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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. N. K. CHOUDHRY & SH. O. P. MEENA
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. N. K. CHOUDHRY, JUDICIAL MEMBER AND SH. O. P. MEENA ACCOUNTANT MEMBER I.T.A. No. 633/Asr/2014 Assessment Year: 2007-08
Sh. Raghunath Sahai Puri vs. D. C. I. T., (Decd) Thro L/H Naresh Puri, Circle, Pathankot Purian Mohalla, Pathankot [PAN: AIFPP 5367A] (Appellant) (Respondent)
Appellant by : Sh. J. S. Bhasin (Adv.) Respondent by: Sh. Alok Kumar CIT-DR Date of Hearing: 17.12.2019 Date of Pronouncement: 19.12.2019
ORDER Per O. P. Meena, AM: This appeal by the Assessee is filed against the order of learned Commissioner of Income Tax (Appeals), Amritsar u/s 250(6) of the I.T. Act, 1961 dated 26.08.2014 for the Assessment Year 2007-08.
The assessee has raised the following grounds of appeal:
“1. That in the facts and circumstances of the case, the ld. CIT(A) has grossly erred in confirming the levy of penalty of Rs.39.80 lacs on deceased assessee, as imposed by the AO u/s 271(1)(c) for the alleged non disclosure of capital, gain on transfer of land by the MLA’s Housing Society to TATA Housing Development Co.
2 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. 2. That without having impleaded all the legal heirs of the deceased, the impugned order of ld. AO on a single legal heir, was not sustainable.
That appreciating the most bonafide explanation, duly substantiated in penalty proceedings, the levy of impugned penalty, ought to have been cancelled.
That the ld. CIT(A) misconstrued the facts and also the legal position in rejecting the assessee’s contention that the matter being highly debatable, and even admitted by High Court on a ‘substantial question of law’, the penalty ought to been dropped on this very premised.
That the order under appeal is wholly against law and facts of the case.”
We find that the Tribunal in the case of Bikramjit Singh Gill v. ACIT dated 07.01.2016 in ITA No. 181/Asr/2014 /AY 2008-09 of which finding is reproduced as under:
“2. The facts as per record are that on 27.04.2007, M/s. Defence Service Co-op. House Building Society Ltd., Mohali, of which the assessee is a member, entered into a tripartite Joint Development Agreement with M/s. Hash Builders Pvt. Ltd., Chandigarh and M/s. Tata Housing Development Company Ltd., Mumbai. By virtue of the tripartite agreement, it was agreed upon amongst these parties that M/s. Defence Services Co-op. House Building Society., Mohali, owner of 27.3 acres of land, shall transfer its land to M/s. Tata Housing Development Company Ltd., in lieu of monetary consideration and consideration in kind. The assessee was to receive Rs.80 lakhs as monetary consideration. In addition, as consideration in kind, one furnished flat measuring 2250 sq. ft. worth Rs.1,01,25,000/- was to be received by the assessee, as per the Joint Development Agreement, ‘owner’ was to include the members.
It was observed by the AO that the Joint Development Agreement was in fact a sale agreement resulting into the transfer of capital asset. All the factors of transfer, i.e., consideration, schedule of payments, rights and liabilities of each of the three parties and termination, indemnity and arbitration clauses were very exhaustively detailed in the Joint
3 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. Development Agreement. The capital gains arose from the fact that it was a case of transfer of capital asset generally and also in view of sections 2(47)(ii), 2(47)(v) and 2(47)(vi) of the Act. In view of the Joint Development Agreement, the owner had, at the time of making the agreement, irrevocably and unequivocally granted and assigned in perpetuity all its rights to develop, construct, mortgage, lease, license, sell and transfer the property, i.e., 27.3 acres of land alongwith all constructions, trees, etc., in favour of THDC for the purpose of development, construction, mortgage, sale, transfer, lease, license and/or exploitation for full utilization of the property, and to execute all documents necessary to carry out, facilitate and enforce the rights in the property. Thus, in fact, the owner had irrevocably and unequivocally granted and assigned in perpetuity all the rights which an owner could have in an immovably property. Thus, there was extinguishment of these rights of the owner in lieu of the consideration which inter-alia include immovable property, termed as ‘Entire Consideration’ in the agreement.
As such, the assessee was required to explain as to why capital gain arising out of the transaction, by virtue of which he has transferred his share in the property of M/s. Defence Services Co-op. House Building Society Ltd., Mohali to M/s. Hash Builders Pvt. Ltd., Chandigarh and M/s. Tata Housing Development Company Ltd., Mumbai on 27.04.2007 for a total consideration of Rs.1,81,25,000/- including the value of flat, be not charged to tax u/s 45 read with section 48 of the Act.
The assessee responded by stating that as per the contract, the assessee was supposed to get a built up flat having super area of 2250 sq. ft. apart from cash; as the sales consideration in the contract of the assessee could not be ascertained in money certainly till the determination of the market value of the flat, and the same had not hitherto been constructed by the transfer, the transaction did not fall under the definition of ‘transfer’ as per the provisions of the Income Tax Act.
The long term capital gain relating to transfer of land by M/s. Defence Services Co- op. House Building Society Ltd., Mohali and arising to the assessee was disclosed by the assessee in the revised return of income filed on 07.01.2010. However, vide order dated
4 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. 27.12.2010, passed u/s 143(3) of the Act, the AO assessed the long term capital gain at Rs.1,75,36,744/-. By virtue of order dated 07.03.2013, the ld. CIT(A) dismissed the assessee’s appeal against the aforesaid assessment. The Tribunal vide order dated 11.09.2013, passed in ITA No.406(Asr)/2013, dismissed the assessee’s appeal against the CIT(A)’s order.
The AO levied the penalty of Rs.39,73,825/- being 100% of the tax sought to be evaded on the assessee, vide order dated 29.06.2011, passed under section 271(1)(c) of the Act.
By virtue of the impugned order dated 04.12.2013, the ld. CIT(A) confirmed the levy of penalty on the assessee, observing, inter-alia, as follows:
“Briefly noticed, the facts of the case are that the long term capital gain relating to transfer of land by the M/s. Defence Services Co-op. House Building Society Ltd., Mohali (facts discussed in detail supra) and arising to the appellant was disclosed in the revised return of the income by the appellant on 07.01.2010 but vide order u/s 143(3) the assessment of LTCG has been framed at RS.1,75,36,744/-. The appeal filed by the appellant was dismissed by me in appeal no. 177-IT/11-12 vide order dated 07.03.2013 and the further appeal before the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar was also dismissed in ITA no.406(Asr)/2013 vide order dated 07.03.2013. The appellant has not brought on record that whether the appeal has been filed before the Hon’ble Punjab & Haryana High Court.
In grounds of appeal no. 1 & 2 it has been stated by the appellant that the revised return of income was filed on 07.08.2010 declaring LTCG amounting to Rs.32,00,000/- but there is no concealment of income on account of the fact that the entire capital gain arising from the sale of plot of 500 sq. yards amounting to Rs.1,75,36,744/- was not declared.
Since, in the present case the assessment of long term capital gain has been upheld by the jurisdictional bench of the Hon’ble ITAT and the appellant filed belated revised return of income declaring long term capital gain, the action of the AO in
5 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. imposing penalty u/s 271(1)(c) on account of the concealment of income by the appellant is upheld and the penalty amounting to Rs.39,73,825/- is confirmed. The grounds of appeal no.1 and 2 is dismissed.”
Thus, the fate of the quantum appeal in the matter before the Hon’ble High Court was not available before the ld. CIT(A). In this regard, before us, a copy of High Court order dated 31.01.2015, in the assessee’s case in ITA No.161 of 2014, has been filed. The ld. counsel for the assessee has contended that therein, the Hon’ble High Court has deleted the quantum addition made and that, therefore, the levy of penalty does not survive.
On the other hand, the ld. DR has placed strong reliance on the impugned order.
In the aforesaid order, 31.07.2015, the Hon’ble High Court has observed as follows:
“4. We have heard learned counsel for the parties.
The Tribunal had adjudicated the appeals of the assessees relying upon the order dated 29.7.2013 passed by it in the case of Charanjit Singh Atwal vs. ITO,Ward No.VI(I) Ludhiana in ITA No.448/CHD/2011 against which ITA No.200 of 2013 was filed in this Court. In the said appeal alongwith connected appeals, the following issues emerged for consideration and adjudication:-
(i) scope and legislative intent of Section 2(47)(ii), (v) and (vi) of the Act;
(ii) the essential ingredients for applicability of Section 53A of1882 Act;
(iii) meaning to be assigned to the term “possession”?
(iv) whether in the facts and circumstances, any taxable capital gains arises from the transaction entered by the assessee?
After considering the relevant statutory provisions and the case law, the conclusions arrived at by this Court in the said appeals vide judgment dated 22.7.2015 read thus:-
6 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. 1. Perusal of the JDA dated 25.2.2007 read with sale deeds dated 2.3.007 and 25.4.2007 in respect of 3.08 acres and 4.62 acres respectively would reveal that the parties had agreed for pro-rata transfer of land.
No possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.2.2007 so as to fall within the domain of Section 53A of 1882 Act.
The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee.
Further Section 53A of 1882 Act, by incorporation, stood embodied in section 2(47)(v) of the Act and all the essential ingredients of Section 53A of 1882 Act were required to be fulfilled. In the absence of registration of JDA dated 5.2.2007 having been executed after 24.9.2001, the agreement does not fall under Section 53A of 1882 Act and consequently Section 2(47)(v) of the Act does not apply.
It was submitted by learned counsel for the assessee-appellant that whatever amount was received from the developer, capital gains tax has already been paid on that and sale deeds have also been executed. In view of cancellation of JDA dated 25.2.2007, no further amount has been received and no action thereon has been taken. It was urged that as and when any amount is received, capital gains tax shall be discharged thereon in accordance with law. In view of the aforesaid stand, while disposing of the appeals, we observe that the assessee appellants shall remain bound by their said stand.
The issue of exigibility to capital gains tax having been decided in favour of the assessee, the question of exemption under Section 54F of the Act would not survive any longer and has been rendered academic.
The Tribunal and the authorities below were not right in holding the assessee-appellant to be liable to capital gains tax in respect of remaining
7 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. land measuring 13.5 acres for which no consideration had been received and which stood cancelled and incapable of performance at present due to various orders passed by the Supreme Court and the High Court in PILs. Therefore, the appeals are allowed.”
The substantial questions of law were answered and appeals disposed of accordingly.
It was not disputed between the learned counsel for the parties that the issue involved herein is squarely covered by the aforesaid judgment. Accordingly, the present appeals are disposed of in the same terms.
From the above, it is evident that the Hon’ble High Court has taken the appeal of the assessee as disposed of in terms of the decision of their Lordships in the case of “Charanjit Singh Atwal vs. CIT”, vide order, dated 22.07.2015, passed in ITA No.200 of 2013 (O&N), reported as 279 CTR 330 (P&H), wherein, it has been held that since no possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within the domain of section 53A of the Transfer Act and consequently, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act; that in clause 26 of the JDA dated 25.02.2007, the principle of force majeure had been provided for, which would be applicable with full vigour in the circumstances; that from the cumulative effect of the covenants contained in the JDA read with the registered special power of attorney dated 26.02.2007, it could not be held that the mandatory requirements of section 53A of the Transfer Act were complied with, which stood incorporated in section 2(47)(v) of the Act; that once that was so, it could not be said that the assessees were liable to capital gain tax in respect of the remaining land which was not transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angle, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in the facts of the case.
8 ITA No. 633/Asr/2014 (AY 2007-08) Sh. Raghunath Sahai Puri v. D.C.I.T. 14. It is in view of the above observations of their lordships in “C.S. Atwal vs. CIT” (supra), that the case of the present assessee has been disposed of. It has been contended on behalf of the assessee that as such, the quantum addition stands effectively deleted by the Hon’ble High Court. This has not been disputed before us.
Once the quantum addition stands deleted by the Hon’ble High Court, the very raison d ctre of the penalty at hand no longer survives and for this very reason itself, the penalty must go. It is ordered accordingly. To reiterate, the benefit of the order of the Hon’ble High Court (supra) was not available to the ld. CIT(A), as observed by him and as noted hereinabove.
To sum up, since the quantum addition leading to it stands deleted, the resultant penalty in question is also deleted.”
Respectfully following the decision of Coordinate Bench above, this penalty is deleted.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on December 19, 2019
Sd/- Sd/- (N. K. Choudhry) (O. P. Meena) Judicial Member Accountant Member Date: 19.12.2019 /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals), (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy
By Order