M/S M/S VIJENDRA SINGH & ASSOCIATES, BILASPUR(CG) V. THE INCOME TAX OFFICER, WARD-1(2),BILASPUR, BILASPUR(CG)

SA 8/RPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6509 (ITAT-RAIPUR)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: TDS Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 18-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Assessee Lawyers: S R RAO
• Keywords: Application of stay; Cost of acquisition
• Section: 147; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER S.A. NO.8/RPR/2018 (IN ITA NOS.49 & 50/RPR/2017) ASSESSMENT YEARS : 2009-10 & 2010-11 M/S. VIJENDRA SINGH & ASSOCIATES, C/O. BEDFORD EARTH MOVERS INC., RAJIV GANDHI CHOWK, JARHABHATA, BILASPUR (CG). VS. ITO, WARD- 1(2), BILASPUR (CG). PAN : AAAAV6865H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. R. RAO, ADV. DEPARTMENT BY : SHRI P. K. MISHRA, CIT-DR DATE OF HEARI NG : 13-08-2018 DATE OF PRONOUNCEMENT : 13-08-2018 O R D E R PER R. K. PANDA, AM : THE ASSESSEE THROUGH THIS STAY APPLICATION REQUESTS THE TRIBUNAL TO STAY ON THE REALIZATION OF OUTSTANDING DEMAND OF RS.2,11 ,46,688/- FOR ASSESSMENT YEAR 2009-10 AND RS.16,58,170/- FOR ASSESSMENT YEAR 2010-11. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E STAY APPLICATION SUBMITTED THAT THE ASSESSEE IS AN ASSOCIATION OF PE RSONS CONSISTING OF SHRI VIJENDRA SINGH, SHRI VINOD PATEL AND SHRI RAVI SHRI VAS. SHRI VIJENDRA SINGH 2 SA NO.8/RPR/2018 HAD ENTERED INTO AN AGREEMENT ON 18.10.2008 WITH M/ S KOYALA KARMCHARI GRIH NIRMAN EVAM SAHKARI SAMITI MARYADIT, BILASPUR TO AC QUIRE 100 ACRES OF LAND AT SPECIFIED LOCATION AND SELL AT FIXED PRICE OF RS.13 ,25,000/- PER ACRE AFTER DOING REQUISITE JOBS LIKE DIVERSION, DEMARCATION, MAP APP ROVAL, DEVELOPING, LEVELING ETC. WITHIN ONE YEAR. THE APPELLANT WAS FOLLOWING PROJECT COMPLETION METHOD OF ACCOUNTING AND ACCORDINGLY SALES WERE NOT RECOGNIZE D TILL COMPLETION OF PROJECT. THEREFORE, THERE WAS NO TAXABLE INCOME HENCE RETURN OF INCOME WAS NOT FILED. 3. HE SUBMITTED THAT THE ASSESSING OFFICER COMPLETE D THE ASSESSMENT DETERMINING THE TOTAL INCOME AT RS.4,27,95,220/- FO R ASSESSMENT YEAR 2009-10 AND RS.35,52,840/- FOR ASSESSMENT YEAR 2010-11 AS A GAINST THE RETURNED INCOME AT NIL. WHILE CHALLENGING THE VALIDITY OF THE REAS SESSMENT PROCEEDINGS, HE SUBMITTED THAT THE LD. ASSESSING OFFICER INITIATED PROCEEDINGS U/S 147 OF THE I.T. ACT TO UNEARTH THE REAL INCOME OF THE ASSESSEE AND AS PER ESTABLISHED LEGAL POSITION RE-ASSESSMENT PROCEEDINGS CANNOT BE INITIA TED FOR VERIFICATION HENCE THE SAID PROCEEDINGS ARE WITHOUT JURISDICTION. 4. SO FAR AS MERIT OF THE CASE IS CONCERNED, HE SUB MITTED THAT THE AMOUNT OF SALES WORKED OUT ON THE BASIS OF AGREED SALE PRICE AFTER CONSIDERING PURCHASE COST OF LAND WAS ADOPTED AS INCOME WITHOUT CONSIDER ING THE COSTS REQUIRED FOR PERFORMING COMMITTED TASKS AS PER TERMS OF AGREEMEN T WHICH WERE SUBSEQUENTLY 3 SA NO.8/RPR/2018 PERFORMED HENCE ONLY REAL INCOME WAS ASSESSABLE TO TAX. HE SUBMITTED THAT THE ASSESSE HAS GOT A STRONG PRIMA-FACIE CASE IN ITS FA VOUR. FURTHER, THE ASSESSEE HAS ALREADY PAID AMOUNT OF RS.52,75,732/- FOR ASSESSMEN T YEAR 2009-10 AND RS.50,000/- FOR ASSESSMENT YEAR 2010-11 WHILE FILIN G THE STAY APPLICATION. FURTHER, THE ASSESSEE PAYING RS.2,00,000/- AS INSTA LLMENT IN EVERY MONTH. HE ACCORDINGLY SUBMITTED THAT FULL STAY SHOULD BE GRAN TED AND AN EARLIER HEARING ALSO SHOULD BE ALLOWED. 5. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THE ASSESSEE SHOULD BE DIRECTED TO PAY AT LEAST 50% OF THE OUTSTANDING DEM AND. 6. AFTER HEARING THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES AND ON PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE FOR GRANTING FULL STAY OF OUTSTANDING DEMAND. HOWE VER, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE DIRECT THE ASSESSEE TO PAY AN AMOUNT OF RS.15,00,000/- IN THREE INSTALLMENTS OF RS.5,00,000 /-. THE FIRST INSTALLMENT OF RS.5,00,000/- BE DEPOSITED ON OR BEFORE 31 ST AUGUST, 2018 AND AMOUNT OF RS.5,00,000/- EACH TO BE DEPOSITED BY END OF 30 TH SEPTEMBER, 2018 AND 31 ST OCTOBER, 2018 RESPECTIVELY. THE BALANCE AMOUNT IS STAYED TILL THE NEXT DATE OF HEARING. THE STAY APPLICATION FILED BY THE ASSESSE E IS ACCORDINGLY ALLOWED IN 4 SA NO.8/RPR/2018 THE ABOVE TERMS I.E. SUBJECT TO PAYMENT OF RS.15,00 ,000/-, THE BALANCE OUTSTANDING AMOUNT FOR BOTH THE YEARS IS STAYED TIL L THE NEXT DATE OF HEARING. 7. IN THE RESULT, THE STAY APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 13 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR