M/S UPENDRA COLD STORAGE & ICE FACTORY, Jaipur V. DCIT, BHARATPUR

ITA 698/JPR/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4827 (ITAT-JAIPUR)
• Duration Of Justice: 5 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1989-1990
• Appeal Filed On: 25-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH DHK
• Keywords: Capital asset

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 698/JP/2011 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 1989-90 UPENDRA COLD STORAGE & ICE FACTORY, GT ROAD, DHOLPUR. CUKE VS. DY.CIT, CIRCLE, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: U-301 VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL & SHRI ANIL SHARMA JKTLO DH VKSJ LS@ REVENUE BY : SHRI NARENDRA SINGH LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/12/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 23/12/2016 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 20/05/2011 PASSED BY THE LD CIT(A), ALWAR FOR THE A. Y. 1989-90. THE ISSUE INVOLVED IN THIS APPEAL IS AGAINST CONFIRMING THE A DDITION OF RS. 1804553/- MADE BY THE A.O., TOWARDS CAPITAL GAIN ARISING FROM THE ALLEGED TRANSFER OF CAPITAL ASSETS. THE ASSESSEE CLAIMS THAT THE TRANSFE R WAS NOT COMPLETED IN ITA 698/JP/2011_ UPENDRA COLD STORAGE & ICE FACTORY VS DCIT 2 THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 1989 -90. THEREFORE, THE CAPITAL GAIN IS NOT TAXABLE IN THE YEAR UNDER CONSI DERATION. 2. I HAVE HEARD BOTH THE PARTIES AND ALSO PERUSED T HE DOCUMENTS SUBMITTED IN THE PAPER BOOK AS WELL AS DOCUMENTS ASK ED FROM THE ASSESSEE TO SUBMIT DURING THE COURSE OF HEARING. THE RE WAS AN AGREEMENT TO SALE ON RECORD, WHICH IS TENTATIVE/INFORMAL DATE D 31/3/1989 PLACED AT PAGE NOS. 74 AND 75 OF THE PAPER BOOK WHEREIN CLAUSE (4) OF THE AGREEMENT READ AS UNDER:- 4. THE POSSESSION OF THE PROPERTIES AGREED TO BE SO LD WILL BE GIVEN TO THE PURCHASER ON DEPOSITING 25% OF THE SAL E PRICE INTO THAT IN 7.09 LACS AND THE PURCHASER SHALL STAR T THE UNIT WITHIN THREE MONTHS FROM THE DATE THEREOF. THERE IS FINAL AGREEMENT TO SALE DATED 20/2/1990 WHER EIN IT HAS BEEN STATED THAT RS. 8,10,000/- HAS BEEN DEPOSITED TO TH E CORPORATION TOWARDS THE PART PAYMENT OF THE SALE PRICE AS PER THE AGREE D TERMS. THERE IS ALSO A LETTER FROM RFC DATED 11/3/1999 WHEREIN IN PARAGRAP H NO. 1 STATES AS UNDER:- (1) THIS IS A MUTUAL TRANSFER CASE IN WHICH CORPORA TION WAS NOT TAKEN POSSESSION OF THE UNIT. AN AGREEMENT TO SALE WRITTEN SUBMISSIONS EXECUTED ON 31/3/1989 AND POSSESSION OF ASSETS WAS HANDOVER TO PURCHASER ON THE SAME DAY BECAUSE IT IS A MUTUAL TRANSFER CASE. HOWEVER, CORPORATION HAVE ALSO ITA 698/JP/2011_ UPENDRA COLD STORAGE & ICE FACTORY VS DCIT 3 EXECUTED ANOTHER AGREEMENT TO SALE ON 20/02/1990 FO R CHANGE IN AMOUNT OUTSTANDING OF LOAN ACCOUNT. (2) PURCHASER SHRI UPENDRA DUTT HAS DEPOSITED SUM O F RS. 3.00 LACS AS INITIAL DEPOSIT AMOUNT ON 31/3/1989. THUS, THIS LETTER OF RFC SHOWS THAT THE POSSESSION WAS HANDED OVER ON THE DATE OF AGREEMENT TO SALE ON 31/3/1989. THE CLAUSE O F TENTATIVE AGREEMENT REPRODUCED ABOVE SHOWS THAT THE POSSESSION SHALL BE HANDED OVER ON THE PAYMENT OF 25% OF THE AGREED SALE CONSI DERATION. THE ASSESSEE HAS SUBMITTED STATEMENT OF PAYMENT MADE TO RFC IN PURSUANCE TO TENTATIVE AGREEMENT TO SALE DATED 31/3/1989, WHIC H IS AS REPRODUCED AS UNDER:- S. NO. DATE AMOUNT 1. 31/03/1989 300000.00 2. 27/04/1989 50000.00 3. 20/05/1989 160000.00 4. 22/05/1989 5000.00 5. 30/05/1989 10000.00 6. 09/06/1989 10000.00 7. 20/06/1989 35000.00 8. 24/06/1989 10000.00 9. 26/06/1989 10000.00 10. 30/06/1989 10000.00 11. 01/07/1989 75000.00 12. 11/07/1989 15000.00 13. 13/08/1989 40000.00 14. 21/08/1989 10000.00 15. 22/08/1989 10000.00 16. 27/12/1989 60000.00 TOTAL 810000.00 RS. EIGHT LACS TEN THOUSANDS ITA 698/JP/2011_ UPENDRA COLD STORAGE & ICE FACTORY VS DCIT 4 THIS STATEMENT OF PAYMENT MADE TO RFC SHOWS THAT UP T O 27/12/1989 THE AMOUNT RECEIVED WAS RS. 8.10 LACS, WHICH FINDS MENTIO NED IN THE FINAL AGREEMENT TO SALE DATED 20/2/1990. THE TENTATIVE/IN FORMAL AGREEMENT CLEARLY STATES IN PARAGRAPH NO. 4 STATES THAT THE P OSSESSION SHALL BE HANDED OVER ON THE PAYMENT OF 25% OF THE AGREED AMO UNT. IF THE POSSESSION OF PROPERTY WAS NOT HANDED OVER BY 31/3/1 989, THEN THE CAPITAL GAIN LIABILITY SHALL NOT ARISE IN THE ASSES SMENT YEAR 1989-90. SINCE THE ASSESSING OFFICER HAS NOT GOT OPPORTUNITY TO VE RIFY THE VERACITY OF CHART OF PAYMENTS TO RFC AS REPRODUCED AT PAGE NO. 3 OF T HE ORDER, THEREFORE, IN MY CONSIDERED VIEW, THE MATTER NEEDS TO BE RESTOR ED BACK TO THE FILE OF THE ASSESSING OFFICER. KEEPING IN VIEW ALL THESE FAC TS, I RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER VERIFY THE VERACI TY OF THE PAYMENTS CHART AND DECIDE THE ISSUE AS PER LAW. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 23/12/2016. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 RD DECEMBER, 2016 ITA 698/JP/2011_ UPENDRA COLD STORAGE & ICE FACTORY VS DCIT 5 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- UPENDRA COLD STORAGE & ICE FACTORY, DHOLPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE DCIT, CIRCLE, BHARATPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 698/JP/2011) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR