Meena Lahoti, Secunderabad, Secunderabad V. ITO, Ward-6(2), Hyd, Hyderabad

ITA 795/HYD/2015

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4774 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 19-04-2021
• Assessment Year: 2005-2006
• Appeal Filed On: 11-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY SHARDA
• Keywords: Capital asset; Business income; Cost of acquisition; Revised return; Capital Gains
• Section: 143(3); 13; 54; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 795/HYD/15 2005-06 MEENA LAHOTI, SECUNDERABAD [PAN: AADPL3898G] INCOME TAX OFFICER, WARD-6(2), HYDERABAD 77/HYD/18 2008-09 ASST. COMMISSIONER OF INCOME TAX, CIRCLE-15(1), HYDERABAD FOR ASSESSEE : SHRI SANJAY SHARDA, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 19-04-2021 DATE OF PRONOUNCEMENT : 19-05-2021 O R D E R PER S.S.GODARA, J.M. : THESE TWO ASSESSEES APPEALS FOR AYS.2005-06 & 2008 -09 ARISE FROM THE CIT(A)-4 & 7, HYDERABADS ORDER(S) DA TED 27-02- 2015 AND 03-10-2017, PASSED IN APPEAL NOS.0469/2014 - 15/ITO,WD.6(2)/CIT(A)-4/HYD/2014-15 & 015/2016-17; IN PROCEEDINGS U/S. 143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH PARTIES. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT ASSESSEES INSTANT TWIN SUBSTANTIVE GROUNDS IN AY.2005-06S APPEAL ITA NO.795/HYD/2015 SEEK TO CHALLENGE BOTH THE LEARNED LOW ER ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 2 -: AUTHORITIES ACTION INTER ALIA ADDING SHORT TERM CAPITAL GAIN OF RS.51,72,920/- IN THE COURSE OF ASSESSMENT DT.22-03-20 13 AND UPHELD IN THE CIT(A)S ORDER IN AY.2005-06. THE ASSESSEES FORMER SUBSTANTIVE CHALLENGES CORRECTNESS OF THE IMPUGN ED SHORT TERM CAPITAL GAIN ADDITION AND LATTER SUBSTANTIVE G ROUND (ADDITIONAL IN NATURE ADMITTED SINCE ANCILLARY TO THE MAIN ISSUES THEREBY REJECTING THE REVENUES TECHNICAL ARGUM ENTS) PLEADS THAT THE SAME OUGHT TO HAVE BEEN TREATED AS PROFIT A ND GAIN FROM BUSINESS SINCE SHE HAD TRANSFERRED THE LAND IN ISSUE IN THE NATURE OF ADVENTURE IN REAL ESTATE DEVELOPMENT ONLY. 3. COMING TO THE LATTER AY.2008-09 INVOLVING ASSESSEE S APPEAL ITA NO.77/HYD/2018 SHE HAS PLEADED THE FOLLOW ING TWIN SUBSTANTIVE GROUNDS: 1.IN COMPUTING THE TOTAL INCOME THE LEARNED ASSESS ING OFFICER AND THE HON'BLE CIT(A) HAVE ERRED IN REJECTING THE REVISED RETURN FILED BY THE ASSESSEE U/S.139(5) R.W.S.147 OF THE INCOME TAX ACT , 1961. 2.THE LEARNED ASSESSING OFFICER AND THE HON'BLE CIT (A) HAVE ERRED IN OT CONSIDERING THE FACT THAT THE CAPITAL GAINS ON T HE TRANSFER OF LAND HAS ALREADY BEEN BROUGHT TO TAX IN THE AY.2005-06. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL PLEADINGS. BOTH THE LEARNED REPRESENTATIVES TOOK US TO THE CIT(A)S LOWER APPELLATE ORDER FORMING SUBJECT MATTER OF AY.2005-06S ITA NO.795/HYD/2015 AFFIRMING THE ASSES SING OFFICERS ACTION MAKING THE IMPUGNED SHORT TERM CAPITAL GAIN ADDITION AS FOLLOWS: 4. GROUND NO.2 &. 3 RELATE TO ADDITION ON ACCOUNT OF SHORT TERM CAPITAL GAINS ON ACCOUNT OF DEVELOPMENT AGREEMENT. THE FACTS RELATED TO THE SAME IN BRIEF ARE AS BELOW: THE ASSESSEE PURCHASED A PLOT OF LAND ADMEASURING 1 088 SQ. YARDS AT EENADU COLONY, KUKATPALLY ON 15/08/2004. SHE ENT ERED INTO A DEVELOPMENT AGREEMENT ON 19/10/2004 WITH M/S.ASHWIN I ABODES, A ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 3 -: PROPRIETARY CONCERN OF SMT. J. USHA KIRAN FOR CONST RUCTION OF FLATS. THE ASSESSEE IS ENTITLED TO 11,850 SQ. FT OF CONSTRUCTE D AREA BEING 44% OF THE TOTAL AREA TO BE CONSTRUCTED. THE ASSESSEE HAS GIVEN THE POSSESSION OF THE LAND TO THE DEVELOPER. THE AO AFT ER ANALYZING THE VARIOUS CLAUSES OF THE DEVELOPMENT AGREEMENT CONCLU DED THAT THERE WAS TRANSFER WITHIN THE MEANING OF SEC. 2(47) OF IN COME TAX ACT AND BROUGHT TO TAX THE RESULT GAINS AS SHORT TERM CAPIT AL GAINS AS THE ASSET WAS HELD FOR LESS THAN 3 YEARS. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAS SUBMITTED AS UNDER: THE ASSESSEE ENTERED INTO A DEVELOPMENT AGREEMENT-C UM-GENERAL POWER_OF ATTORNEY WITH M/S ASHWINI ABODES A PROPRIE TARY CONCERN OF SMT. J.USHA KIRAN ON 09.10.2004, WHICH IS ALSO REGI STERED BEFORE THE SUB-REGISTRAR, KUKATPALLY. AS PER THE DEVELOPMENT A GREEMENT THE OWNER AND THE DEVELOPER HAVE TO FULFILL CERTAIN OBL IGATIONS RECORDED ILL THE DOCUMENT OF DEVELOPMENT AGREEMENT. IT IS PERTIN ENT TO MENTION HERE THAT NO ADVANCE WAS PAID TO THE OWNER BY THE D EVELOPER. THE FIRST STEP IN THE DEVELOPMENT AGREEMENT IS TO OBTAI N THE SANCTION FROM THE HUDA/KUKATPALLY MUNICIPALITY FOR THE PROPOSED P ROPERTY BY DRAWING THE SKETCH AS PER THE RULES AND REGULATIONS PRESCRIBED. THE BUILDER HAS NOT OBTAINED THE PERMISSION FOR THE CON STRUCTION OF THE PROPERTY DURING THE PERIOD RELEVANT TO THE SUBJECT ASSESSMENT YEAR. NO ACTIVITY WAS CARRIED ON THE LAND BY THE BUILDER AS THERE WAS NO PERMISSION. THEREFORE, THE PROPERTY WAS NOT HANDED OVER NOR ANY CONSIDERATION DEEMED/ACTUAL WAS RECEIVED DURING THE PERIOD RELEVANT TO THE SUBJECT ASSESSMENT YEAR. IT IS PERTINENT TO MENTION HERE THAT THE MUNICIPAL SANCTION FOR THE CONSTRUCTION OF THE PROPOSED COMPLEX WAS APPROVED B Y THE KUKATPALLY MUNICIPALITY/HUDA VIDE PROCEEDINGS NO. G1/170/BA/1750/2006-07 DATED 14/11/2006. MEANWHILE THE ASSESSEE AND THE DEVELOPER ALSO ENTERED INTO A RECT IFICATION DEED DT: 09.02.2005, WHICH IS REGISTERED AS DOCUMENT NO.813/ 2005 OF SUB- REGISTRAR, KUKATPALLY. AFTER OBTAINING PERMISSION T HE ASSESSEE ENTERED INTO A SUPPLEMENTAL AGREEMENT ON 01/11/2006 WHEREIN THE PROPOSED OWNERS SHARE OF PROPERTY AND BUILDERS SHA RE OF PROPERTY WAS IDENTIFIED CORRECTLY. SUBSEQUENT TO THIS SUPPLE MENT AGREEMENT. THE BUILDER STARTED DISCHARGING HIS OBLIGATIONS AS PER THE AGREEMENTS ENTERED IN VIEW OF THE ABOVE SUBMISSIONS IT IS RESP ECTFULLY SUBMITTED THAT NO TRANSFER OF PROPERTY HAS TAKEN PLACE AS PER THE PROVISIONS OF THE SECTION 2(47) OF THE IT ACT, DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR 2005-06. THE LEARNED ASSESSING OFFICER ON THE STRENGTH OF TH E DEVELOPMENT AGREEMENT DT: 19.10.2004, ASSUMED THAT A TRANSFER O F PROPERTY HAS TAKEN PLACE AS PER THE PROVISIONS OF SECTION 2[47] OF THE IT ACT, DURING ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 4 -: THE PERIOD RELEVANT ASST. YEAR 2005-06 AND CHARGED THE ASSUMED CONSIDERATION TO CAPITAL GAINS TAX. IT IS RESPECTFU LLY SUBMITTED THAT NO TRANSFER HAS TAKEN PLACE AS PER THE PROVISIONS OF S ECTION 2[47] OF THE IT ACT, MERELY ON ACCOUNT OF ENTERING INTO A DEVELO PMENT AGREEMENT WITH THE BUILDER. FOR THE SAKE OF CONVENIENCE THE P ROVISION OF SECTION 2(47] ARE REPRODUCED HERE UNDER: SEC. 2(47) ['TRANSFER', IN RELATION TO A CAPITAL AS SET, INCLUDES, - (I) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET; OR (II) THE EXTINGUISHMENT OF ANY RIGHT 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; [O R] (IVA) THE MATURITY OR REDEMPTION OF A ZERO COUPON B OND; OR (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSS ESSION 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 (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOM ING A MEMBER OF, OR ACQUIRING SHARES IN, A COOPERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHIC H HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYME NT OF ANY IMMOVABLE PROPERTY. THE ASSESSING OFFICER HAS 1101 STATED WHICH SUB SEC TION OF SECTION 2(47) IS ATTRACTED ILL THE CASE OF ASSESSEE ANALYSI S OF ALL THE SUBSECTIONS OF SECTION 2(47) REVEAL THAT THE TRANSA CTION DOES NOT FALL WITHIN THE AMBIT OF SECTION 2[47][I][II][LIII][IV][ IVA] & [VI] OF THE IT ACT. HOWEVER, THE OTHER SECTION WHICH MAY ATTRACTS AS PE R THE ASSUMPTION OF THE ASSESSING OFFICER IS SECTION 2[47] [V] OF TH E IT ACT, WHICH HAS REFERRED SECTION 53A OF THE TRANSFER OF PROPERTY AC T, 1882. THE HON'BLE ITAT, HYDERABAD A BENCH, HYDERABAD, IN TH E CASE OF MS K. RADHIKA VS. DCIT [ITA NO.208 TO 211/HYD/2011 HELD T HAT TO ATTRACT SECTION 53A OF THE TP ACT, CERTAIN CONDITIONS LAID DOWN IN THAT SECTION, ARE TO BE SATISFIED. WHILE CONSIDERING THE ISSUE, W HETHER THERE IS A TRANSFER OR NOT WHEN THE OWNER ENTERED INTO AN AGRE EMENT FOR THE DEVELOPMENT OF THE PROPERTY BY REGISTERING A DEVELO PMENT AGREEMENT WITH THE BUILDER, IT WAS HELD BY THE HON'BLE BENCH IN PARAS 46 TO 50 OF THE ORDER, AS UNDER; 46. A PLAIN READING OF THE SECTION 53 A OF THE TRAN SFER OF PROPERTY ACT SHOWS THAT IN ORDER THAT A CONTRACT CAN BE TERMED T O BE 'OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPE RTY ACT' IT IS ONE OF THE NECESSARY PRECONDITIONS THAT TRANSFEREE SHOULD HAVE OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, THIS ASPECT HA S BEEN DULY TAKEN ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 5 -: NOTE OF BY THE HON'BLE BOMBAY HIGH COURT WHEN THEIR LORDSHIPS OBSERVED AS FOLLOWS: 'THAT, IN ORDER TO ATTRACT SECTION 53A, THE FOLLOWI NG CONDITIONS NEED TO BE FULFILLED. (A) THERE SHOULD BE CONTRACT FOR CONSIDERATION; (B) IT SHOULD BE IN WRITING; (C) IT SHOULD BE SIGNED BY THE TRANSFEROR; (D) IT SHOULD PERTAIN TO THE TRANSFER OF IMMOVABLE PROPERTY; (E) THE TRANSFEREE SHOULD HAVE TAKEN POSSESSION OF PROPERTY; LASTLY, TRANSFEREE SHOULD BE READY AND WILLING TO P ERFORM THE CONTRACT 47. ELABORATING UPON THE SCOPE OF EXPRESSION 'HAS P ERFORMED OR IS WILLING TO PERFORM', THE OFT QUOTED COMMENTARY 'MUL LA - THE TRANSFER OF PROPERTY ACT' (9 TH EDN. : PUBLISHED BY BUTTERWORTHS INDIA), AT P. 448, OBSERVES THAT: 'THE DOCTRINE OF READINESS AND WILLINGNESS IS AN EM PHATIC WAY OF EXPRESSION TO ESTABLISH THAT THE TRANSFEREE ALWAYS ABIDES BY THE TERMS OF THE AGREEMENT AND IS WILLING TO PERFORM HI S PART OF THE CONT RACT: PART PERFORMANCE, AS A STATUTORY RIGHT, IS CO NDITIONED UPON THE TRANSFEREE'S WILLINGNESS TO PERFORM HIS PART OF THE CONTRACT IN TERMS COVENANTED THERE UNDER. ' WILLINGNESS TO PERFORM THE ROLES ASCRIBED TO A PART Y, IN A CONTRACT IS PRIMARILY A MENTAL DISPOSITION. HOWEVER, SUCH WILLI NGNESS IN THE CONTEXT OF SECTION 53A OF THE ACT HAS TO BE ABSOLUT E AND UNCONDITIONAL IF WILLINGNESS IS STUDDED WITH A CONDITION, IT IS I N FACT NO MORE THAN ALL OFFER AND CANNOT BE TERMED AS WILLINGNESS. WHEN THE VENDEE COMPANY EXPRESSES ITS WILLINGNESS TO PAY THE AMOUNT , PROVIDED THE (VENDOR) CLEARS HIS INCOME TAX ARREARS, THERE IS NO COMPLETE WILLINGNESS BUT A CONDITIONAL WILLINGNESS OR PARTIA L WILLINGNESS WHICH IS NOT SUFFICIENT ... IN JUDGING THE WILLINGNESS TO PERFORM, THE COURT MU ST CONSIDER THE OBLIGATIONS OF THE PARTIES AND THE SEQUENCE IN WHIC H THESE ARE TO BE PERFORMED' 48. WE ARE IN CONSIDERED AGREEMENT WITH THE VIEWS S O EXPRESSED IN THIS COMMENTARY ON THE PROVISIONS OF THE TRANSFER O F PROPERTY ACT. IT IS THUS CLEAR THAT 'WILLINGNESS TO PERFORM' FOR THE PU RPOSES OF SECTION 53A IS SOMETHING MORE THAN A STATEMENT OF INTENT; I T IS THE UNQUALIFIED AND UNCONDITIONAL WILLINGNESS ON THE PART OF THE VE NDEE TO PERFORM ITS OBLIGATIONS. UNLESS THE PARTY HAS PERFORMED OR IS W ILLING TO PERFORM ITS OBLIGATIONS UNDER THE CONTRACT, AND IN THE SAME SEQ UENCE IN WHICH THESE ARE TO BE PERFORMED, IT CANNOT BE SAID THAT T HE PROVISIONS OF SECTION 53 A OF THE TRANSFER OF PROPERTY ACT WILL C OME INTO PLAY ON THE FACTS OF THAT CASCO. IT IS ONLY ELEMENTARY THAT, UN LESS PROVISIONS OF ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 6 -: SECTION 53A OF THE TRANSFER OF PROPERTY ACT ARE SAT ISFIED ON THE FACTS OF A CASE, THE TRANSACTION IN QUESTION CANNOT FALL WITHIN THE SCOPE OF DEEMED TRANSFER UNDER SECTION 2(47)(V) OF THE IT AC T. LET US THEREFORE CONSIDER WHETHER THE TRANSFEREE, ON THE FACTS OF TH E PRESENT CASE, CAN BE SAID TO HAVE 'PERFORMED OR IS WILLING TO PERFORM ' ITS OBLIGATIONS UNDER THE AGREEMENT. 49. EVEN A CURSORY LOOK AT THE ADMITTED FACTS OF TH E CASE WOULD SHOW THAT THE TRANSFEREE HAD NEITHER PERFORMED NOR WAS I T WILLING TO PERFORM ITS OBLIGATION UNDER THE AGREEMENT IN THE A SSESSMENT YEAR UNDER CONSIDERATION. THE AGREEMENT BASED ON WHICH C APITAL GAINS ARE SOUGHT TO BE TAXED IN THE PRESENT CASE IS AGREEMENT DATED 11.05.2005 BUT THIS AGREEMENT WAS NOT ADHERED TO BY THE TRANSFEREE. THE TRANSFEREE ORIGINALLY MADE A PAYMENT OF RS.10 L AKHS ON 11.5.2005 AND ANOTHER PAYMENT OF RS.90 LAKHS ON THE SAME DAY AS REFUNDABLE SECURITY DEPOSIT. HOWEVER, OUT OF THIS A SUM OF RS.50 LAKHS WAS SAID TO BE REFUNDABLE BY THE LANDLORD TO THE DEVELOPER ALL 5.3.2009. AS SUCH, THE ASSESSEE HAS RECEIVED ONLY A MEAGER AMOUNT AS RECEIPT OF PART OF SALE CONSIDERATION. ADMITTEDL Y, THERE IS NO PROGRESS IN THE DEVELOPMENT AGREEMENT IN THE ASSESS MENT YEAR UNDER CONSIDERATION. THE MUNICIPAL SANCTION FOR DEVELOPME NT WAS OBTAINED NOT IN THIS ASSESSMENT YEAR AND IT TO AS OBTAINED O NLY ON 17.09.2006 FROM THE HYDERABAD URBAN DEVELOPMENT AUTHORITY. THE SANCTION OF THE BUILDING PLAN IS UTMOST IMPORTANT FOR THE IMPLE MENTATION OF THE AGREEMENT ENTERED BETWEEN THE PARTIES. WITHOUT SANC TION OF THE BUILDING PLAN, THE VERY GENESIS OF THE AGREEMENT FA ILS. TO ENABLE THE EXECUTION OF THE AGREEMENT, FIRSTLY, PLAN IS TO BE APPROVED BY THE COMPETE1LT AUTHORITY. IN FACT, THE BUILDING PLAN WA S NOT GOT APPROVED BY THE BUILDER IN THE ASSESSMENT YEAR UNDER CONSIDE RATION. UNTIL PERMISSION IS GRANTED, A DEVELOPER CANNOT UNDERTAKE CONSTRUCTION. AS A RESULT OF THIS LAPSE BY THE TRANSFEREE, THE CONST RUCTION WAS NOT TAKEN PLACE ILL THE ASSESSME1LT YEAR UNDER CONSIDER ATION. THERE IS A BREACH AND BREAK DOWN OF DEVELOPMENT AGREEMENT IN T HE ASSESSMENT YEAR UNDER CONSIDERATION. NOTHING IS BROUGH ON RECO RD BY AUTHORITIES TO SHOW THAT THERE WAS DEVELOPMENT ACTIVITY IN THE PROJECT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION AND COST OF CON STRUCTION WAS INCURRED BY THE BUILDER/DEVELOPER. HENCE IT IS TO B E INFERRED THAT NO AMOUNT OF INVESTMENT BY THE DEVELOPER IN THE CONSTR UCTION ACTIVITY DURING TILE ASSESSMENT YEAR IN THIS PROJECT AND IT WOULD AMOUNT TO NON-INCURRING OF REQUIRED COST OF ACQUISITION BY TH E DEVELOPER. IN THE ASSESSMENT YEAR UNDER CONSIDERATION, IT IS NOT POSS IBLE TO SAY WHETHER THE DEVELOPER PREPARED TO CARRY OUT THOSE P ARTS OF THE AGREEMENT TO THEIR LOGICAL END. THE DEVELOPER ILL T HIS ASSESSMENT YEAR HAD NOT SHOWN ITS READINESS OR HAVING MADE PREPARAT ION FOR UTE COMPLIANCE OF THE AGREEMENT. THE DEVELOPER HAS NOT TAKEN STEPS TO MAKE IT ELIGIBLE TO UNDERTAKE THE PERFORMANCE OF TH E AGREEMENT WHICH ARE THE PRIMARY INGREDIENT THAT MAKE A PERSON ELIGI BLE AND ENTITLED TO ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 7 -: MAKE THE CONSTRUCTION. THE ACT AND CONDUCT OF THE D EVELOPER IN THIS ASSESSMENT YEAR SHOWS THAT IT HAD VIOLATED ESSENTIA L TERMS OF THE AGREEMENT WHICH TEND TO SUBVERT THE RELATIONSHIP ES TABLISHED BY THE DEVELOPMENT AGREEMENT. BEING SO, IT WAS CLEAR THAT IN THE YEAR UNDER CONSIDERATION, THERE WAS NO TRANSFER OF NOT ONLY TH E FLATS AS SUPERSTRUCTURE BUT ALSO THE PROPORTIONATE LAND BY T HE ASSESSEE UNDER THE JOINT DEVELOPMENT AGREEMENT, AS PER CLAUSE NO. 12.11 AND 19.1 OF DEVELOPMENT AGREEMENT-CUM POWER OF ATTORNEY, TIME I S THE ESSENCE OF THE CONTRACT AND AS PER CLAUSE NO. 12.11 THE SAI D PROPERTY IS TO BE DEVELOPED AND HAND OVER THE POSSESSION OF THE OWNER S ALLOCATION TO THE OWNERS' AND OR THEIR NOMINEES WITHIN 24 MONTHS FROM THE DATE OF RECEIVING THE SANCTION OF THE PLAN FROM HUDA AND MU NICIPALITY/GRAM PANCHAYAT WITH A FURTHER GRACE PERIOD OF 3. MONTHS. BUT THE FACT REMAINS THAT THE TRANSFEREE WAS NOT ONLY FAILED TO PERFORM ITS OBLIGATIONS UNDER THE. AGREEMENT, BUT ALSO UNWILLIN G TO PERFORM ITS OBLIGATIONS IN THE ASSESSMENT' YEAR UNDER CONSIDERA TION. EVEN OTHERWISE, THE ASSESSING AUTHORITIES HAS NOT BROUGH T ON RECORD THE ACTUAL POSITION OF THE PROJECT EVEN AS ON THE DATE OF ASSESSMENT OR HE HAS NOT RECORDED THE FINDINGS WHETHER THE DEVELOPER STARTED THE CONSTRUCTION WORK AT ANY TIME DURING THE ASSESSMENT YEAR UNDER CONSIDERATION OR ANY DEVELOPMENT HAS TAKEN PLACE IN THE PROJECT IN THE RELEVANT PERIOD. HE WENT ON TO PROCEED ON THE S OLE ISSUE WITH REGARD TO HANDING OVER THE POSSESSION OF THE PROPER TY TO THE DEVELOPER IN PART PERFORMANCE OF THE DEVELOPMENT AGREEMENT-CU M-GENERAL POWER OF ATTORNEY. IN OUR OPINION, THE HANDING OVER OF THE POSSESSION OF THE PROPERTY IS ONLY ONE OF THE CONDITION U/S. 5 3A OF THE TRANSFER OF PROPERTY ACT BUT IT IS NOT THE SOLE AND ISOLATED CO NDITION. IT IS NECESSARY TO GO INTO WHETHER OR NOT THE TRANSFEREE WAS WILLING TO PERFORM ITS OBLIGATION UNDER THESE CONSENT TERMS. WHEN TRANSFEREE, BY ITS CONDUCT AND BY ITS DEEDS, DEMONSTRATES THAT IT IS UNWILLING TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT IN THIS ASSESSMENT YEAR, THE DATE OF AGREEMENT CEASES TO BE RELEVANT. IN SU CH A SITUATION, IT IS ONLY THE ACTUAL PERFORMANCE OF TRANSFEREES OBLIGAT IONS WHICH CAN GIVE RISE TO THE SITUATION ENVISAGED IN SECTION 53A OF T HE TRANSFER OF PROPERTY ACT. ON THESE FACTS, IT IS NOT POSSIBLE TO HOLD THAT THE TRANSFEREE WAS WILLING TO PERFORM ITS OBLIGATIONS I N THE FINANCIAL YEAR IN WHICH THE CAPITAL GAINS ARE SOUGHT TO BE TAXED B Y THE REVENUE. WE HOLD THAT THIS CONDITION LAID DOWN UNDER SECTION 53 A OF THE TRANSFER OF PROPERTY ACT WAS NOT SATISFIED IN THIS ASSESSMEN T YEAR. ONCE WE COME TO THE CONCLUSION THAT THE TRANSFEREE WAS NOT 'WILLING TO PERFORM AS STIPULATED BY AND WITHIN MEANINGS ASSIGNED TO TH IS EXPRESSION UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT, ITS CONTRACTUAL OBLIGATIONS ILL THIS PREVIOUS YEAR RELEVANT TO THE PRESENT ASSESSMENT YEAR, IT IS ONLY A COROLLARY TO THIS FINDING THAT T HE DEVELOPMENT AGREEMENT DT. 11.5.2005 BASED ON WHICH THE IMPUGNED TAXABILITY OF CAPITAL GAIN IS IMPOSED BY THE AO AND UPHELD BY THE CIT(A), CANNOT ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 8 -: BE SAID TO BE A 'CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT' AND, ACCORDINGLY, PROVISI ONS OF SECTION 2(47)(V) CANNOT BE INVOKED ON THE FACTS OF THIS CAS E CHATURBHUJ DWARKADAS KAPADIA V. OIL'S CASE (SUPRA) UNDOUBTEDLY LAYS DOWN A PROPOSITION WHICH, MORE OFTEN THAN NOT, FAVOURS THE REVENUE, BUT, ON THE FACTS OF THIS CASE, THE SAID JUDGMENT SUPPORTS THE CASE OF THE ASSESSEE INASMUCH AS 'WILLINGNESS TO PERFORM' HAS B EEN SPECIFICALLY RECOGNIZED AS ONE OF THE ESSENTIAL INGREDIENTS TO C OVER A TRANSACTION BY THE SCOPE OF SECTION 53A OF THE TRANSFER OF PROP ERTY ACT. REVENUE DOES NOT GET ANY ASSISTANCE FROM THIS JUDICIAL PREC EDENT. THE VERY FOUNDATION OF REVENUE'S CASE IS THUS DEVOID OF LEGA LLY SUSTAINABLE BASIS. 50. THAT IS CLEARLY AN ERROUEOUS ASSUMPTION, AND AN THE PROVISIONS OF DEEMED TRANSFER UNDER SECTION 2(47)(V) COULD NOT HA VE BEEN INVOKED ON THE FACTS OF THE PRESENT CASE AND FOR THE ASSESS MENT YEAR IN DISPUTE BEFORE US. IN THE PRESENT CASE, THE SITUATI ON IS THAT THE ASSESSEE HAS RECEIVED ONLY A 'MEAGER AMOUNT' OUT OF TOTAL CONSIDERATION, THE TRANSFEREE IS AVOIDING ADHERING TO THE AGREEMENT AND THERE IS NO EVIDENCE BROUGHT ON RECORD BY THE R EVENUE AUTHORITIES TO SHOW THAT THERE WAS ACTUAL CONSTRUCTION HAS BEEN TAKEN PLACE AT THE IMPUGNED PROPERTY IN THE ASSESSMENT YEAR UNDER CONSIDERATION AND ALSO THERE IS NO EVIDENCE TO SHOW THAT THE RIGH T TO RECEIVE THE SALE CONSIDERATION WAS ACTUALLY ACCRUED TO THE ASSESSEE. WITHOUT ACCRUAL OF THE CONSIDERATION TO THE ASSESSEE, THE ASSESSEE IS NOT EXPECTED TO PAY CAPITAL GAINS ON THE ENTIRE AGREED SALES CONSID ERATION. WHEN TIME IS ESSENCE OF THE CONTRACT, AND THE TIME SCHEDULE I S NOT ADHERED TO, IT CANNOT BE SAID THAT SUCH A CONTRACT CONFERS ANY RIG HTS ON THE VENDOR/LANDLORD TO SEEK REDRESSAL UNDER SECTION 53A OF THE TRANSFER OF PROPERTY ACT. THIS AGREEMENT CANNOT, THEREFORE, BE SAID TO BE IN THE NATURE OF A CONTRACT REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT. IT CANNOT, THEREFORE, BE SAID THAT TH E PROVISIONS OF SECTION 2(47)(V) WILL APPLY IN THE SITUATION BEFORE US. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS DISC USSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE DESERV ES TO SUCCEED ON REASON THAT THE CAPITAL GAINS COULD NOT HAVE BEEN T AXED IN THE IN THIS ASSESSMENT YEAR IN APPEAL BEFORE US. THE OTHER GROU NDS RAISED BY THE ASSESSEES IN THEIR APPEALS HAVE BECOME IRRELEVA NT AT THIS POINT OF TIME AS WE HAVE HELD THAT PROVISIONS OF SECTION 2(4 7)(V) WILL NOT APPLY TO THE ASSESSEES IN THE ASSESSMENT YEAR UNDER CONSI DERATION. CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE IN IT A NO. 328 TO 331/HYD/2011 HAVE BECOME INFRUCTUOUS AND DISMISSED ACCORDINGLY. WITH THE ABOVE OBSERVATION THE HON'BLE BENCH HELD T HAT THERE IS NO TRANSFER TO ATTRACT THE CAPITAL GAINS. IN THE CASE OF ASSESSEE ALSO THE SO CALLED DEVELOPER/BUILDER HAS NOT INITIATED ANY A CTIVITIES FOR THE DEVELOPMENT OF THE PROPERTY DURING THE PERIOD RELEV ANT TO THE SUBJECT ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 9 -: ASSESSMENT YEAR. THE BASIC REQUIREMENT FOR THE DEVE LOPMENT OF THE' PROPERTY IS THE OBTAINING OF PERMISSION FROM APPROP RIATE AUTHORITIES/HUDA. NO SUCH SANCTION HAS BEEN OBTAINE D BY THE BUILDER/DEVELOPER TILL THE END OF OCT 2006. IN THE ABSENCE OF SUCH PERMISSION NO FURTHER ACTIVITY TOWARDS THE DEVELOPM ENT HAS BEEN TAKEN PLACE ON THE SUBJECT LAND. THE STATE OF CONDI TION OF THE SUBJECT LAND CAN BE VERIFIED BY THE DEPARTMENT FROM THE CON CERNED AUTHORITIES OR FROM THE DEVELOPER. THEREFORE, THE T RANSFEREE HAS NOT PERFORMED OR WAS WILLING TO PERFORM ANY OF THE COND ITIONS LAID IN THE DEVELOPMENT AGREEMENT UPTO 14.11.2006. THEREFORE, T HERE IS NO CERTAINTY OF FULFILLMENT OF ANY OF THE CONDITIONS B Y THE DEVELOPER DURING THE PERIOD RELEVANT TO THE SUBJECT ASSESSMEN T YEAR. IN THIS SCENARIO IT CANNOT BE SAID THAT A TRANSFER HAS TAKE N PLACE AS PER THE PROVISIONS OF SECTION 2[471 OF THE IT ACT TO ATTRAC T THE CAPITAL GAINS . FROM THE FACTS 01 THE CASE IT IS CLEAR THAT WILLING NESS TO PERFORM THE OBLIGATIONS OF THE DEVELOPMENT AGREEMENT WAS LAGGIN G ON THE PART OF DEVELOPER THEREFORE, UNLESS THE DEVELOPER HAS PERFO RMED OR WILLING TO PERFORM ITS OBLIGATIONS UNDER THE DEVELOPMENT AGREE MENT, ILL THE SEQUENCE IN WHICH THESE ARE TO BE PERFORMED I.E. ST ARTING WITH OBTAINING PERMISSION FOR CONSTRUCTION FROM THE APPR OPRIATE AUTHORITY AND THEN STARTING THE REAL DEVELOPMENT WORK OF THE PROPERTY, IT CANNOT BE SAID THAT THE PROVISIONS OF THE SECTION 53A OF T HE TRANSFER OF PROPERTY ACT WILL COME INTO PLAY ON THE FACTS OF TH E CASE. THEREFORE, IT IS RESPECTFULLY SUBMITTED THAT NO TRANSFER HAS TAKE N PLACE DURING THE PERIOD RELEVANT TO THE SUBJECT ASSESSMENT YEAR. THE ISSUE OF CHARGING OF CAPITAL GAINS, MERELY ON E NTERING INTO A DEVELOPMENT AGREEMENT WHERE NO DEVELOPMENT WORK WAS STARTED, CAME BEFORE THE HON'BLE ITAT, HYDERABAD IN THE CASE OF M/S FIBARS INFRATECH PVT LTD VS ITO WARD-1 (2). HYDERABAD, ITA NO. 477/HYD/2013, DT: 03.01.2014. AND M/S BINJUSARIA PR OPERTIES PVT LTD VS ACIT (CENTRAL CIRCLE), HYDERABAD, ITA NO.157 /HYD/11 DT: 04.04.2014. IN BOTH THE CASES THE HON'BLE 'B' BENCH HELD THAT NO TRANSFER HAS TAKEN PLACE AS PER THE PROVISIONS OF S ECTION 2(47) OF THE IT ACT AND THEREFORE, NO CAPITAL GAINS ARE TO BE CH ARGED. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RATIONALE OF THE JURISDICTIONAL ITAT PRONOUNCEMENTS IN THE CA SE MS.K.RADHIKA, M/S.FIBARS INFRATECH PVT. LTD. AND M/S.BINJUSARIA P ROPERTIES PVT. LTD., THE HON'BLE COMMISSIONER IS REQUESTED. 6. THE FACTUAL POSITION BROUGHT OUT IN THE ASSESSME NT ORDER, SUBMISSIONS OF THE ASSESSEE DURING THE ASSESSMENT P ROCEEDINGS AND THE APPELLATE PROCEEDINGS ARE CONSIDERED. THE BASIC ISSUE RAISED BY THE ASSESSEE IS REGARDING THE YEAR OF ASSESSABILITY . THE ASSESSEE IS NOT DISPUTING THE TAXABILITY OF INCOME ON ACCOUNT O F DEVELOPMENT AGREEMENT. THE ISSUE RAISED IS REGARDING THE YEAR O F TAXABILITY. ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 10 -: RELYING ON THE DECISION OF THE HON'BLE ITAT IN THE CASE OF MS. K. RADHIKA VS DCIT (ITA NO.208 TO 211/HYD/2011) AND M/ S. FIBARS INFRATECH PVT. LTD. (ITA NO. 477/HYD/2013), THE ASS ESSEE'S CONTENTION IS THAT WHERE THERE IS NO WILLINGNESS ON PART OF TH E BUILDER, THERE IS NO TRANSFER AS CONTEMPLATED U/S. 2(47) OF INCOME TAX A CT, 1961. IN THIS CASE THE AGREEMENT IS DATED 19/10/2004. THE ASSESS EE CONTENDED THAT NO CONSTRUCTION WORK WAS STARTED BEFORE 14/11 /2006 AND HENCE, IT CANNOT BE SAID THAT THE 'TRANSFER' TOOK P LACE DURING THE PERIOD RELEVANT TO THIS ASSESSMENT YEAR IE. 2005-06 . 7. IN THIS CONTEXT IT IS SEEN THAT THE ASSESSEE HAS ENTERED INTO DEVELOPMENT AGREEMENT-NUN-GENERAL POWER OF ATTORNEY ON 19/10/2004. THE AGREEMENT CLEARLY SHOW THAT POSSESS ION OF THE PROPERTY WAS HANDED OVER TO THE DEVELOPER CLAUSE 4( C) IS REPRODUCED FOR THE SAKE OF EASY REFERENCE WHICH IS AS UNDER: 4(C) THE OWNER SHALL AT HER COST AND EXPENSE DEMOL ISHED THE EXISTING SHEDS ITC., IN THE SCHEDULE I PROPERTY AND HANDED OVER THE VACANT SITE TO THE DEVELOPER PENDING THE RELEASE OF THE SANCTIONED PANS BY HUDA / KUKATPALLY MUNICIPALITY TO ENABLE TH E DEVELOPER TO STAR CONSTRUCTION WORK. FURTHER, THE ASSESSEE HAS ENTERED INTO A RECTIFICAT ION DEED ON 09/02/2005, WHICH AGAIN FALLS IN THE PERIOD RELEVAN T TO THE ASSESSMENT YEAR 2005-06. 8. THE ASSESSEE AGAIN ENTERED INTO A SUPPLEMENTAL A GREEMENT ON 21/11/2006. ON PERUSAL OF THE SAME, IT IS SEEN THAT THE SAME IS ENTERED INTO, BASICALLY TO IDENTIFY THE FLATS WHICH WOULD BE GIVEN TO THE ASSESSEE, AFTER THE BUILDING PLANS HAVE BEEN AP PROVED. THE AGREEMENT DATED 21/11/2006 CONTAINS A SPECIFIC CLAU SE AS UNDER: 'ALL OTHER TERMS AND CONDITIONS CONTAINED IN THE RE GISTERED DEVELOPMENT AGREEMENT CUM GENERAL POWER OF ATTORNEY DATED 19/10/2004 READ WITH RECTIFICATION DEED DATED 09/02 /2005 AND THE SUPPLEMENTAL AGREEMENT DATED 19/10/2004 SHALL BE IN FULL FARCE AND VIRTUE'. THE ABOVE CLAUSE CLEARLY SHOWS THAT THE DEVELOPER I S VERY MUCH BOUND BY THE DEVELOPMENT AGREEMENT DATED 19/10/2004 AND IS WILLING TO PERFORM THE DUTIES CAST ON HIM AND HAS B EEN ACTING ON THE SAME. 9. IN VIEW OF THE FACTUAL POSITION AS STATED IN PAR AS 6,7 SUPRA, IT IS CLEAR THAT THE POSSESSION OF THE FLAT WAS HANDED OV ER TO THE DEVELOPER IN TERMS OF DEVELOPMENT AGREEMENT ON 19/10/2004 AND NONE OF THE TERMS AND CONDITIONS UNDERWENT ANY MAJOR CHARGES SU BSEQUENTLY, IT HAS TO BE HELD THAT 'TRANSFER' AS CONTEMPLATED U/S. 2(47) TOOK PLACE DURING THE PERIOD RELEVANT TO AY 2005-06 ONLY. AFT ER THE DEVELOPMENT ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 11 -: AGREEMENT DATED 19/10/2004 AND RECTIFICATION DEED D ATED 09/02/2005, THE DEVELOPER HAS DEFINITELY GOT THE PL ANS PREPARED AND APPLIED FOR REQUIRED PERMISSION WHICH RESULTED IN G ETTING APPROVAL ON 14/11/2006. ACCORDINGLY, IT CANNOT BE SAID THAT THE DEVELOPER WAS NOT WILLING TO ACT/ PERFORM HIS OBLIGATION UNDER TH E AGREEMENT DATED 19/10/2004. NON-STARTING OF CONSTRUCTION CAN NOT BE A GROUND, AS IT WOULD TAKE TIME TO GET THE NECESSARY APPROVALS. THE SAME CANNOT CHANGE THE DATE OF 'TRANSFER' FOR THE PURPOSE OF CA LULATION OF CAPITAL GAINS. 9. HON'BLE AP HIGH COURT IN THE CASE OF POTLA NAGES HWAR RAO VS DCIT (ITTA NO. 245 OF 2014) HAS HELD THAT TRANSFER UNDER A DEVELOPMENT AGREEMENT TAKES PLACE ON HANDING OVER POSSESSION. C APITAL GAINS ARE CHARGEABLE TO TAX EVEN IF NO CONSIDERATION IS RECEI VED BY THE ASSESSEE. 10. ACCORDINGLY, IT IS HELD THAT THE CAPITAL GAINS AROSE DURING THE PERIOD RELEVANT TO A Y 2005-06 AND THE AO HAS RIGHT LY BROUGHT THE SHORT TERM CAPITAL GAINS TO TAX. THE ADDITION MADE BY THE AO IS CONFIRMED. THE GROUNDS OF APPEAL OF ASSESSEE RELATE D TO ABOVE ISSUE ARE DISMISSED. 5. LEARNED COUNSEL FIRST OF ALL STATED VERY FAIRLY THAT THERE IS NO DISPUTE RAISED AT THE ASSESSEES BEHEST REGARDING CORRECTNESS OF THE BOTH THE LOWER AUTHORITIES ACTION TRE ATING THE IMPUGNED DEVELOPMENT AGREEMENT DT.15-08-2004 WITH M/S.ASHWINI ABODES FOR CONSTRUCTION OF FLATS AND TO REC EIVE THE DEVELOPED AREA TO THIS EFFECT HAVING RATIO OF 44:56; PA RTY-WISE; RESPECTIVELY AS AMOUNTING TO TRANSFER U/S.2(47)(V) OF THE ACT. WE THUS AFFIRM THE LEARNER LOWER AUTHORITIES ACTION TO THIS EFFECT. 5.1. LEARNED COUNSELS NEXT ARGUMENT IS THAT BOTH THE LE ARNED LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN A DDING IMPUGNED SHORT TERM CAPITAL GAINS OF RS.51,72,920/- TH EREBY IGNORING THE CLINCHING FACT THAT SHE HAD IN FACT INDULG ED IN DEVELOPMENT OF HER LAND IN ISSUE IN THE NATURE OF ADV ENTURE IN REAL ESTATE. WE FIND NO MERIT IN THE ASSESSEES INSTANT S TAND. IT ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 12 -: EMERGES FROM A PERUSAL OF PG.16 TO 35 IN PAPER BOOK CONTAINING THE ASSESSEES DEVELOPMENT AGREEMENT THAT SH E HAD HERSELF NOT UNDERTAKEN ANY DEVELOPMENT ACTIVITY INDIC ATING THE ADVENTURE COMPONENT WHICH IN FACT HAD BEEN BORNE BY THE CONCERNED DEVELOPER ONLY. WE ALSO WISH TO HIGHLIGHT TH E FACT THAT THE PARCEL OF LAND HAS REMAINED THE SAME IN AYS.20 05-06 TO 2008-09 WHEREIN THE ASSESSEE HAS HERSELF ACCEPTED TH E LEARNED LOWER AUTHORITIES ACTION TREATING THE DEVELOP ED AREA AS THE CAPITAL ASSET ONLY GIVING RISE TO LONG TERM CAPITAL G AINS. WE RATHER NOTE THAT THE ASSESSEE HAS CLAIMED SECTION 54 DEDUCTION OF RS.69,27,420/- AY.2008-09 AS WELL. WE THUS HOLD THAT THE ASSESSEES DIVERGENT STAND IN TREATING HE RSELF AS ENGAGED IN ADVENTURE IN REAL ESTATE DEVELOPMENT IN AY .2005- 06 AND CAPITAL GAINS IN AY.2008-09 DOES NOT DESERVE TO THE CONCURRED WITH. WE THEREFORE DECLINE HER ARGUMENT THAT THE PLOT OF LAND PURCHASED ON 15-08-2004 FOLLOWED BY THE DEVELOPMENT AGREEMENT WITHIN A VERY SHORT SPAN OF TIME I.E., 19-10-2004 COULD GIVE RISE TO HUGE PROFITS IN THE NATU RE OF BUSINESS INCOME ONLY. THE ASSESSEES MAIN AS WELL A S ADDITIONAL GROUNDS FAIL ACCORDINGLY. 6. LEARNED COUNSELS THIRD ARGUMENT IS THAT BOTH THE LOWE R AUTHORITIES HAVE ERRED IN ADOPTING THE ERRONEOUS MEASUREMENTS OF THE DEVELOPED AREA AS WELL AS RATE THER EOF TO THE TUNE OF RS.500 PER SQ. FT. IN AY.2005-06 WITHOUT A NY BASIS THEREOF. THIS ARGUMENT ALSO DOES NOT FOUND TO BE CARRY ING ANY MERIT SINCE THE ASSESSEE HAD PLEADED THE VERY CORRESP ONDING GROUNDS 4 AND 5 IN HER FORM-35 BEFORE THE CIT(A) WHI CH HAD NOT EVEN BEEN PRESSED DURING THE COURSE OF LOWER APPE LLATE ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 13 -: PROCEEDINGS. WE FURTHER MAKE IT CLEAR THAT SHE HAS NOT P LEADED ANY SUCH GROUND IN THE INSTANT APPEAL AS WELL (SUPRA). WE THUS DECLINE HER INSTANT FIRST APPEAL ITA NO.795/HYD/2015 RAISING THE FOREGOING TWIN ISSUES. 7. NEXT COMES ASSESSEES APPEAL ITA NO.77/HYD/2018 F OR AY.2008-09 RAISING THE TWIN SUBSTANTIVE GROUNDS INTER ALIA THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN TREATING HERE REVISED RETURN AS NOT VALID SINCE FIL ED BELATEDLY ON 26-10-2015 THEREBY NOT GIVING CREDIT OF THE INCOME F ROM CAPITAL GAINS ASSESSED IN AY.2005-06 (SUPRA). 7.1. MR.PANDEYS VEHEMENT CONTENTION IS THAT SECTION 148/147 MECHANISM COMES INTO PLAY IN CASE OF ESCAPEM ENT OF TAXABLE INCOME AGAINST THE ASSESSEE AND FOR REVENUES BENEFIT ONLY WHEREIN A NEW CLAIM COULD NOT BE ALLOWED TO BE RAISED; AND THAT TOO, BY WAY OF FILING SUCH A BELATED REVISED R ETURN. HE QUOTED HON'BLE APEX COURTS DECISION IN (1992) [198 I TR 297] (SC) CIT VS. SUN ENGINEERING WORKS. WE FIND NO MERI T IN REVENUES STAND PER SE SINCE THE ASSESSEE HAS CLAIMED CREDIT OF THE CORRESPONDING INCOME PERTAINING TO THE DEVELOPED AREA WHICH ALREADY STOOD TAXED IN FORMER AY.2005-06 HEREIN ABOVE. HER CASE IN OTHER WORDS IS THAT VERY INCOME OUGHT NOT TO BE SUBJECTED TO DOUBLE ASSESSMENT. IT IS AN ADMITTED FACT THA T THEIR LORDSHIPS DECISION HEREIN NOWHERE DEALT WITH AN INSTANCE OF DOUBLE ADDITION PER SE AS IS THE ASSESSEES CASE BEFORE US. WE THEREFORE RESTORE THE INSTANT ISSUE BACK TO THE ASSESSI NG OFFICER TO FRAME HIS NECESSARY COMPUTATION AFRESH AFTER ENSURING THAT WHATEVER THE ASSESSEES INCOME HAS BEEN ASSESSED IN PRECEDING ASSESSMENT YEAR(S) WOULD NOT B E TREATED ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 14 -: AS HER INCOME ESCAPING ASSESSMENT PERTAINING TO AY.200 8-09. NECESSARY COMPUTATION TO THIS EFFECT SHALL FOLLOW AS PE R LAW. THIS LATTER APPEAL ITA NO.77/HYD/2018 IS ACCEPTED FO R STATISTICAL PURPOSES IN ABOVE TERMS. 8. THE ASSESSEES FORMER APPEAL ITA NO.795/HYD/2015 IS DISMISSED AND HER LATTER APPEAL ITA NO.77/HYD/2018 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERM S. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MAY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER HYDERABAD, DATED: 19-05-2021 TNMM ITA NOS. 795/HYD/2015 & 77/HYD/2018 :- 15 -: COPY TO : 1.MEENA LAHOTI, 8-1015/5/31 & 32, PRESIDENCY COLONY , OLD ALWAL, SECUNDERABAD. 2.ASST. COMMISSIONER OF INCOME TAX, CIRCLE-15(1), HYDERABAD. 3.THE INCOME TAX OFFICER, WARD-6(2), HYDERABAD. 4.CIT(APPEALS)-4, HYDERABAD. 5.CIT(APPEALS)-7, HYDERABAD. 6.CIT-6, HYDERABAD. 7.PR.CIT-7, HYDERABAD. 8.D.R. ITAT, HYDERABAD. 9.GUARD FILE.