANY LTD., MUMBAI BY VIRTUE OF WHICH THE SOCIETY WOULD TRANSFER ITS LAND FOR DEVELOPMENT IN LIEU OF MONETARY CONSIDERATION AND A LSO CONSIDERATION IN KIND TO THE MEMBERS OF THE SOCIETY . THE ASSESSEE WAS ALSO MEMBER OF THE SAID SOCIETY OWNING 500 SQ.YDS. LAND. TOTAL CONSIDERATION WAS SETTLED AT RS. 82,50,000/- PLUS ALLOTMENT OF ONE FL AT OF 2250 SQ.FT. TO THE ASSESSEE. IN VIEW OF THE ABOVE REASONS, PROCEEDINGS UNDER SECTION 147/148 WERE INITIATED AND ASSESSEE FILED RETURN OF INCOME DECLA RING INCOME OF RS. 31,33,562/- WHICH INCLUDES CAPITAL GA IN OF RS. 30,92,535/-. ON PERUSAL OF THE ASSESSMENT ORDE R, IT WAS FOUND THAT ASSESSING OFFICER HAS MADE ADDITION ON ACCOUNT OF CAPITAL GAIN RELYING UPON THE DECISION O F ITAT CHANDIGARH BENCH IN THE CASE OF CHARANJIT ATWAL IN ITA 448/2011. THE ASSESSING OFFICER, ACCORDINGLY, COMPUTED THE CAPITAL GAIN AT RS. 1,83,25,000/- BY 3 TAKING INTO ACCOUNT THE CONSIDERATION RECEIVABLE IN CASH AT RS. 82,50,000/- AND VALUE OF ONE FLAT OF 2250 SQ .FT. @ RS. 4500/- PER SQ.FT. FOR RS. 1,10,25,000/-. THE ASSESSEE HAS DISCLOSED CAPITAL GAIN OF RS. 30,92,53 5/- IN THE RETURN OF INCOME AS THE ASSESSEE HAS RECEIVE D RS. 33 LACS ONLY IN PURSUANCE OF THE SAID AGREEMENT. 3. THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) THAT IN THE CASE OF SHRI CHARANJIT ATWAL, THE APPEA L HAS BEEN DECIDED BY HON'BLE PUNJAB & HARYANA HIGH COURT IN ITA 200 OF 2013 VIDE ORDER DATED 22.07.2015 IN FAVOUR OF THE ASSESSEE. THE LD. CIT(APPEALS) REPRO DUCED THE CONCLUSION OF THIS JUDGEMENT IN THE IMPUGNED OR DER AND FOLLOWING THE DECISION OF HON'BLE PUNJAB & HARY ANA HIGH COURT, DELETED THE ADDITION OF RS. 1,52,82,465 /- ON ACCOUNT OF CAPITAL GAIN FOR WHICH NO CONSIDERATION WAS RECEIVED. 4. THE LD. DR MERELY CONTENDED THAT DEPARTMENTAL APPEAL IS PENDING BEFORE HON'BLE SUPREME COURT AGAI NST THIS JUDGEMENT OF HON'BLE PUNJAB & HARYANA HIGH COU RT. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE NOTIFYING THE DATE OF HEARING. 5. AFTER CONSIDERING FACTS OF THE CASE IN THE LIGHT OF SUBMISSION OF LD. DR, WE DO NOT FIND ANY MERIT IN T HIS DEPARTMENTAL APPEAL. THE IDENTICAL ADDITION ON ACC OUNT OF ACCRUED CAPITAL GAIN HAVE BEEN DELETED BY HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI 4 C.S.ATWAL (SUPRA). MERELY BECAUSE DEPARTMENTAL APP EAL IS PENDING BEFORE SUPREME COURT IS NO GROUND TO TAK E A CONTRARY DECISION. THE ISSUE IS, THEREFORE, COVERE D IN FAVOUR OF THE ASSESSEE BY JUDGEMENT OF HON'BLE PUNJ AB & HARYANA HIGH COURT IN THE CASE OF SHRI C.S. ATWAL (SUPRA). DEPARTMENTAL APPEAL HAS NO MERIT, SAME IS ACCORDINGLY DISMISSED. 3. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA GUPTA) (BHAVNESH SAIN I) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH JANUARY,2017. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD