The Dy. Commissioner of Income tax, Jammu V. M/s. The J&K Cooperative Housing Corporation Ltd, Jammu

MA 123/ASR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1367 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER ITA NO.123(ASR)/2013 (ARISING OUT OF I.T.A. NOS.495(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN :AAAFJ6591R THE DY.COMMR. OF INCOME-TAX, VS. M/S. J & K CO-OPE RATIVE HOUSING CIR.II, JAMMU. CORPORATION LTD. JAMMU. (APPLICANT) (RESPONDENT) APPELLANT BY:SH. MAHAVIR SINGH, DR RESPONDENT BY:SH. JOGINDER SINGH, CA DATE OF HEARING: 31/01/2014 DATE OF PRONOUNCEMENT:31/01/2014 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ARISING OUT OF THE ORDER OF THE TRIBUNAL PASSED IN ITA NOS. 479, 495 & 496(ASR)/2013 ALONGWITH C.O. NOS. 9, 10 & 11(ASR)/2 012 FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 DATED 27/09/20 12. THE REVENUE HAS RAISED MISC. APPLICATION WHICH FOR THE SAKE OF CONV ENIENCE IS REPRODUCED AS UNDER: IN THIS REGARD, IT IS SUBMITTED THAT THE PRESENT APPEAL IS FILED BEFORE THE HONBLE TRIBUNAL AGAINST THE ORDER OF THE LD. C IT(A) IN APPEAL NO.590/07/-08 DATED 01.07.2011 FOR THE ASSESSMENT Y EAR 2005-06 IN THE CASE OF M/S. THE J&K CO-OPERATIVE HOUSING CORPO RATION LTD; 7- B, EXTN. GANDHI NAGAR, JAMMU. IN THIS CASE, THE HON BLE TRIBUNAL MA NO.123(ASR)/2013 2 VIDE ITS ORDER PASSED IN ITA NO.479, 495 & 496(ASR) /2011 DATED 27.09.12 DISMISSED THE APPEAL WITH THE REMARKS. IN THIS REGARD, IT IS SUBMITTED THAT THE HONBLE T RIBUNAL HAS ERRED IN TAKING THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE AT RS.2,08,25,603/- INSTEAD OF RS.2,08,45,603/- IN RES PECT OF SIDHRA & SWARN VIHAR PROJECT WHICH IS CALCULATED AS UNDER: PROJECT NAME AMOUNT RECD. REFUND BALANCE. SIDHRA RS.2,34,48,407/- RS.65,64,430/- RS.1,68,83,9 77/- SWARN VIHAR RS.54,64,630/- RS.15,03,004/- RS.39,61, 626/- TOTAL - -- RS.2,08,45,603/- IN VIEW OF THE ABOVE, THE HONBLE TRIBUNAL HAS WR ONGLY CALCULATED THE VALUE OF CONSIDERATION RECEIVED IN T HE ABOVE MENTIONED PROJECTS. FURTHER, IN THIS CASE, THE ASSESSEE HAS RECEIVED T RANSFER FEE OF RS.2,86,000/- ON THE SALE IN RESPECT OF SIDHRA & SW ARN VIHAR PROJECTS AND THE DEPARTMENT HAS TAKEN THIS AMOUNT AS INCOME IN THE COMPUTATION SHEET. HOWEVER, THE LD. CIT(A) HAS ALSO APPLIED NET PROFIT OF 3% ON THE TRANSFER FEE OF RS.2,86,000/-. ON THIS ISSUE, THE DEPARTMENT HAS RAISED GROUND OF APPEAL BEFORE THE H ONBLE TRIBUNAL WHICH IS AS UNDER: ON THE FACTS AND CIRCUMSTANCES WHETHER THE LD. CI T(A) WAS RIGHTLY IN APPLYING NET PROFIT OF 3% ON TRANSFER FEE RECEIVED ON SALE OF PLOTS/SHOPS, THE ENTIRE AMOUNT OF WHICH WAS REQU IRED TO BE TAXED. 2. THE LD. JCIT(DR), MR. MAHAVIR, SINGH READ THE MI SC. APPLICATION AND ARGUED THAT THERE IS A MISTAKE APPARENT FROM R ECORD. 3. THE LD. COUNSEL FOR THE ASSESSEE, MR. JOGINDER S INGH, CA, ON THE OTHER HAND, ARGUED THAT THERE IS NO MISTAKE APPAREN T FROM RECORD AND THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE HAS B EEN MENTIONED BY THE ITAT, AMRITSAR BENCH, IN PARA 15.3 OF ITS ORDER A T RS.2,08,25,603/- EXACTLY MA NO.123(ASR)/2013 3 AS MENTIONED BY THE LD. CIT(A) AT PAGE 7 OF HIS OR DER AND THERE IS NO MISTAKE APPARENT FROM RECORD AND THEREFORE, PRAYED TO DISMISS THE MISC. APPLICATION FILED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FIGURE OF RS.2,08,25,603/- HAS BEEN MENTIONED IN OUR ORDER IN PARA 15.3 IS AS PER ORDER OF THE LD. CIT(A) AT PAGE 7 WHER E NET PROFIT RATE OF 3% HAS BEEN ADOPTED BY THE AO HAS BEEN MENTIONED TO BE APP LIED AND ACCORDINGLY, WE FIND NO MISTAKE APPARENT FROM RECORD. ACCORDING LY, THE MISCELLANEOUS APPLICATION BY THE REVENUE IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT AND THEREFORE, THE SAME IS DISMISSED. 5. IN THE RESULT, THE APPEAL M.A.NO.123(ASR)/2013FI LED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST JANUARY, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31ST JANUARY, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. THE J & K COOPERATIVE HOUSING COR PN LTD. JAMMU. 2. THE DCIT, CIR.2, JAMMU 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR)