ACIT Non Corporate Circle 3, CHENNAI V. Shafiq Mohamed Shah, CHENNAI

MA 275/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3236 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-08-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 06-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital Gains
• Section: 13

Judgement Text

आयकर अपीलीय अिधकरण, ’बी’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी जी. मंजुनाथा, लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member M.P. No. 275/Chny/2019 [In I.T.A. No.2621/Chny/2017] Assessment Years: 2014-15 The Assistant Commissioner of Income Tax, Non Corporate Circle 3 Chennai 600 034. Vs. Shri Shafiq Mohamed Shah, 33 (New No. 60), Veerabadran Street, Nungambakkam, Chennai 600 034. [PAN:AAJPS 3460P] (Petitioner) (ŮȑथŎ/Respondent) Petitioner by : Shri AR V Sreenivasan, Addl. CIT ŮȑथŎ की ओर से/Respondent by : Shri D. Anand, Advocate सुनवाई की तारीख/ Date of hearing : 05.08.2022 घोषणा की तारीख /Date of Pronouncement : 12.08.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: By means of present Miscellaneous Petition, the Revenue seeks to recall the order passed by the Tribunal in I.T.A. No. 2621/Chny/2017 dated 31.05.2019 relevant to the assessment year 2014-15. The ld. DR relied on the petition and submitted that the Tribunal order may be recalled for fresh adjudication as no clear findings were given with regard to the taxability of the long term capital gains and short term capital gains. 2. On the other hand, the ld. Counsel for the assessee has strongly supported the order of the Tribunal. M.P. No.275/Chny/19 2 3. We have heard both the sides, perused the petition as well as order passed by the Tribunal dated 31.05.2019. In this case, the assessee was one of the 13 co-owners owned the property. In view of the decision of the Coordinate Benches of the Tribunal in one of the co-owner’s case in the case of DCIT v. Shri Sathak Ahmed Shaw in I.T.A. No. 401/Chny/2018 dared 05.10.2018, wherein, by relying upon the decision of the Tribunal in the case of ITO & ANR v. Shafiq Mohammed Shah & ANR in I.T.A. No. 1331/Mds/2016 dated 11.05.2017, the Tribunal has confirmed the order of the ld. CIT(A) by observing as under: “3. The Ld. D.R. further submitted that on appeal by the assessee, the CIT(Appeals) by placing reliance on the order of this Tribunal in another co-owner’s case, found that the transfer took place on the basis of the joint development agreement dated 27.06.2006 during the assessment year 2007- 08 and not during the assessment year 2014-15. According to the Ld. D.R., during the assessment year 2007-08, there was no part performance of the contract. Hence, there was no transfer of property within the meaning of 2(47) of the Act. According to the Ld. D.R., the assessee along with 13 others entered into joint development agreement for the purpose of developing by way of construction on the land, therefore, there was no transfer of ownership took place in the assessment year 2007-08. Hence, according to the Ld. D.R., it has to be taxed during the year under consideration. When the attention of the Ld. D.R. was drawn to the order of this Tribunal in one of the owners in DCIT v. Shri Sathak Ahmed Shaw in I.T.A. No.401/Chny/2018 dated 05.10.2018 wherein it was found that the capital gain is taxable only in the assessment year 2007-08 and not in the assessment year 2014-15, the Ld. D.R. very fairly submitted that he leaves the matter to the discretion of the Tribunal. In fact, in the above case, this Tribunal placed its reliance on the order of another co-ordinate Bench of this Tribunal in the case of another co-owner Shri Shafiq Mohammed Shah in I.T.A. No.1331/Mds/2016 dated 11.05.2017. 4. We heard Shri D. Anand, the Ld. Counsel for the assessee also. According to the Ld. Counsel, the assessee owned the property along with 13 co-owners. In the case of one of the co-owners Shafiq Mohammed Shah M.P. No.275/Chny/19 3 (supra), this Tribunal had an 4 I.T.A. No.2621/Chny/17 occasion to consider the same joint development agreement dated 27.06.2006 and found that there was no transfer of property during the year under consideration and the transfer, in fact, took place in assessment year 2007- 08. According to the Ld. counsel, this order of this Tribunal was followed in another co-owner’s case in Shri Sathak Ahmed Shaw (supra). Therefore, according to the Ld. Counsel, in respect of the very same joint development agreement another co-ordinate Bench of this Tribunal found that there was no transfer during the year under consideration and transfer in fact took place during the assessment year 2007-08. Therefore, capital gain, if any, has to be assessed only in the assessment year 2007-08. Hence, according to the Ld. counsel, the CIT(Appeals) has rightly deleted the addition made by the Assessing Officer. 5. Having heard the Ld. D.R. and the Ld. Counsel for the assessee, we also perused the relevant material available on record. Admittedly, the assessee is one of the co-owners of the property. There are 13 other co- owners who owned the very same property. The joint development agreement entered into by the assessee and 13 other persons was the subject matter of discussion by this Tribunal in the case of one of the co- owners Shri Shafiq Mohammed Shah (supra). This Tribunal by an order dated 11.05.2017 in I.T.A. No. 1331/Mds/2016 found that the transfer of property took place in the assessment year 2007-08 and not in the assessment year 2014-15, therefore, there cannot be any assessment of capital gain during the year under consideration. This order of the Tribunal in Shafiq Mohammed Shah (supra) was subsequently followed by another co-ordinate Bench in another co-owner’s case in Shri Sathak Ahmed Shaw (supra). Therefore, the two co-ordinate Benches of this Tribunal examined the very same joint development agreement in the case of the co-owners and found that there was no transfer during the year under consideration. In view of the decision of co-ordinate Benches of this Tribunal holding that the transfer in fact took place during the assessment year 2007-08 and not during the assessment year under consideration, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly followed the order of this Tribunal. Hence, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. 6. In the result, the appeal filed by the Revenue stands dismissed. 4. During the course of hearing of the appeal, the ld. DR could not controvert the earlier decisions of the Tribunal by filing any higher Court’s decision having modified or reversed the order of the Tribunal, besides, M.P. No.275/Chny/19 4 “the ld. DR has very fairly submitted that he leaves the matter to the discretion of the Tribunal”. Under the above facts and circumstances of the case, we find no error in the order passed by the Tribunal. 5. In the result, the miscellaneous petition filed by the Revenue is dismissed. Order pronounced on 12 th August, 2022 at Chennai. Sd/- Sd/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 12.08.2022 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ (अपील)/CIT(A), 4. आयकर आयुƅ/CIT, 5. िवभागीय Ůितिनिध/DR & 6. गाडŊ फाईल/GF.