Chaitanya K. Chonde, Pune V. Income-tax Officer,

ITA 736/PUN/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3903 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 18-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Capital asset; Gift; Additional evidence; Capital Gains
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, A CCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / I TA NO. 736 /PUN/20 1 6 / ASSESSMENT YEAR : 20 1 1 - 1 2 SHRI CHAITANYA K. CHONDE BHUGAON, TAL : MULSHI, DIST : PUNE 411042 PAN: A HEPC3891L ....... / APPELLANT / V/S. THE INCOME TAX OFFICER , WARD 4(6), PUNE / RESPONDENT A SSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI S.P. WALIMBE / DATE OF HEARING : 0 3 .0 3 .2020 / DATE OF PRONOUNCEMENT : 03 .0 3 .2020 / ORDER PER D. KARUNAKARA RAO , A M : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 3 , PUNE , DATED 2 7 . 0 2 .201 6 FOR THE ASSESSMENT YEAR 20 1 1 - 1 2 . 2. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE FILED RETURN OF INCOME FOR THE YEAR UNDER 2 ITA NO. 736 /PUN/20 1 6 CHAITANYA K. CHONDE CONSIDERATION ON 30.03.2012 DECLARING TOTAL INCOME OF RS.1,53,760/ - WHICH WAS PROCESSED U/S 143(1) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) . THE ASSESSING OFFICER ON VERIFICATION OF THE ITS DATA NOTICED THAT THE ASSESSEE ENTERED IN TRANSACTIONS OF SALE PROPERTY. IN THE ASSESSMENT COMPLETED VIDE ORDER DATED 24.03.2014, THE ASSESSING OFFICER REWORKED THE LONG TERM CAPITAL GAINS AND TAXED IT ACCORDINGLY. 3. IN THE FIRST APPELLATE PROCEEDINGS, THE LD. CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER . 4 . AGGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US AND HAS RAISED THE FOLLOW ING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAS ERRED IN COMPUTING THE CAPITAL GAIN OF RS.65,74,853/ - ON ACCOUNT OF SALE OF PLOT SITUATED AT SURVEY NO.57/2, MOUJEBHUGAON, TAL - MULSHI, DIST - PUNE BY R EJECTING APPELLANT'S CONTENTION AND WITHOUT CONSIDERING THE ACTUAL NATURE OF TRANSACTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAS ERRED IN NOT APPRECIATING THE FACT THAT THE AGREEMENT ENTERED INTO BY APPELLANT WAS A DEVELOPMENT AGREEMENT WITH SPECIFIC CONDITION OF PERFORMANCE AND THEREFORE THE DEFINITION OF TERM TRANSFER AS DEFINED U/S 2(47) DOES NOT APPLY TO THE SAID TRANSACTION. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN TAW, THE LO WER AUTHORITIES HAS ERRED IN TAXING THE CAPITAL GAIN TAX OF RS.66,27,500/ - (ASSESSEE'S SHARE 50 % THEREOF RS.32,86,228/ - ) ON ACCOUNT OF SALE OF LAND TO ONE SMT. KAMALABHAI VENKATARAMAIYYA GANNU, BY DISREGARDING THE FACT THAT ENTIRE NET CONSIDERATION WAS DEP OSITED BY THE APPELLANT IN THE CAPITAL GAIN ACCOUNT AND APPELLANT WAS ENTITLED FOR DEDUCTION U/S.54. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES HAS FURTHER ERRED IN NOT APPLYING THE I NDEX OF F.Y 1990 - 91 (YEAR OF ACQUISITION BY DONOR) AND IN ADOPTING THE INDEX FOR F.Y. 2007 - 08 (THAT YEAR OF GIFT) FOR THE ABOVE REFERRED TWO TRANSACTIONS ADDITIONAL EVIDENCES 5. AT THE OUTSET, THE LD. COUNSEL BROUGHT OUR ATTENTION TO A LETTER DATED 10.12. 2019 CONTAINING THE PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE . THE ADDITIONAL EVIDENCES INCLUDE COPY OF CANCELLATION DEED OF JOINT DEVELOPMENT 3 ITA NO. 736 /PUN/20 1 6 CHAITANYA K. CHONDE AGREEMENT DATED 28.02.2019. REFERRING TO ENGLISH TRANSACTION OF THE SAME, IT IS PRAYER OF THE LD. COUNSEL THESE DOCUMENTS ARE THE OUTPUT OF THE EVENTS SUBSEQUENT TO THE ORDERS PASSED BY THE LOWER AUTHORITIES. HE PRAYED THAT IF THESE DOCUMENTS ARE ADMITTED, SINCE GOES TO THE ROOT OF THE MATTER, T HE DECISION S OF THE AUTHORITIES WOULD BE DIFFERENT AND IN FAVOUR OF THE ASSESSEE . THESE FACTS WERE NOT AVAILABLE AT THE RELEVANT TIME WHEN THE ASSESSMENTS PROCEEDINGS BEFORE THE ASSESSING OFFICER AND FIRST APPELLATE AUTHORITY ARE IN PROGRESS. ACCORDINGLY , THE SAME ARE ADMITTED. 6. REFERRING TO THE GROUND NOS.1 AND 2, LD. COUNSEL MENTIONED THAT IF THE PRAYER FOR ADMISSION OF DOCUMENTS IS ADMITTED, GROUND NOS.1 AND 2 ARE REQUIRED TO BE SENT BACK TO THE FILE OF ASSESSING OFFICER FOR DE NOVO ADJUDICATION OF THE ISSUES. 7. ON HEARING BOTH SIDES ON THIS ISSUE, WE FIND IT APPROPRIATE TO REMAND THESE ISSUES IN GROUND NOS.1 AND 2 TO THE FILE OF ASSESSING OFFICER. THE DEVELOPMENT AGREEMENT WHICH IS THE BASE DOCUMENT FOR TAXATION OF CAPITAL GAINS STANDS CANCELLED. THE ASSESSING OFFICER IS DIRECTED TO ADMIT THE SAME AND PASS APPROPRIATE ORDERS AS PER THE PROCEDURE AFTER HEARING THE ASSESSEE. ACCORDINGLY, GROUND NOS. 1 AND 2 ARE ALLOWED FOR STATISTICAL PURPOSES. 8. SIMILARLY, VIDE GROUNDS 3 AND 4, WITH REFERENCE TO SECOND ISSUE RELATING TO THE CAPITAL GAIN TAX , LD. COUNSEL MENTIONED THE ASSESSEE SOLD ANOTHER PIECE OF LAND ALONG WITH HIS BROTHER AND RECEIVED SOME CONSI DERATION. ASSESSEE OPENED AN ACCOUNT FOR CAPITAL GAINS DEPOSIT SCHEME; B UT THE SAID CONSIDERATION WAS RECEIVED IN INSTALLMENTS AND THEREFORE, THE ASSESSEE FAILED TO DEPOSIT THE ENTIRE AMOUNT IN ONE GO IN THE SAID CAPITAL GAINS DEPOSIT 4 ITA NO. 736 /PUN/20 1 6 CHAITANYA K. CHONDE SCHEME ACCOUNT . H OW EVER, THE LOWER AUTHORITIES TOOK A WRONG DECISION ON THE WRONG FACTS. ON FAIRNESS, LD. COUNSEL MENTIONED GROUND NOS.3 AND 4 (GROUND NO.4 BEING CONSEQUENTIAL TO GROUND NO.3) SHOULD ALSO BE REMANDED FOR APPRECIATION OF THE FACTS. SO, AS REQUESTED BY THE LD . COUNSEL, WE FIND IT RELEVANT TO REMAND THE SAME. ACCORDINGLY, GROUND NOS.1 TO 4 STANDS REMANDED TO THE FILE OF ASSESSING OFFICER. 9 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH , 2020. SD/ - SD/ - S.S. VISWANETHRA RAVI D. KARUNAKARA RAO JUDICIAL MEMBER ACCOUNTANT MEMBER / PUNE; / DATED : 3 RD MARCH , 2020. GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT 3. THE CIT (APPEALS) - 3 , PUNE . 4. THE PR. CIT - 2 , PUNE . 5. , , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // // TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE