R.C. Nirula & Sons HUF, New Delhi V. ACIT, New Delhi

MA 666/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3232 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 21-07-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘F’, NEW DELHI Before Sh. Kul Bharat, Judicial Member Dr. B. R. R. Kumar, Accountant Member MA No. 666/Del/2019 (in ITA No. 6093/Del/2015 : Asstt. Year : 2008-09) R. C. Nirula & Sons HUF, 32, Sunder Nagar Market, New Delhi Vs ACIT, Circle-32(1), New Delhi (APPELLANT) (RESPONDENT) PAN No. AAAHR6050F Assessee by : Sh. Gaurav Jain, Adv. & Sh. Praveen Kumar, Adv. Revenue by : Sh. Anuj Garg, Sr. DR Date of Hearing: 22.07.2022 Date of Pronouncement: 12.08.2022 ORDER Per Dr. B. R. R. Kumar, Accountant Member: The Miscellaneous Application has been filed by the assessee arising out of the order in ITA No. 6093/Del/2015 & 1028/Del/2014 dated 10.02.2019. 2. The relevant facts for adjudication of the MA are as under: 09.04.2005 – Booked Villa, B-221 with M/s Ansals 08.03.2008 – Agreement to sale for transfer of booking rights 08.03.2008 – Received 10% advance of Rs.15,75,000/- 25.04.2008 – Received 90% of the remaining payment 3. The revenue treated the gains out of the transfer of rights as short term capital gains in the A.Y. 2008-09 on substantive basis and in the A.Y. 2009-10 on protective basis. MA No.666/Del/2019 R. C. Nirula 2 4. The ld. CIT(A) confirmed the assessment treating the gains as short term capital gains for A.Y. 2008-09. Before the Tribunal, the assessee claimed that no transfer of booking rights took place in the A.Y. 2008-09 rather it should be treated as taken place in the A.Y. 2009-10. The assessee relied on the judgment of Hon’ble Apex Court in the case of CIT Vs. Balbir Singh Maini 86 Taxman 94. The Tribunal held that the booking rights given by the builder to the assessee fall within the scope of capital asset and such sale of rights by the assessee come within the definition of transfer u/s 2(47) of the Income Tax Act, 1961 and held that the Assessing Officer has rightly made assessment on substantive basis in the A.Y. 2008-09. 5. In the MA, the assessee took up a plea that non- consideration of the judgment of Hon’ble Apex Court in the case of CIT Vs. Balbir Singh Maini (supra) constitutes mistake apparent from record rectifiable u/s 254(2) of the I.T. Act. Respectfully following the ratio of the Hon’ble Apex Court in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd. 305 ITR 227, we hereby allow the Miscellaneous Application of the assessee. The Registry is directed to issue fresh notice of hearing. Order Pronounced in the Open Court on 12/08/2022. Sd/- Sd/- (Kul Bharat) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 12/08/2022 *Subodh Kumar, Sr. PS*