C.Shrinivasan, CHENNAI V. DCIT Corporate Circle 3(2), CHENNAI

MA 63/CHNY/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2244 (ITAT-CHENNAI)
• Duration Of Justice: 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 08-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M SUBASHRI
• Keywords: Capital asset; Set aside
• Section: 254(2)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 63/CHNY/2019 & S.P. NO. 107/CHNY/2019 [IN M.P. NO. 63/CHNY/2019 ARISING IN I.T.A.NO.884/CHNY/2019] ASSESSMENT YEAR : 2010-11 SHRI C. SHRINIVASAN, BLOCK-VI, FLAT 3C, RANI MEYYAMMAI TOWERS, MRC NAGAR, CHENNAI 600 032. [PAN:BMGPS0045E] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(2), CHENNAI 600 034. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI VIKRAM VIJAYARAGHAVAN, ADVOCATE / RESPONDENT BY : MS. M. SUBASHRI, JCIT / DATE OF HEARING : 05.04.2019 /DATE OF PRONOUNCEMENT : 05.04.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO RECALL THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO. 3083/CHNY/2017 DATED 31.01.2019 ON THE GROUND THAT THE TRIBUNAL IN ITS ORDER HAS NOT CONSIDERED THE TRANSFER OF PROPERTY TAKEN PLACE EITHER IN THE ASSESSMENT YEAR 2009-10 OR ASSESSMENT YEAR 2010-11 AS PER PROVISIONS OF SECTION 2(47)(VI) OF THE INCOME TAX ACT, 1961 [ACT IN SHORT] AND PRAYED THAT THE ORDER MAY BE M.P. NO. 63/CHNY/19 & S.P. NO. 107 /CHNY/19 2 RECALLED AND PASS SUITABLE ORDER. IN LIEU OF THE MISCELLANEOUS PETITION, THE ASSESSEE ALSO FILED A STAY PETITION AGAINST THE DEMAND. 2. PER CONTRA, THE LD. DR HAS SUBMITTED THAT AFTER CAREFULLY GOING THROUGH THE FACTS AND CIRCUMSTANCES, MATERIALS AVAILABLE ON RECORD AND IN VIEW OF THE HONBLE SUPREME COURT DECISION THE TRIBUNAL HAS ADJUDICATED THE ISSUE RAISED IN THE APPEAL AND THUS, THERE IS NO MISTAKE APPARENT ON RECORD. THE LD. DR ALSO SUBMITTED THAT REVIEW OF THE ORDER OF THE TRIBUNAL IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. 3. WE HAVE HEARD BOTH SIDES AND PERUSED THE RECORDS. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE UNDER THE HEAD INCOME FROM LONG TERM CAPIGAL GAINS FOR THE ASSESSMENT YEAR 2010-11 BY HOLDING THAT THE TRANSFER OF IMPUGNED PROPERTY TOOK PLACE IN THE FINANCIAL YEAR 2008-09 AND HENCE ASSESSABLE ONLY IN THE ASSESSMENT YEAR 2009-10 RELYING ON THE UNREGISTERED SALE AGREEMENT DATED 02.05.2008, WHEREAS THE ASSESSING OFFICER HAS CORRECTLY ASSESSED THE INCOME IN THE ASSESSMENT YEAR 201-011 FOR THE REASONS CITED IN THE ASSESSMENT ORDER IN DETAIL AND BASED ON THE SALE DEED DATED 27.04.2009. IN THIS CASE, THE UNDISPUTED FACTS ARE THAT THE ASSESSEE OWNED PROPERTY, WHICH WAS ACQUIRED BY THE ASSESSEE'S FATHER IN 1975, HELD ALONG WITH 18 JOINT OWNERS AT MOUNT ROAD IN NANDANAM, CHENNAI. THE M.P. NO. 63/CHNY/19 & S.P. NO. 107 /CHNY/19 3 PROPERTY WAS IN LONG TERM LEASE WITH M/S. VOLTAS LIMITED FOR 25 YEARS ON 16.12.1975. THE LESSEE HAS FILED A CIVIL SUIT IN MADRAS HIGH COURT FOR EXTENDING THE LEASE PERIOD FOR FURTHER 30 YEARS. THE ASSESSEE AGREED TO SELL THE PROPERTY TO M/S. SHANGALPAM INDUSTRIES PRIVATE LIMITED. THE SALE DEED REGISTERED ON 27.4.2009. THE ASSESSEE ALONG WITH OTHER CO-OWNERS ENTERED INTO AN AGREEMENT ON 2.5.2008 WITH ONE, SHRI S. SARAVANAN TO SELL HIS SHARE OF PROPERTY WHICH CONSTITUTES1/3 RD OF THE TOTAL EXTENT FOR A CONSIDERATION OF . 3,07,55,540/- AND NO PROOF OF PAYMENT WERE MENTIONED IN THE SALE AGREEMENT. THE SALE AGREEMENT WAS NOT REGISTERED WITH THE GOVERNMENT AUTHORITIES. POSSESSION WAS ALSO NOT HANDOVER AS THE PROPERTY WAS OCCUPIED BY M/S. VOLTAS LIMITED. IN THIS CASE, THE ACTUAL SALE/TRANSFER TOOK PLACE ONLY ON THE DATE OF EXECUTION OF SALE DEED I.E., 27.04.2009. IN THE CASE OF CIT V. BALBIR SINGH MAINI [2017] 86 TAXMANN.COM 94, THE HON'BLE APEX COURT HELD THAT FOR THE PURPOSE OF APPLICATION OF SECTION 53A OF TOP ACT, 1882, THE AGREEMENT SHOULD BE REGISTERED IF IT ENTERED AFTER 2001, THE YEAR OF AMENDMENT TOOK PLACE IN SECTION 17A OF THE TOP ACT, 1882 TO THIS EFFECT. ADMITTEDLY, THE ASSESSEE HAS NOT REGISTERED THE SALE AGREEMENT IN THIS CASE. THUS, THE TRIBUNAL WAS OF THE CONSIDERED OPINION THAT SINCE, THE SALE/TRANSFER TOOK PLACE ONLY ON THE DATE OF SALE DEED EXECUTED ON 27.4.2009, THE CAPITAL GAIN IS TAXABLE IN THE ASSESSMENT YEAR 2010-11AND THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMITTED THE MATTER BACK TO THE FILE OF THE LD. M.P. NO. 63/CHNY/19 & S.P. NO. 107 /CHNY/19 4 CIT(A) TO DECIDE THE ISSUE AFRESH IN VIEW OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. BALBIR SINGH MAINI (SUPRA). IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER DATED 31.01.2019 AND ACCORDINGLY, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. 4. ONCE THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED, THE STAY PETITION FILED IN LIEU THEREOF HAS NO LOCUS STANDI AND THUS, THE STAY PETITION FILED BY THE ASSESSEE ALSO DISMISSED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS PETITION AS WELL AS STAY PETITION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THE 05 TH APRIL, 2019 AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 05.04.2019 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.