Income Tax Officer, Patiala V. Sh.Ajaib Singh Mukhmailpuria, Patiala

ITA 870/CHANDI/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6799 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 05-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT SHRI RISHABH KAPOOR
• Keywords: Capital asset; Cost of acquisition
• Section: 54F; 147; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.870/CHD/2015 (ASSESSMENT YEAR : 2007-08) THE INCOME TAX OFFICER, VS. SHRI AJAIB SINGH MUKH MAILPURIA, WARD-2, PATIALA. KOTHI NO.1, VIDYA NAGAR (KILER KHERI), PUNJAB UNIVERSITY, PATIALA. PAN: AFHPM5728H (APPELLANT) (RESPONDENT) APPELLANT BY : SMT.CHANDER KANTA, DR RESPONDENT BY : SHRI ROHIT ON BEHALF OF SHRI RISHABH KAPOOR DATE OF HEARING : 14.09.2017 DATE OF PRONOUNCEMENT : 28.09. 2017 ORDER PER ANNAPURNA GUPTA, A.M. : THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS) , PATIALA (HEREINAFTER REFERRED TO AS CIT(APPEALS) DATED 23.9.2015 RELATING TO ASSESSMENT YEAR 2007-08. 2. AT THE OUTSET, IT MAY BE STATED THAT THE LD. COU NSEL FOR ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT OF TH E CASE ON THE GROUND THAT HE WAS UNWELL. THE SAME WAS REJECT ED FOR THE REASON THAT EVEN ON THE IMMEDIATELY PRECEDING FOUR OCCASIONS ,THE CASE HAD BEEN ADJOURNED ON THE REQUE ST OF THE LD. COUNSEL FOR ASSESSEE ONLY AND IT APPEARED T HAT THE ASSESSEE WAS NOT SERIOUS IN PURSUING THE APPEAL. 2 3. THE ONLY GRIEVANCE OF THE REVENUE IN THE PRESENT APPEAL IS DELETION OF ADDITION MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAINS AMOUNTING TO RS.1,82,25,000/- DUE TO PURPORTED TRANSFER OF PLOT OF LAND OWNED BY THE ASSESSEE. 4. BRIEF FACTS OF THE CASE AS NOTED FROM THE ASSESS MENT ORDER ARE THAT THE ASSESSEE IS A MEMBER OF A HOUSIN G SOCIETY NAMELY 'THE PUNJABI CO-OP. HOUSE BUILDING S OCIETY LTD., MOHALI' BEING THE OWNER OF A PLOT MEASURING 5 00 SQ.YARDS IN THE SOCIETY. THE SAID SOCIETY ENTERED I NTO A TRIPARTITE JOINT DEVELOPMENT AGREEMENT WITH M/S HAS H BUILDERS PVT. LTD., CHANDIGARH AND M/S TATA HOUSING DEVELOPMENT CO. MUMBAI. BY VIRTUE OF THE TRIPARTITE AGREEMENT, IT WAS AGREED UPON AMONG THESE PARTIES T HAT EACH MEMBER OF THE PUNJABI CO-OP. HOUSE BUILDING SO CIETY LTD. WOULD RECEIVE CONSIDERATION IN MONEY AND IN KI ND IN LIEU OF SURRENDER OF PLOTS OWNED BY THEM. AS PER TH E AGREEMENT, A MEMBER OWNING A PLOT OF 500 SQ. YARDS, WOULD RECEIVE A FURNISHED FLAT OF 2250 SQ.FT. TO BE CONST RUCTED BY M/S TATA HOUSING DEVELOPMENT CO. LTD. ALONGWITH RS.82,50,000/- AS MONETARY CONSIDERATION. FURTHER I T WAS NOTED THAT THE INDIVIDUAL MEMBERS OF SOCIETY OWNING 500 SQ.YDS. LAND IN THE SOCIETY HAD RECEIVED RS.33.00 L ACS EACH AS PART PAYMENT OF ABOVE SAID CONSIDERATION. THE AS SESSEE ALSO BEING A MEMBER OF THE PUNJABI CO-OP. HOUSING BUILDING SOCIETY LTD., HAD RECEIVED RS.15.00 LACS ON 24.02.2007 AND RS.18.00 LACS ON 30.4.2007 THROUGH 3 CHEQUE NOS. 803198 AND 312363 RESPECTIVELY. AS PER THE AO, THE EXECUTION OF SALE DEED AND RECEIPT OF PART CONSIDERATION CLEARLY GAVE RISE TO INCOME IN THE FO RM OF CAPITAL GAIN IN THE HANDS OF THE ASSESSEE FOR THE Y EAR UNDER CONSIDERATION AND THE ASSESSEE HAVING NOT SHOWN ANY CAPITAL GAIN, AS SUCH THE CAPITAL GAINS ACCRUING AS A RESULT OF MONETARY BENEFITS AND CONSIDERATION IN KIND H AD ESCAPED ASSESSMENT. ACCORDINGLY, PROCEEDINGS UNDE R SECTION 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), WERE INITIATED IN THE CASE OF THE ASSESSEE. THE ASS ESSING OFFICER THEREAFTER SENT MANY NOTICES TO THE ASSESSE E AS REPRODUCED IN PAGE 3 TO PAGE 19 OF THE ASSESSMENT O RDER. THE ASSESSING OFFICER HAD SPECIFICALLY NOTED THAT T HE 148 NOTICE WAS DULY SERVED ON THE ASSESSEE. THE ASSESSI NG OFFICER FURTHER NOTED THAT THE HOUSING SOCIETY CONS ISTING OF 95 PRESENT AND EX MLA'S OF PUNJAB LEGISLATIVE ASSEM BLY WAS THE OWNER OF 21.2 ACRES OF LAND IN VILLAGE KANS AL, DISTT. MOHALI. BY VIRTUE OF THE TRIPARTITE JDA AGREEMENT A S MENTIONED BEFORE/ABOVE IT WAS AGREED UPON AMONG THE SE PARTIES THAT THE SOCIETY OWNER OF 21.2 ACRE LAND, W OULD TRANSFER ITS LAND TO M/S TATA HOUSING DEVELOPMENT C O.LTD. IN LIEU OF MONETARY CONSIDERATION AND PLOT. EACH ME MBER HAVING PLOT OF 500 SQ. YD. IN THE SOCIETY WAS TO RE CEIVE RS.82,50,000/- AND ONE FURNISHED FLAT MEASURING 225 0 SQ. FT. THE COST OF EACH FURNISHED FLAT WAS TO BE RS.1,01,25,000/- @ RS.4500/- PER SQ.FT. FURTHER, TH AT THE INDIVIDUAL MEMBERS OF THE SOCIETY OWNING 500 SQ. YA RDS HAD RECEIVED RS.33.00 LACS TILL DATE. AS THE ASSESSEE W AS A 4 MEMBER OF THE SOCIETY HAVING A PLOT OF 500 SQ.YDS., HE WAS, THEREFORE, TO RECEIVE THE FLAT COSTING RS.1,01,25,0 00/- AND CASH OF RS.82,50,000/-. THE ASSESSING OFFICER THERE AFTER DISCUSSED THE JOINT DEVELOPMENT AGREEMENT AND NOTED THAT THE POSSESSION OF THE PROPERTY WAS HANDED OVER TO T HDC AND THE RIGHTS IN THE PROPERTY WERE ALSO ASSIGNED F OR DEVELOPMENT OF THE PROPERTY. AS PER PARA 2.1 OF THE AGREEMENT THE OWNER GRANTED AND ASSIGNED THE DEVELO PMENT RIGHTS IN THE PROPERTY, IRREVOCABLY AND IN PERPETUI TY, TO THDC AND THE ALLOTMENT RIGHTS OF THE PLOTS WERE SURRENDERED VIDE RESOLUTIONS DATED 4.10.2007 AND 25.2.2007. 5. THE ASSESSING OFFICER NOTED THAT IT WAS CLEARLY MENTIONED IN PARA 2.1 OF THE SAID AGREEMENT THAT TH E OWNER IRREVOCABLY AND UNEQUIVOCALLY GRANTED AND ASSIGNED IN PERPETUITY ALL ITS RIGHTS TO DEVELOP, CONSTRUCT, MO RTGAGE, LEASE, LICENSE, SELL AND TRANSFER THE PROPERTY ALON G WITH ANY AND ALL THE CONSTRUCTIONS, PREMISES, HEREDITAMENTS, EASEMENTS, TREES THEREON IN FAVOUR OF THDC FOR THE PURPOSE OF DEVELOPMENT, CONSTRUCTION, MORTGAGE, SALE, TRANS FER, LEASE, LICENSE AND/OR EXPLOITATION FOR FULL UTILIZA TION OF THE PROPERTY (RIGHTS') AND TO EXECUTE ALL THE DOCUMENT S NECESSARY TO CARRYOUT, FACILITATE AND ENFORCE THE R IGHTS IN THE PROPERTY INCLUDING TO EXECUTE LEASE AGREEMENT, LICENSE AGREEMENTS, CONSTRUCTION CONTRACTS, SUPPLIER CONTRA CTS, AGREEMENT FOR SALE, CONVEYANCE, MORTGAGE DEEDS, FIN ANCE DOCUMENTS AND ALL DOCUMENTS AND AGREEMENTS NECESSAR Y TO 5 CREATE AND REGISTER THE MORTAGE, CONVEYANCE, LEASE DEEDS, LICENSE AGREEMENT, POWER OF ATTORNEYS, AFFIDAVITS, DECLARATIONS, INDEMNITIES AND ALL SUCH OTHER DOCUME NTS, LETTERS AS MAY BE NECESSARY TO CARRY OUT, FACILITAT E AND ENFORCE THE RIGHTS AND TO REGISTER THE SAME WITH TH E REVENUE/COMPETENT AUTHORITIES AND TO APPEAL ON YOUR BEHALF BEFORE ALL AUTHORITIES, STATUTORY OR OTHERWISE, AND BEFORE ANY COURT OF LAW (THE DEVELOPMENT RIGHTS). THE OWNE R HANDED OVER THE ORIGINAL TITLE DEEDS OF THE PROPERT Y AS MENTIONED IN THE LIST ANNEXED THERETO AND MARKED AS ANNEXURE IT AND PHYSICAL VACANT POSSESSION OF THE P ROPERTY HAS BEEN HANDED OVER TO THDC SIMULTANEOUS FOR THE EXECUTION AND REGISTRATION OF THIS AGREEMENT TO DEV ELOP THE SAME AS SET HEREIN. 6. SINCE THE ASSESSEE DID NOT COOPERATE DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WENT ON TO FRAME THE ASSESSMENT ORDER BASED ON THE FACTS AND INFORMATION AVAILABLE ON RECORD. THE ASSESSING OFFI CER HELD THAT THE MEMBERS HAD ALLOTMENT RIGHTS IN IDENTIFIED DEMARCATED PARCEL OF LAND IN THE SOCIETY AND SURREN DERED THEIR ALLOTMENT RIGHTS AND THE SOCIETY ON BEHALF OF THE MEMBERS ENTERED INTO THE JOINT DEVELOPMENT AGREEMEN T. THE ASSESSEE RECEIVED PART OF THE TOTAL CONSIDERATION D URING THE FINANCIAL YEAR IRRESPECTIVE OF THE FACT AS TO WHICH LAND WAS REGISTERED. AFTER SURRENDER OF ALLOTMENT RIGHTS ENT IRE PROPERTY WAS TAKEN OVER AS ONE AND PART OF ENTIRE CONSIDERATION WAS DISTRIBUTED AMONGST ALL THE MEMBE RS AS 6 PER PAYMENT SCHEDULE DESCRIBED IN THE JOINT DEVELOP MENT AGREEMENT. THE ASSESSING OFFICER FURTHER HELD THAT THE ACTUAL DATE OF THE RECEIPT OF CONSIDERATION WOULD N OT DECIDE THE YEAR OF TAXABILITY OF THE CAPITAL GAINS TAX FOR THE FACT THAT AS PER SECTION 45, PROFIT UNDER THE HEAD 'CAPI TAL GAINS' WOULD BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH TRANSFER TOOK PLACE. THE AO HELD THAT THE CAP ITAL GAIN AROSE FROM THE FACT THAT IT WAS CASE OF TRANSFER OF CAPITAL ASSET GENERALLY AND ALSO IN VIEW OF SECTION 2(47)(I I), 2(47(V) AND 2(47)(VI). THE AO HELD THAT THIS WAS ALSO A CAS E OF TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSIO N OF AN 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. THE AS SESSING OFFICER ALSO RELIED ON THE CASE OF CIT VS. K. JEELA NI BASHA, 256 ITR 282 (MAD.). FURTHER, THE FACTS OF THE CASE AND THE TERMS OF THE JOINT DEVELOPMENT AGREEMENT REVEALED T HAT JOINT DEVELOPMENT AGREEMENT ENABLED THE PASSING OF DOMAIN AND CONTROL OF THE PROPERTY BY GRANT OF IRREVOCABLE AUT HORITY AND OR LICENSE. THUS, THE AO HELD THAT THE DATE OF THE AGREEMENT OF DEVELOPMENT WOULD CONSTITUTE THE DATE OF TRANSFE R OF THE CAPITAL ASSET. RELIANCE WAS PLACED ON CHATURBHUJ DWARIKADAS KAPADIA VS. CIT 260 ITR 491 (BOM.). THE ASSESSING OFFICER THEREFORE COMPUTED THE VALUE OF CONSIDERATION AT RS.1,83,75,000/- AND AFTER GIVI NG CREDIT OF COST OF ACQUISITION TO THE TUNE OF RS.1.5 LACS, LONG TERM CAPITAL GAINS WAS WORKED OUT AT RS. 1,82,25,000/-. 7 7. AGGRIEVED BY THE SAME, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(APPEALS), WHO DELETED T HE ENTIRE ADDITION MADE, FOLLOWING THE JUDGMENT OF THE HON'BL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF C.S. ATW AL VS. CIT, LUDHIANA AND ANOTHER IN ITA NO.200 OF 2013 (O &M) DT.22-07-2015. 8. AGGRIEVED BY THE SAME, THE REVENUE HAS NOW COME UP IN APPEAL RAISING THE FOLLOWING GROUNDS: 1. THAT THE ID. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE ADDITION OF RS. 1,82,25,000/- MADE ON ACCOUNT OF CAPITAL GAINS IGNORING THE PRINCIPLE LAI D DOWN IN THE CASE OF CHATURBHUJ DWARIKADAS KAPADIA V. CIT REPORTED AT 260 ITR 491 (BOM). 2. THAT THE ID. CIT(A) HAS ERRED IN NOT CONSIDERING THE 'INCLUSIVE' DEFINITION OF TRANSFER U/S 2(47) (II) AN D (VI) OF INCOME TAX ACT AND AS HELD IN THE APEX COURT JUDGEM ENT IN SH. SANJEEV LAI ETC. VS. CIT & ANOTHER IN CIVIL APPE AL NO. 5899-5900 OF 2015 IN WHICH AN 'AGREEMENT TO SELL ' IS ENOUGH TO HOLD THAT U/S 2(47)(II) THERE IS AN EXTINGUISHM ENT OF A RIGHT. 3. THAT THE ID. CIT(A) HAS ERRED BOTH IN FACTS AND IN LAW IN HOLDING THAT UNLESS RIGHT TO RECEIVE HAS BEEN ACCRU ED, INCOME IS NOT TAXABLE EVEN UNDER THE HEAD 'CAPITAL GAINS' IGNORING THE PROVISIONS OF SECTION 45 READ W ITH SECTION 48 OF INCOME TAX ACT, 1961. 4. THAT THE ID. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW BY FAILING TO APPRECIATE THAT THE ASSESSEE HAD PAID / UNDERTOOK TO PAY TAX ON CAPITAL GAINS ACCRUING TO H IM THUS ADMITTING THAT THE TRANSACTION WAS OF A NATURE WHER E CAPITAL GAIN WAS EXIGIBLE. 5. IT IS PRAYED THAT THE ORDER OF LD. CIT(A) BE SET ASIDE AND THAT OF THE AO RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND FI NALLY DISPOSED OF. 8 9. BEFORE US, THE LD. DR RELIED UPON THE ORDER OF T HE ASSESSING OFFICER THOUGH AT THE SAME TIME, THE LD. DR FAIRLY CONCEDED THAT THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF C.S.ATWAL (SUPRA). 10. WE HAVE HEARD THE CONTENTIONS OF THE LD. DR AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND ALS O THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF C.S.ATWAL (SUPRA). WE FIND NO INFIRMIT Y IN THE ORDER OF THE LD.CIT(APPEALS) TO THE EXTENT IT HAS H ELD THAT THE ISSUE IS IDENTICAL AND, THEREFORE, SQUARELY COV ERED BY THE DECISION IN THE CASE OF C.S.ATWAL (SUPRA). EVE N THE LD. DR HAS CONCEDED ON THIS POINT AND THUS THERE IS NO DISPUTE WITH REGARDS TO THE FACTS OF BOTH THE CASES BEING I DENTICAL. BUT AT THE SAME TIME WE FIND THAT THE LD.CIT(APPEAL S) HAS NOT CORRECTLY APPLIED THE PROPOSITION LAID DOWN BY THE HON'BLE HIGH COURT, IN THE FACTS OF THE CASE BEFORE US. THE HON'BLE HIGH COURT IN THE CASE OF C.S.ATWAL (SUPRA) HAD SUMMARIZED ITS CONCLUSION ON THE ISSUE OF TAXABILIT Y OF CAPITAL GAINS EARNED ON TRANSFER OF PLOT VIDE THE J OINT DEVELOPMENT AGREEMENT ENTERED INTO, WHICH IS REPROD UCED IN THE ORDER OF THE LD.CIT(APPEALS) ALSO AT PARA 4.5 A S UNDER: 4.5 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE COUNSEL OF THE APPELLANT AND THE ASSESSMENT ORDER. T HE CASE MENTIONED BY THE COUNSEL OF THE APPELLANT OF SH. C.S. ATWAL VS. CIT, LUDHIANA DECIDED BY THE HON'BLE PUNJAB & HARYAN A HIGH COURT ON 22.07.2015 IS HAVING SIMILAR FACTS WITH THA T OF THE CURRENT CASE. ON FACT, APPELLANT IS ALSO A MEMBER O F SAME 9 SOCIETY. THE RELEVANT PORTION OF THE JUDGMENT OF HO N'BLE HIGH COURT IN THE CASE OF C.S. ATWAL VS. CIT, LUDHIANA IS REPRODUCED AS UNDER:- ' 46. WE SUMMARISE OUR CONCLUSIONS AS UNDER:- 1. PERUSAL OF THE IDA DATED 25.02.2007 READ WITH SALE DEEDS DATED 02.03.2007 AND 25.04.2007 IN RESPECT OF 3.08 ACRES AND 4.62 ACRES RESPECTIVELY WOULD REVEAL THAT THE PARTI ES HAD AGREED FOR PRO-RATA TRANSFER OF LAND. 2. NO POSSESSION HAD BEEN GIVEN BY THE TRANSFEROR TO T HE TRANSFEREE OF THE ENTIRE LAND IN PART PERFORMANCE OF JDA DATED 25.02.2007 SO AS TO FALL WITHIN THE DOMAIN OF SECTI ON 53A OF 1882 ACT. 3. THE POSSESSION DELIVERED, IF AT ALL, WAS AS A LICENS EE FOR THE DEVELOPMENT OF THE PROPERTY AND NOT IN THE CAPACITY OF A TRANSFEREE. 4. FURTHER SECTION 53A OF 1882 ACT, BY INCORPORATION, STOOD EMBODIED IN SECTION 2(47)(V) OF THE ACT AND ALL THE ESSENTIAL INGREDIENTS OF SECTION 53A OF 1882 ACT WERE REQUIRE D TO BE FULFILLED. IN THE ABSENCE OF REGISTRATION OF JDA DATED 25.02.2007 HAVING BEEN EXECUTED AFTER 24.09.2001, THE AGREEMEN T DOES NOT FALL UNDER SECTION 53A OF 1882 ACT AND CONSEQUENTLY SECTION 2(47)(V) OF THE ACT DOES NOT APPLY. 5. IT WAS SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSE E- APPELLANT THAT WHATEVER AMOUNT WAS RECEIVED FROM TH E DEVELOPER, CAPITAL GAINS TAX HAS ALREADY BEEN PAID ON THAT AND SALE DEEDS HAVE ALSO BEEN EXECUTED. IN VIEW OF CAN CELLATION OF JDA DATED 25.02.2007, NO FURTHER AMOUNT HAS BEEN RE CEIVED AND NO ACTION THEREON HAS BEEN TAKEN. IT WAS URGED THAT AS AND WHEN ANY AMOUNT IS RECEIVED CAPITAL GAINS TAX S HALL BE DISCHARGED THEREON IN ACCORDANCE WITH LAW. IN VIEW OF THE AFORESAID STAND, WHILE DISPOSING OF THE APPEALS, WE O BSERVE THAT THE ASSESSEE APPELLANTS SHALL REMAIN BOUND BY THEIR SAID STAND. 6. THE ISSUE OF EXIGIBILITY TO CAPITAL GAINS TAX HAVIN G BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THE QUESTION OF EXEMPTION 10 UNDER SECTION 54F OF THE ACT WOULD NOT SURVIVE ANY LONGER AND HAS BEEN RENDERED ACADEMIC. 7. THE TRIBUNAL AND THE AUTHORITIES BELOW WERE NOT RIG HT IN HOLDING THE ASSESSEE-APPELLANT TO BE LIABLE TO CAPITAL G AINS TAX IN RESPECT OR REMAINING LAND MEASURING 13.5 ACRES FOR WH ICH NO CONSIDERATION HAD BEEN RECEIVED AND WHICH STOOD CANCELLED AND INCAPABLE OF PERFORMANCE AT PRESENT DUE TO VARIOUS ORDER PASSED BY THE SUPREME COURT AND THE HIGH COURT IN P ILS. THEREFORE, THE APPEALS ARE ALLOWED. 47. CONSEQUENTLY, THE SUBSTANTIAL QUESTIONS OF LAW A S REPRODUCED INTEREST HE BEGINNING OF THE JUDGMENT AR E ANSWERED IN THE MANNER INDICATED HEREINBEFORE AND THE APPEAL S OF THE ASSESSEE ARE DISPOSED OF ACCORDINGLY. 11. AS PER THE ABOVE CONCLUSION OF THE HON'BLE HIGH COURT THE ASSESSEE WAS LIABLE TO CAPITAL GAINS ONLY ON TH E AMOUNT ALREADY RECEIVED BY IT ON ACCOUNT OF SALE DEEDS EXE CUTED VIS- -VIS PORTION OF LAND OWNED BY THE ASSESSEE. THE S AID FINDING OF THE HON'BLE HIGH COURT IS AT PARA 5 & 7 OF THE CONCLUSION. IN THE PRESENT CASE, WE FIND THAT THOU GH THE ADMITTED FACT IS THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.15 LACS DURING THE YEAR ON ACCOUNT OF SALE AG REEMENT EXECUTED, NO AMOUNT OF CAPITAL GAIN WAS OFFERED FOR TAXATION. IN VIEW OF THE JUDGMENT OF THE HON'BLE H IGH COURT IN THE CASE OF C.S.ATWAL (SUPRA), THE SAID AMOUNT W AS TO BE CONSIDERED FOR THE PURPOSE OF COMPUTING THE CAPITAL GAINS EARNED DURING THE YEAR. WE, THEREFORE, HOLD THAT T HE ASSESSEE IS EXIGIBLE TO TAX TO THE EXTENT OF AMOUNT RECEIVED BY IT DURING THE YEAR FROM THE DEVELOPER, WHILE FOR THE BALANCE PORTION OF LAND FOR WHICH NO CONSIDERATION HAS BEEN RECEIVED, WE HOLD THAT THE ORDER OF THE LD.CIT(APPE ALS) 11 DELETING THE CAPITAL GAINS COMPUTED BY THE ASSESSIN G OFFICER ON THAT PORTION IS UPHELD. 12. IN THE RESULT, THE APPEAL OF THE REVENUE, THERE FORE, IS PARTLY ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28THE SEPTEMBER, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH