Mr.Venkatareddy Manjunath , Bangalore V. Assistant Commissioner of Income Tax, Circle-5(2)(1), Bangalore

SA 96/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5883 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Keywords: Capital asset; Application of stay; Reasonable cause; Fair market value
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, B ENGALURU BEFORE S HRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER SP NO. 96 /BANG/201 8 (IN I TA NO. 79 8 / BANG/2 0 1 8 ) (ASSESSMENT YEAR: 20 08 - 09 ) SHRI VENKATAREDDY MANJUNATH, NO.13, 2 ND CROSS, SHANKARAPURAM BENGALURU - 560 004. PAN:A FSPM0587R VS. PETITIONER ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 5(2)(1) , BENGALURU. RESPONDENT PETITI O NER BY : SHRI SANDEEP, CA. RESPONDENT BY : DR.P.V.PRADEEP KUMAR, ADDL.CIT(DR) DATE OF HEARING : 0 6 /0 4 /2018 DATE OF PRONOUNCEMENT : 09 / 0 4 /201 8 O R D E R PER I NTURI RAMA RAO, AM : THIS STAY PETITION IS FILED BY THE ASSESSEE SEEKING STAY OF DEMAND OF 1,41,99,849/ - . IT IS SUBMITTED THAT THAT THE DEMAND IN QUES TION HAS ARISEN ON ACCOUNT OF ENTERING INTO JOINT DEVELOPMENT AGREEMENT(JDA) IN RESPECT OF PROPERTY OWNED BY HIM. IT IS SUBMITTED THAT TRANSFER OF LAND WAS ONLY TO THE EXTENT OF 5 5 % OF THE AREA OWNED AND TRANSFERRED BY THE ASSESSEE WHEREAS THE ASSESSING O FFICER (AO) HAD TAKEN THE ENTIRE VALUE OF LAND WHICH IS RETAINED BY HIM IN TERMS OF DEVELOPMENT AGREEMENT. THUS, ACCORDING TO THE ASSESSEE - COMPANY, THERE IS A STRONG PRIMA FACE CASE IN FAVOUR OF THE ASSESSEE - COMPANY. FURTHER IT IS SUBMITTED THAT THE TOTA L DEMAND WAS SUBSEQUENTLY RECTIFIED TO RS.1,05,44,290/ - VIDE ORDER DATED 11/04/2016 PASSED U/S 154 OF THE IT ACT, OUT OF WHICH A SUM OF RS.15,81,641/ - WAS PAID ON SP NO . 96/BAN G/201 8 PAGE 2 OF 3 29/06/2016 AND ANOTHER SUM OF RS.15,00,000/ - WAS PAID ON 20/03/2018 THUS LEAVING A BALANCE OF 70% OF THE DISPUTED DEMAND. IT IS FURTHER STATED THAT THE AO ASSESSED THE FAIR MARKET VALUE OF THE ENTIRE LAND IGNORING THE FACT THAT ONLY 55% OF THE LAND WAS TRANSFERRED TO THE DEVELOPER. IT IS FURTHER SUBMITTED THAT IF THE AO ASSESSED ONLY 55% OF THE L AND OWNED BY THE ASSESSEE, THE DEMAND IN QUESTION WOULD GET REDUCED BY 45% AND THE OUTSTANDING DEMAND WOULD BE VERY NOMINAL. IN THE CIRCUMSTANCES, THE LEARNED AR OF THE ASSESSEE PRAYED FOR ABSOLUTE STAY OF THE DEMAND. 2. ON THE OTHER HAND, LEARNED DEPARTM ENTAL REPRESENTATIVE OPPOSED THE STAY PETITION. 3. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE SUBMISSIONS MADE BY THE LEARNED AR OF THE ASSESSEE IN SUPPORT OF THE PRIMA FACIE CASE ARE NOT CONTROVERTED BY THE LEARNED DEPARTMENTAL REP RESENTATIVE. TAKING INTO CONSIDERATION SUBMISSIONS MADE IN FAVOUR OF THE ASSESSEE, IT APPEARS THERE IS A PRIMA FACIE CASE IN FAVOUR OF THE ASSESSEE AND THEREFORE, IT IS A FIT CASE FOR STAY OF DEMAND. WE ORDER ACCORDINGLY. THE STAY IS VALID FOR A PERIOD OF SIX MONTH S OR TILL THE DISPOSAL OF THE APPEAL WHICHEVER IS EARLIER . HOWEVER, W E DIRECT THE REGISTRY TO POST THE CASE OUT OF TURN HEARING ON 09/05/2018 . THE STAY IS ALSO SUBJECT TO CONDITION THAT THE ASSESSEE SHALL NOT SEEK ADJOURNMENT OF THE CASE FROM H EARING WITHOUT ANY JUST AND REASONABLE CAUSE. 4. IN THE RESULT, THE STAY PETITION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH APRIL , 2018 SD/ - SD/ - ( S UNIL KUMAR YADAV ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 09 / 0 4 /201 8 SRINIVASULU, SPS SP NO . 96/BAN G/201 8 PAGE 3 OF 3 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD F ILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE