N.D.Georgeo Polous, CHENNAI V. ITO, CHENNAI

ITA 886/CHNY/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5040 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G SITHARAMAN
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !', $ '% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.886/CHNY/2016 ' (' / ASSESSMENT YEAR : 2011-12 M/S N.D. GEORGEO POLOUS, NO.69, SPUR TANK ROAD, CHETPET, CHENNAI - 600 031. PAN : AAAFG 3148 B V. THE INCOME TAX OFFICER, NON CORPORATE WARD 3(4), CHENNAI. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI G. SITHARAMAN, CA ,-*+ . / / RESPONDENT BY : SHRI SRIDHAR DORA, JCIT 0 . 1$ / DATE OF HEARING : 13.05.2019 23( . 1$ / DATE OF PRONOUNCEMENT : 31.05.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-4, CHENNAI , DATED 10.03.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SHRI G. SITHARAMAN, THE LD. REPRESENTATIVE FOR T HE ASSESSEE, SUBMITTED THAT THE ASSESSEE EXECUTED A LEASE DEED I N FAVOUR OF SRI 2 I.T.A. NO.886/CHNY/16 RAVISHANKAR VIDYA MANDIR TRUST FOR 998 YEARS ON 28. 12.2007. ACCORDING TO THE LD. REPRESENTATIVE, THE SAID LEAS DEED WAS PRESENTED BEFORE SUB-REGISTRAR, MUMBAI FOR REGISTRA TION ON 28.12.2007. HOWEVER, THE REGISTRATION AUTHORITIES ESTIMATED THE LEASE AMOUNT FOR THE PURPOSE OF STAMP DUTY AT 2,10,93,000/-. ACCORDING TO THE LD. REPRESENTATIVE, THE DEFICIENT STAMP DUTY WAS PAID BY SRI RAVISHANKAR VIDYA MANDIR TRUST ON 06.04 .2010. IT APPEARS THAT THE ASSESSING OFFICER RECEIVED INFORMA TION WITH REGARD TO REGISTRATION OF DOCUMENT DURING THE YEAR UNDER C ONSIDERATION ON 23.07.2010. ACCORDINGLY, THE ASSESSING OFFICER FOU ND THAT THERE WAS CAPITAL GAIN WHICH IS LIABLE FOR TAX BY TAKING THE SALE CONSIDERATION AT 2,10,93,000/-. REFERRING TO THE COPY OF LEASE DEED, WHICH IS AVAILABLE AT PAGE 33 OF PAPER-BOOK, THE LD. REPRESENTATIVE SUBMITTED THAT WHAT WAS RECEIVED BY THE ASSESSEE AS A CONSIDERATION FOR LEASE IS ONLY 50,00,000/-. THE STAMP AUTHORITIES ESTIMATED THE VALUE AT 2,10,93,000/-. ACCORDING TO THE LD. REPRESENTATIVE, THE TRANSFER TOOK PLACE ON 28.1 2.2007 ON WHICH DATE THE LEASE DEED WAS EXECUTED AND THE POSSESSION OF THE PROPERTY WAS ALSO HANDED OVER. THEREFORE, ACCORDIN G TO THE LD. REPRESENTATIVE, THE CAPITAL GAIN, IF ANY, HAS TO BE ASSESSED IN THE 3 I.T.A. NO.886/CHNY/16 ASSESSMENT YEAR 2008-09, HENCE, THE ASSESSING OFFIC ER IS NOT JUSTIFIED IN LEVYING CAPITAL GAIN TAX DURING THE YE AR UNDER CONSIDERATION. 3. ON THE CONTRARY, SHRI SRIDHAR DORA, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSING OFFICE R RECEIVED AIR INFORMATION REGARDING THE TRANSACTION OF 2,10,93,000/- ON 23.07.2010. THEREFORE, ACCORDING TO THE LD. D.R., T HE SAID INFORMATION FALLS IN THE FINANCIAL YEAR 2010-11 AND THE RELEVANT ASSESSMENT YEAR IS 2011-12, THEREFORE, THE ASSESSIN G OFFICER HAS RIGHTLY LEVIED CAPITAL GAIN DURING THE YEAR UNDER C ONSIDERATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE LEASE DEED WAS EXECUTED ON 28.12.2 007 FOR A TOTAL CONSIDERATION OF 50,00,000/-. THE DOCUMENT WAS PRESENTED FOR REGISTRATION. THE REGISTRATION AUTHORITIES FOUND T HAT THE LEASE WAS NOT PROPERLY VALUED. THEREFORE, THEY ESTIMATED THE LEASE AMOUNT AT 2,10,93,000/- AND THE LESSEE HAS PAID THE STAMP DUT Y ON 06.04.2010 AS PER THE ENDORSEMENT MADE BY THE REGIS TRATION AUTHORITIES ON THE LEASE DEED, A COPY OF WHICH IS A VAILABLE AT PAGE 4 I.T.A. NO.886/CHNY/16 34 OF THE PAPER-BOOK. ONCE THE DOCUMENT WAS REGIST ERED, IT IS WELL SETTLED PRINCIPLES OF LAW THAT THE DATE OF DOCUMENT WOULD BE RELATED BACK TO THE DATE OF EXECUTION. IN THIS CASE, ADMIT TEDLY, THE DOCUMENT WAS EXECUTED ON 28.12.2007. THEREFORE, EV EN THE FORMALITIES OF REGISTRATION WERE COMPLETED AFTER PA YMENT OF DEFICIENT STAMP DUTY, THIS TRIBUNAL IS OF THE CONSIDERED OPIN ION THAT THE TRANSACTION TOOK PLACE ON 28.12.2007 WHICH FALLS IN THE ASSESSMENT YEAR 2008-09. THEREFORE, THE CAPITAL GAIN, IF ANY, HAS TO BE ASSESSED ONLY IN THE ASSESSMENT YEAR 2008-09 AND NO T DEFINITELY DURING THE YEAR UNDER CONSIDERATION, I.E. 2011-12. IN VIEW OF THE ABOVE, WE ARE UNABLE TO UPHOLD THE ORDERS OF THE LO WER AUTHORITIES. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW A RE SET ASIDE AND THE CAPITAL GAIN LEVIED FOR THE ASSESSMENT YEAR 201 1-12 IS DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 31 ST MAY, 2019 AT CHENNAI. SD/- SD/- (. !') ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 31 ST MAY, 2019. KRI. 5 I.T.A. NO.886/CHNY/16 . ,167 87(1 /COPY TO: 1. *+/ APPELLANT 2. ,-*+/ RESPONDENT 3. 0 91 () /CIT(A)-4, CHENNAI 4. PRINCIPAL CIT-5, CHENNAI 5. 7: ,1 /DR 6. ;' < /GF.