INCOME TAX OFFICER vs. LT. COL. G.S. KLAIR, NEW DELHI

आदेश / ORDER

PER R.S.SYAL, VP : This appeal filed by the Revenue arises out of the order passed by the CIT(A)-1, Pune on 01-08-2016 in relation to the assessment year 2008-09.

2 ITA No.2636/PUN/2016 Lt. Col. G.S. Klair

Army Officer who declared income from salary. Proceedings

u/s.147 of the Income-tax Act, 1961 (hereinafter also called as ‘the

Act’) were initiated against the assessee as information was

received which transpired that the assessee was a member of M/s.

Defence Services Cooperative Housing Building Society Limited,

Mohali, which was having 27.03 acre of land in village Kansal,

District SAS Nagar and the Society had entered into a Tripartite

agreement with M/s. TATA Housing Development Corporation

Limited and M/s. Hash Builders Pvt. Ltd. for sale of land to them.

The members were to receive consideration in cash as well as in

kind as per the plot size. During the year under consideration, the

assessee received a sum of Rs.8,40,000/- as his proportionate

share. The AO noted that in similar two other cases Mr. P.S.

Bhinder and Mr. R.V. Singh, it was submitted by those assessees

that the Joint Development Agreement between the Society and

THDC and M/s. Hash Builders Pvt. Ltd. was terminated. In the

absence of any proof to substantiate this plea, the AO called for

information u/s.133(6) from the society, THDC and M/s. Hash

Builders. The THDC and M/s. Hash Builders Pvt. Ltd., vide their

letters dated 26-02-2014 and 23-02-2014 respectively, informed

3 ITA No.2636/PUN/2016 Lt. Col. G.S. Klair

the AO that the agreement was not terminated till date. The AO

computed income under the head ‘Capital gains’ at

Rs.1,19,32,338/- arrived at by deducting cost of acquisition of

Rs.2.92 lakh from the full value of consideration of Rs.1.22 crore,

computed by taking consideration in cash at Rs.21 lakhs and value

of one flat at Rs.1.01 crore. The ld. CIT(A) deleted the addition,

except to the extent of Rs.8,40,000/- received by the assessee in

cash, by relying on the judgment of Hon’ble Punjab & Haryana

High Court in the case of Sh. C.S. Atwal Vs. CIT dated

22-07-2015. The Revenue is aggrieved against the deletion of this

addition.

relevant material on record. The ld. DR submitted that the

judgment in the case of Sh. C.S. Atwal Vs. CIT, relied by the ld.

CIT(A) for deleting the addition, is in relation to a different

property and not the one which was sold by the assessee along with

other society members. This was controverted by the ld. AR. As

the AO matched the facts of the instant case with those of Mr. P.S.

Bhinder and Mr. R.V. Singh, the ld. AR was required to give status

of the appeals in respect of them. In response, he submitted that the

4 ITA No.2636/PUN/2016 Lt. Col. G.S. Klair

Tribunal has deleted similar additions in the case of those two

persons. He, however, expressed his inability to produce copies of

such orders passed by the Tribunal. It was fairly admitted by the

ld. AR that the facts and circumstances of the instant appeal are

similar to those of two persons named in the assessment order.

Since copies of the Tribunal orders in the case of Mr. P.S. Bhinder

and Mr. R.V. Singh have not been placed on record, though the ld.

AR admitted that the appeals have been decided by the Tribunal,

we deem it fit to set-aside the impugned order and remit the matter

to the file of AO. We order accordingly and direct him to decide

this issue afresh in the light of the decision claimed to have been

rendered by the Tribunal in similar facts in the case of Mr. P.S.

Bhinder and Mr. R.V. Singh. Needless to say, the assessee will be

allowed an opportunity of hearing in such fresh proceedings.

Order pronounced in the Open Court on 30th January, 2019.

Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 30th January, 2019 सतीश

ITA No.2636/PUN/2016 Lt. Col. G.S. Klair

आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत आदेश आदेश

अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. 3. The CIT(A)-1, Pune

आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

Date 1. Draft dictated on 29-01-2019 Sr.PS 2. Draft placed before author 29-01-2019 Sr.PS 3. Draft proposed & placed before the JM second member 4. Draft discussed/approved by Second JM Member. 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *