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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
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.
The only issue raised by the Revenue in this appeal is against deletion of addition of Rs.1,19,32,338/- made by the Assessing Officer under the head “Capital gains”.
2 ITA No.2636/PUN/2016 Lt. Col. G.S. Klair
Briefly stated, the facts of the case are that the assessee is an
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.
We have heard the rival submissions and gone through the
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.
In the result, the appeal is allowed for statistical purpose.
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
The Pr.CIT-1, Pune िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “बी” / 5. DR ‘B’, ITAT, Pune; गाड� फाईल / Guard file. / True copy // 6.
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. *