SAHEED PALKKANDY KOTTOTH,KANNUR V. DCIT INTERNATIONAL TAXATION, KOCHI

ITA 107/COCH/2023

AI Insights

The case involves an appeal by Saheed Palkkandy Kottoth against the assessment of short term capital gains amounting to Rs.3,18,53,697/- by the Assessing Officer, which was based on a joint development agreement dated 09.04.2009. The primary legal contention was whether the gains from the transfer of land under the said agreement were taxable in the hands of the assessee for the Assessment Year 2010-11. The Commissioner of Income Tax (Appeals) had partly accepted the assessee's arguments, which were further contested by the Revenue. The Tribunal found that the application of section 50D, introduced by the Finance Act, 2012, was not applicable retrospectively and thus the gains were not taxable under the 'real income' principle.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 471656 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-02-2023
• Other Referred Cases: Collector, Land Acquisition vs. MST Katiji [1987] 167 ITR 471 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S. PANDIAN
• Assessee Lawyers: NOE
• Keywords: Retrospective amendment; Capital Gains
• Section: 250; 205

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Satbeer Singh Godara, Judicial Member and Shri Amarjit Singh, Accountant Member ITA No. 107/Coch/2023 (Assessment Year: 2010-11) Saheed Palkkandy Kottoth Safa Kottoth, Paral Thalassery, Kannur 670671 [PAN: AKHPP4843M] vs. DCIT (International Taxation) Kochi (Appellant) (Respondent) Appellant by: ------- Noe ------- Respondent by: Dr. S. Pandian, CIT-DR Date of Hearing: 22.08.2024 Date of Pronouncement: 23.10.2024 O R D E R Per Bench This assessee’s appeal for A.Y. 2010-11 arises against the Commissioner of Income Tax (Appeals) [CIT(A)]’s DIN No. ITBA/APL/M/250/2022- 23/1043029791(1) dated 13.05.2022 in proceedings u/s. 250 of the Income Tax Act, 1961 (the Act). Case called twice. None appears at assessee’s behest. We accordingly proceed ex-parte against the assessee. 2. Delay of 205 days in filing the instant appeal is condoned as per assessee’s solemn averments in light of Collector, Land Acquisition vs., MST Katiji [1987] 167 ITR 471 (SC) having settled the law long back that all such technical aspects must make a way for the cause of substantial justice. 2 ITA No. 107/Coch/2023 Saheed Palkkandy Kottoth 3. It emerges during the course of hearing the Assessing Officer’s assessment dated 25.03.2017 had assessed short term capital gains [“STCG”] in assessee’s hands amounting to Rs.3,18,53,697/- thereby holding him to have transfer the land in question, vide joint development agreement [“JDA”] dated 09.04.2009, followed by the necessary application submitted to the “Mahe” Planning Authority dated 21.01.2009 which stood accepted on 23.12.2009. this is also the Revenue’s case that the said parties had also executed a supplementary agreement dated 04.09.2011 as well. 4. We wish to note that the CIT(A) has partly accepted the assessee’s arguments as under : 3 ITA No. 107/Coch/2023 Saheed Palkkandy Kottoth 4 ITA No. 107/Coch/2023 Saheed Palkkandy Kottoth 5. Learned CIT-DR vehemently argued in support of the CIT(A)’s above extracted findings that the assessee’s case has been rightly restored to the Assessing Officer. 6. We find no reason to express our concurrence with the Revenue’s arguments. This is for the precise reason that the impugned lower appellate findings in para-7 have already negated taxability of the impugned sum as per “real income” principle in para-7 hereinabove (supra), which has attained finality. So far as the Revenue’s endeavour seeking to invoke sec.50D inserted by the Finance Act, 2012 w.e.f. 01.04.2013 onwards and the same does not carry any retrospective effect once we are in assessment year 2010-11 only. Faced with this situation, we accept the assessee’s instant sole substantive ground in very terms. Ordered accordingly. 7. This assessee’s appeal is allowed in above terms. Order pronounced in the open Court on 23rd October, 2024 under Rule 34 of The Income Tax (Appellate Tribunal) Rules, 1963. Sd/- Sd/- (Amarjit Singh) Accountant Member (Satbeer Singh Godara) Judicial Member Cochin, Dated: 23rd October, 2024 VBP/- 5 ITA No. 107/Coch/2023 Saheed Palkkandy Kottoth Copy to: 1. The Appellant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File By Order Assistant Registrar ITAT, Cochin "