B.V.Kodhre(HUF), Pune, V. ITO, Wd1(3), Pune,

ITA 834/PUN/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56453 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 06-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: D Y PANDIT
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revised return
• Section: 50C; 54F; 139(5); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO ACCOUNTANT MEMBER ITA NO. 834/PN/2008 (ASSTT. YEAR : 2004-05) B.V. KODRE (HUF), APPELLANT D3/9 GANGA HEIGHTS, PINGALE VASTI, MUNDHWA PUNE 411 036 PAN : AAFHK2226R VS. INCOME TAX OFFICER, RESPONDENT WARD 1(3) PMT BUILDING, SWARGATE, PUNE APPELLANT BY : SHRI D.Y. PANDIT RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 05.8.2011 DATE OF PROUNOUNCEMENT: .10.2011 ORDER PER I.C. SUDHIR JM THE REVISED GROUNDS OF APPEAL ARE AS UNDER : GROUNDS OF APPEAL: (1)(A): LD.CIT(A) FAILED TO TAKE COGNIZANCE OF THE JUDGEMEN T OF ADDITIONAL DISTRICT & ASSTT. SESSIONS JUDGE, PUNE, DECLARING T HE PARTITION OF THE PROPERTY DT. 26.6.1986 BETWEEN VITTHAL KODRE & OTHERS AS INV ALID & ASSESSEE B.V. KODRE HUF THEREFORE HAD NO LOCUS STAND TO ENTER INT O DEVELOPMENT AGREEMENT WITH DEEPGANGA ASSOCIATES AND AS SUCH SAI D AGREEMENT BECOMES VOID. (1)(B) : IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED ASSESSING OFFICER HAS ERRED IN HOLDING THAT UNDER T HE DEVELOPMENT AGREEMENT DATED 27.6.2003 TRANSFER OF PROPERTY HA S TAKEN PLACE WITHIN THE MEANING OF SEC 2(47) OF THE INCOME TAX ACT 1961 GIV ING RISE TO CAPITAL GAIN OF RS. 27,79,738/- 2 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 ALTERNATIVE GROUND: IF IT IS HELD THAT A VALID DEVELOPMENT AGREEMENT IS ENTERED INTO BETWEEN ASSESSEE HUF & M/S DEEPGANGA ASSOCIATES AS WELL AS TRANSFER OF PROPERTY HAS TAKEN PLACE FROM ASSESSEE HUF TO M/S DEEPGANGA ASSOCIATES AS PER SEC. 2(47) OF THE ACT THEN, IN THE FACTS & CIRCUMSTANCE S OF THE CASE THE LD. CIT(A) FAILED TO ACCEPT THE CONTENTION THAT THE VAL UE ADOPTED FOR STAMP DUTY BY SUB REGISTRAR WAS IN EXCESS OF MARKET VALUE OF T HE PROPERTY. HE OUGHT TO HAVE DIRECTED THE A.O. TO OBTAIN VALUA TION REPORT FROM DISTRICT VALUATION OFFICER TO FIND OUT CORRECT MARKET VALUE OF THE LAND. ALTERNATIVE GROUND NO.2: ASSUMING FOR THE SAKE OF ARGUMENT THAT A VALID TRA NSFER OF PROPERTY HAS TAKEN PLACE & VALUE ADOPTED BY SUB REGISTRAR FOR ST AMP DUTY IS APPLICABLE AS PER SEC. 50-(C ) OF THE ACT, THEN, THE LD. CIT(A) ERRED IN LAW IN ACCEPTING THE METHO D OF CALCULATION MADE BY A.O WHILE DETERMINING EXEMPTION AVAILABLE TO ASSESS EE U/S 54F OF THE ACT. SINCE ISSUE RAISED IN GROUND NO. (1)(B) GOES TO THE ROOT OF THE MATTER, WE PREFERRED TO ADJUDICATE THE SAME FIRST. GROUND NO.(1)(B) 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE HUF, AN AGRICULTURIST FAMILY ENTERED INTO DEVELOPMENT AGREEMENT ON 26.6.2003 WITH M/S. DEEPG ANGA ASSOCIATES WHEREBY THE HUF GAVE RIGHTS OF DEVELOPMENT OF SAID AGRICULTURAL LA ND TO M/S. DEEPGANGA ASSOCIATES. THE SAID DEVELOPMENT AGREEMENT WAS REGISTERED WITH SUB REGISTRAR HAWELI UNDER ARTICLE 5 (GA) OF SCHEDULE 1 OF BOMBAY STAMP ACT 1958. AS PER PRO VISIONS OF THE SAID ARTICLE 5, THE STAMP DUTY WAS PAID AT THE RATE OF 1%. IT WAS CONT ENDED THAT IF THE HUF WOULD HAVE HANDED OVER THE POSSESSION OF THE AGRICULTURAL LAND , SIMULTANEOUSLY OR ALONG WITH THE EXECUTION OF THE DEVELOPMENT AGREEMENT, STAMP DUTY OF 5% WOULD HAVE BEEN ATTRACTED UNDER ARTICLE 25, SCHEDULE 1 OF BOMBAY STAMP ACT 19 58. IT WAS POINTED OUT THAT IN CLAUSE NO. 10 OF THE AGREEMENT, IT HAS BEEN STATED THAT P OSSESSION WILL BE GIVEN TO M/S. DEEPGANGA ASSOCIATES ON RECEIPT OF FULL PAYMENT OF THE CONSIDERATION. 3 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 3. THE ASSESSEE SUBMITTED FURTHER THAT IT IS A NORM AL PRACTICE OF PERSONS CARRYING OF BUSINESS AS BUILDERS AND PROMOTERS WHO ENTERED INTO DEVELOPMENT AGREEMENT, THEN TAKE POWER OF ATTORNEY OF LAND HOLDERS FOR MAKING VARIOU S APPLICATIONS FOR OBTAINING PERMISSION FOR DEVELOPMENT OF LAND TO THE LAND REVENUE AUTHORI TIES, REVENUE COLLECTOR FOR CONVERSION OF THE AGRICULTURAL LAND INTO NON-AGRICULTURAL LAND , DEMARCATION OF LAND AREA , THEN FOR TAKING PERMISSION FROM MUNICIPAL CORPORATION. THE REASONS FOR TAKING SUCH POWER OF ATTORNEY IS FOR THE CONVENIENCE AND TIME SAVING. THUS, OBTAINING POWER OF ATTORNEY DOES NOT MEAN THE PHYSICAL POSSESSION OF THE LAND IS GIV EN TO PROMOTER/ BUILDER AT THE TIME OF DEVELOPMENT AGREEMENT. ALL SUCH APPLICATIONS MADE BEFORE THE GOVERNMENT AUTHORITY AS STATED ABOVE WERE ALWAYS IN THE NAME OF LAND OWNE R AND THE PROMOTER/BUILDER WAS GIVEN PERMISSION TO ACT ON BEHALF OF THE LAND OWNER AND F OR THAT PURPOSE TO ENTER THE AGREMMENT FOR DEVELOPMENT OF LAND. THE ASSESSEE SUBMITTED FU RTHER THAT UNDER SUB-CLAUSE (V) OF SECTION 2(47) OF THE I.T. ACT, PHYSICAL POSSESSION OF THE PROPERTY UNDER LAW IS A PRE- CONDITION TO CONSIDER IT AS A TRANSFER U/S. 2(47) . MERE PERMISSION GRANTED FOR DEVELOPMENT OF PLOT DOES NOT AMOUNT TO TAKING POSSE SSION OF THE PROPERTY U/S. 53A OF THE TRANSFER OF PROPERTY ACT AND THEREFORE, UNDER SUB-C LASUSE (V) OF SECTION 2(47) OF THE IT ACT DOES NOT AMOUNT TO TRANSFER OF LAND SO AS TO AT TRACT CAPITAL GAINS. IT WAS ALSO STATED AS UNDER, REPRODUCED IN THE FIRST APPELLATE ORDER A T PAGE NO. 4 : IT IS FURTHER STATED THAT IN THE PRESENT CASE POSS ESSION OF THE LAND EVEN TODAY IS WITH THE ASSESSEE HUF. NOT ONLY THAT THE ASSESSEE H UF IS A JOINT HOLDER OF LAND ALONGWITH OTHER 5 MEMBERS OF THE FAMILY AND THE SHA RE OF THE ASSESSEE HUF IN THE SAID LAND IS UNDIVIDED AND UNDEMARCATED. THUS EVERY MEMBER IS INTERESTED IN EVERY PART OF ENTIRE LAND SITUATED IN S.NO 34 AND WHOLE LAND BELONGS TO EVERY MEMBER. THEREFORE, THE QUESTION OF GIVING POSSESSION TO THE BUILDER M/S DEEPGANGA ASSOCIATES IS IMPROBABLY IN A SITUATION WHERE SHARE OF ASSESSEE HUF LAND IS NOT DEMARCATED, ASCERTAINED AND PARTITIONED. IN FACT T HE OTHER MEMBERS FILED A SUIT AGAINST ASSESSEE HUF IN THE DIST. COURT FOR DETERMI NATION OF RESPECTIVE SHARE OF EACH MEMBER IN LAND. THE DIST. COURT DECIDED THE C ASE AGAINST THE ASSESSEE HUF BY ALLOCATING LESSER AREA TO THE ASSESSEE HUF. THU S AREA OF LAND WHICH HAS BEEN AGREED UPON BY ASSESSEE HUF TO SELL UNDER DEVELOPME NT AGREEMENT DT. 26.6.2003 IS ALSO INCORRECT. THE ASSESSEE HUF HAS GONE IN APPEA L IN BOMBAY HIGH COURT VIDE APPEAL NO. 1119 OF 2004 WHICH IS PENDING DISPOSAL. 4 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 4. IT WAS FURTHER POINTED OUT THAT NO POSSESSION H AS BEEN GIVEN BY THE ASSESSEE HUF TO M/S. DEEPGANGA ASSOCIATES TILL TODAY. OUT OF TO TAL AGREED CONSIDERATION OF RS. 60 LAKHS, THE AMOUNT OF RS. 38,48,150/- GIVEN BY M/S. DEEPGAN GA ASSOCIATES TO ASSESSEE HUF TOWARDS PAYMENT OF DEVELOPMENT AGREEMENT, HAS TO B E TREATED AS ADVANCE AND CANNOT BE BROUGHT TO TAX UNDER CAPITAL GAIN TILL ALL THE C ONDITIONS CONTEMPLATED IN THE DEVELOPMENT AGREEMENT ARE FULFILLED AND THE POSSESSION OF THE P ROPERTY IS GIVEN TO THE BUILDER BY THE ASSESSEE HUF. 5. THE A.O DID NOT AGREE WITH THE ABOVE SUBMISSIONS OF THE ASSESSEE AND HELD THAT IT WAS A TRANSACTION AS PER CLAUSE (V) OF SECTION 2(47 ) OF THE I.T. ACT. HE NOTED THAT THE DEFINITION AS CONTEMPLATED IN SECTION 2 (47) OF THE ACT IS WIDER THAN THAT AS PER THE TRANSFER OF PROPERTY ACT 1882. AS PER CLAUSE NO. 5 OF THE DEVELOPMENT AGREEMENT EXECUTED BETWEEN THE ASSESSEE AND M/S. DEEPGANGA AS SOCIATES, ASSESSEE HAS ALLOWED THE RIGHTS TO THE SAID DEVELOPER TO AMALGAMATE, TO DIVI DE, TO PLAN AND CONSTRUCT WHICH SHOWS THAT IT WAS A TRANSACTION AS PER CLAUSE (V) OF SECT ION 2(47) OF THE ACT. THE LD CIT(A) UPHELD THE ACTION OF THE A.O. HE HELD FURTHER THAT DISPUTE ON THE SUBJECT LAND IS SUBSEQUENT DEVELOPMENT WHICH DOES NOT EFFECT THE TR ANSACTION ENTERED INTO EARLIER. 6. BEFORE US, THE LD. A.R. REITERATED SIMILAR SUB MISSIONS AS MADE BEFORE THE AUTHORITIES BELOW. HE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS : 1) GENERAL GLASS COMPANY (P.) LTD., 14 SOT 32 (BOM) 2) ITO V/S. SMT. SATYAWATI DEVI VERMA (2010), 124 ITD 467 (DEL) 3) SMT. RAJ RANI DEVI RAMNA V/S. CIT (1993), 201 ITR 1 032 (PATNA). 7. THE LD. D.R. ON THE OTHER HAND TRIED TO JUSTIFY THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT IN ITS RETURN OF INCOME, THE AS SESSEE ITSELF HAS COMPUTED THE CAPITAL GAINS BY TAKING FIGURE OF RS. 81,20,220/- ( THE VAL UE OF THE PROPERTY ADOPTED BY SUB REGISTRAR FOR THE PURPOSE OF STAMP DUTY) BY APPLYIN G PROVISIONS OF SECTION 50C OF THE ACT. 5 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 HE PLACED RELIANCE ON THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF GOETZ INDIA (INDIA) LTD., 284 ITR 323 (SC) HOLDING THAT NO CLAI M CAN BE MADE WITHOUT FILING RETURN/REVISED RETURN. THEREFORE, ADMITTING ANY CL AIM OF THE ASSESSEE WHICH IS NEITHER PREFERRED IN THE ORIGINAL RETURN NOR IN THE REVISED RETURN WOULD TANTAMOUNT TO EXTENTION OF TIME LIMIT FOR REVISING RETURN WHICH IS NOT APPLICA BLE TO THE ASSESSEE BY THE MANDATE OF PARLIAMENT AS CONTAINED IN SECTION 139(5) OF THE ACT. 8. THE LD. A.R. IN REJOINDER SUBMITTED THAT IT IS A N ESTABLISHED PROPOSITION OF LAW THAT A.O IS SUPPOSED TO MAKE JUST ASSESSMENT AND IT IS IMMATERIAL WHAT THE ASSESSEE CLAIMS. 9. CONSIDERING THE ABOVE SUBMISSIONS, AND HAVING GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND DECISIONS RELIED UPON, WE FIN D THAT SOME MATERIAL FACTS OF THE CASE HAVE NOT BEEN REBUTTED BY THE REVENUE. THE FACT OF PAYMENT OF STAMP DUTY AT THE RATE OF 1% UNDER ARTICLE (V)(GA) OF SCHEDULE 1 OF BOMBA Y STAMP ACT 1955 BY THE ASSESSEE HAS NOT BEEN REBUTTED BY THE REVENUE. THE PAYMENT OF STAMP DUTY AT THE RATE OF 1% WHICH IS REQUIRED TO BE MADE IN CASE OF REGISTRATION OF A DO CUMENT WITHOUT HANDING OVER THE POSSESSION OF THE SUBJECT IMMOVABLE PROPERTY. IF THE DOCUMENT IS REGISTERED WITH HANDING OVER THE POSSESSION OF THE PROPERTY IN TRA NSACTIONS, THE REQUIREMENT OF PAYMENT OF STAMP DUTY IS AT THE RATE OF 5% UNDER ARTICLE 25 OF SCHEDULE 1 OF BOMBAY STAMP ACT 1958. THE OTHER MATERIAL FACT REMAINED TO BE REBUT TED IN THE PRESENT CASE IS THAT AS PER CLAUSE 10 OF THE DEVELOPMENTAL AGREEMENT IT HAS B EEN MADE CLEAR THAT PROPERTY AS STATED IN CLAUSE 1 OF THE AGREEMENT WILL BE TRANSF ERRED AND PURCHASE DEED WILL BE EXECUTED ONLY AFTER THE RECEIPT OF THE PAYMENT OF ENTIRE CO NSIDERATION OF RS. 60 LAKHS AND PAYMENT OF STAMP DUTY. SECTION 2(47) OF THE INCOME TAX AC T DEFINES TRANSFER EXTENDING BEYOND THE CONCEPT AS IS GENERALLY UNDERSTOOD UNDER THE T RANSFER OF PROPERTY ACT 1882 OR IN COMMERCIAL PARLANCE. DEFINITION IS NOT CONFINED ME RELY TO SECTION 2(47), BECAUSE CONCEPT OF DEEMED TRANSFER IS SPREAD OVER AS IN SECTIONS 45 (2), (3), (4), 46(2), AND 46A , SO THAT THESE MAY ALSO BE CONSTRUED AS CHARGING SECTIONS. I T SPECIFICALLY RECOGNIZES THE DOCTRINE OF PART PERFORMANCE U/S. 53A OF THE TRANSFER OF PROPE RTY ACT IN THE DEFINITION OF TRANSFER U/S. 6 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 2 (47) OF THE I.T. ACT, APART FROM TRANSFER OF POS SESSION BY ANY AGREEMENT OR ARRANGEMENT ENABLING ENJOYMENT OF AN IMMOVABLE PROPERTY. REGIS TRATION IS PRIMA FACIE PROOF OF AN INTENTION TO TRANSFER BUT IT IS NO PROOF OF AN OP ERATIVE TRANSFER, IF THERE IS A CONDITION PRECEDENT AS TO THE PAYMENT OF CONSIDERATION. THE TRANSFER U/S. 2 (47) OF THE I.T. ACT MUST MEAN ANY EFFECTIVE CONVEYANCE OF CAPITAL ASSET TO T HE TRANSFEREE. ACCORDINGLY, WHERE THE PURPOSE HAD CLEARLY INTENDED THAT DESPITE, THE EXEC UTION AND REGISTRATION OF SALE DEED, TRANSFER BY WAY OF SALE WOULD BECOME EFFECTIVE ONLY ON PAYMENT OF THE ENTIRE SALE CONSIDERATION, IT HAD TO BE HELD THAT THERE WAS NO TRANSFER MADE, IT WAS HELD BY THE HONBLE PATNA HIGH COURT IN THE CASE OF SMT. RAJ R ANI DEVI RAMNA V/S. CIT (SUPRA). IN THAT CASE BEFORE THE HONBLE PATNA HIGH COURT, AN STIPULATION IN A SALE DEED WAS THAT ONLY ON PAYMENT OF THE ENTIRE CONSIDERATION THE REGISTR ATION RECEIPT WOULD BE HANDED OVER AND DELIVERY OF POSSESSION WOULD BE GIVEN. IT WAS HELD BY THE HONBLE HIGH COURT THAT DATE OF REGISTRATION OF SALE DEED COULD NOT BE CONSIDERED TO BE THE DATE OF TRANSFER. THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ITO V/S. SMT. SATYAWATI DEVI VERMA (SUPRA) HELD THAT THE AGREEMENT ONLY CONTAINED THE TERMS AND CON DITIONS TO BE ADHERED TO AND COMPLIED WITH AT THE TIME OF SALE OF PROPERTY BY THE VENDOR AND PURCHASER OF THE PROPERTY AT SPECIFIED FUTURE DATE WITHOUT ANY FUTURE ADDITION O R MODIFICATION OF THE CONDITIONS. AS THERE WAS NEITHER TRANSFER NOR EXTINGUISHMENT OF ANY RIG HT, VENDOR REMAINED LAWFULLY OWNER OF THE PROPERTY AND PAID ALL MUNICIPAL TAXES FROM THE YEAR OF AGREEMENT TO ALL SUBSEQUENT YEARS TILL RELEVANT DATE. THE TAX AUTHORITY RAISED THE BILLS IN THE NAME OF THE VENDOR ONLY. THE VENDOR, THUS, DID NOT ACQUIRE ANY RIGHT OF OWNE RSHIP OR POSSESSION IN THE CORPUS OR IN THE INCOME ARISING FROM SUCH PROPERTY. THE TRIBUNA L HELD FURTHER THAT SECTION 2(47)(V) OF THE I.T. ACT WOULD APPLY ONLY TO THOSE CASES, WHERE THE TRANSFEREE HAS NO PART TO PERFORM IN RESPECT OF THE CONTRACT AND HAS TAKEN POSSESSIO N OF THE PROPERTY OR ANY PART THEREOF. FURTHER, THE TRANSFEROR HAS PERFORMED OR WILLING TO PERFORM HIS PART OF THE CONTRACT AND THEN ONLY SECTION 2(47)(V) OF THE I.T. ACT WOULD HA VE APPLICATION. 10. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE O F GENERAL GLASS COMPANY (P.) LTD. V/S. DCIT (SUPRA) HELD THAT WHERE PAYMENT OF BALANC E CONSIDERATION WITHIN STIPULATED TIME 7 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 IS ESSENCE OF THE AGREEMENT OF SALE AND SUCH PAYMEN T IS NOT MADE IN TIME BY THE TRANSFEREE, SUCH CONTRACT DOES NOT CONFIRM ANY RIGH T ON THE TRANSFEREE AS ENVISAGED U/S. 53A OF THE TRANSFER OF PROPERTY ACT 1982 AND PROVIS IONS OF SEC. 2(47)(V) OF THE I.T. ACT CANNOT BE APPLIED IN SUCH A SITUATION. 11. IN THE PRESENT CASE BEFORE US AS DISCUSSED ABOV E, THE AGREEMENT IN QUESTION DOES NOT ESTABLISH THAT A TRANSACTION OF SALE OF PROPERT Y WAS COMPLETED IN TERMS OF PROVISIONS OF SECTION 2(47)(V) OF THE I.T. ACT READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT AS NEITHER THE ENTIRE CONSIDERATION WAS PAID NOR THE POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE VENDER, AND SO, THE CAPITAL GAIN WORKED OUT BY THE A.O AND ADDED TO THE INCOME OF THE ASSESSEE IN THE A.Y. WAS NOT JUSTIFI ED. THE AMOUNT RECEIVED OUT OF THE AGREED CONSIDERATION DURING THE YEAR, AT BEST CAN B E TREATED AS ADVANCE RECEIVED TOWARDS THE AGREED CONSIDERATION OF THE TRANSACTION. IT IS ALSO AN ESTABLISHED PROPOSITION OF THE LAW THAT THE A.O IS REQUIRED TO MAKE JUST AND PROPER AS SESSMENT AS PER THE LAW BASED ON THE MERITS OF THE FACTS OF THE CASE BEFORE IT. JUST AS SESSMENT DOES NOT DEPEND AS TO WHAT IS CLAIMED BY THE ASSESSEE BUT ON PROPER COMPUTATION O F INCOME DEDUCED BASED UPON THE PROVISIONS OF LAW. AN A.O. CAN NOT ALLOW THE CLAIM S OF THE ASSESSEE IF THE RELATED FACTS AND PROVISIONS OF LAW DO NOT APPROVE IT AND SIMILARLY I T IS ALSO THE DUTY OF THE A.O TO ALLOW EVEN THOSE BENEFITS ABOUT WHICH THE ASSESSEE IS IGNORANT BUT OTHERWISE LEGALLY ENTITLED TO. THE ISSUE RAISED IN GROUND NO. (1)(B) IS THUS DECIDED I N FAVOUR OF THE ASSESSEE. THE GROUND (1)(B) IS THUS ALLOWED. THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT(SUPRA) RELIED UPON BY THE AUTHORITIES BELOW I S NOT HELPFUL TO THE REVENUE AS DISTINGUISHABLE FACTS ARE THERE. THERE AFTER FILI NG OF RETURN, THE ASSESSEE BY FILING A LETTER TO THE A.O SOUGHT TO CLAIM A DEDUCTION. THE A.O DI SALLOWED IT ON THE GROUND THAT THERE WAS NO PROVISION IN THE I.T. ACT ALLOWING AN AMENDM ENT IN THE RETURN WITHOUT A REVISED RETURN. IT WAS UPHELD. IN THE PRESENT CASE BEFORE US THE QUESTION IS AS TO WHETHER TRANSFER 8 ITA NO.834/PN/ 2008 B. V. KODRE (HUF), A.Y. 2004-05 IMMOVABLE PROPERTY AS PER S. 2(47) OF THE ACT WAS T HERE TO MAKE THE ASSESSEE LIABLE TO PAY THE CAPITAL GAIN TAX. THERE IS NO ESTOPPELS A GAINST THE PROPER APPLICATION OF THE LAW. 12. IN VIEW OF THE ABOVE DECISION ON THE ISSUE RAIS ED IN GROUND NO. (1)(B), THE ISSUE RAISED IN GROUND NO. 1(A) HAS BECOME ACADEMIC ONLY, HENCE IT DOES NOT REQUIRE ADJUDICATION. THE OTHER GROUNDS ARE ALTERNATIVE GR OUNDS WHICH ALSO DO NOT REQUIRE ADJUDICATION IN VIEW OF OUR FINDING ON THE ISSUE RA ISED IN THE MAIN GROUND NO. (1)(B). 13. THE APPEAL IS ACCORDINGLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 4TH OC TOBER 2011. SD/- SD/- ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER (I.C. SU DHIR ) JUDICIAL MEMBER PUNE, DATED THE 4TH OCTOBER, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT I, PUNE 4. THE CIT- (A) I, PUNE 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE