NIDHIVAN INVESTMENTS & TRADING CO. P. LTD,MUMBAI vs. ASST CIT (OSD) CIR 2(2), MUMBAI

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ITA 3025/MUM/2012Status: DisposedITAT Mumbai23 March 2016AY 2006-075 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal decided to keep the appeals in abeyance until the High Court's decision on the identical issue. The grounds of appeal were decided against the assessee, with a direction that the High Court's decision would apply to the present appeals.

What were the facts?

The assessee and the revenue filed appeals against the CIT(A)'s order for AY 2006-07 and 2007-08. An identical issue regarding capital gains on the transfer of rights from an agreement was pending before the High Court for earlier assessment years.

What were the issues?

Whether the amount received by the assessee results in capital gains. Whether the appeals should be decided pending a decision by the High Court on an identical issue.

Which sections of the Income-tax Act were involved?

Section 158A(3),Section 260A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH,

Before: S/SHRI B. R. BASKARAN & AMARJIT SINGH]

Hearing: 28.12.2015Pronounced: 23.03.2016

Heard together (2 matters)

I.T.A. No.3025/Mum/2012
I.T.A. No.3575/Mum/2012

Read from the judgment's own cause title. This page is filed under one of them.

आदेश / O R D E R &3026/Mum/2013 & 3575&3576/M/12 Assessment Year: 2006-07 & 2007-08

PER AMARJIT SINGH, JM:

1.

The revenue as well as assessee have filed the above mentioned appeals challenging the order dated 24.02.2012 passed by the learned Commissioner of Income Tax (Appeal)-5, Mumbai [hereinafter referred to as ‘the CIT(A)] which relates to assessment year 2006-07 and 2007-08.

2.

We have heard both the parties and perused the materials available on record. The learned representative of the assessee has argued that the department has filed the appeal against the order passed by the Income Tax Appellate Tribunal for the A.Y.2004-05 and for the A.Y.2005-06 before the Hon’ble High Court, Mumbai u/s. 260A of the Act and the following question of law has been admitted:-

“Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in coming to the conclusion that the amount received by the Assessee, as a result of Indenture dated 26th September, 2001 sighed by Late Smt. Bachoobai Woronzow, transferring her rights arising out of an agreement of 2nd January, 1995 with developers, does not result in Capital Gain in the hand of the Assessee?”

3.

It is argued that the identical questions is under consideration before the Tribunal therefore, the decision may be kept in abeyance till the decision of the Hon’ble High Court on this point u/s.158A(1) of the Act however, on the other hand the learned representative of the department refuted the said circumstances.

ITA No.3025&3026/Mum/2013 & 3575&3576/M/12 Assessment Year: 2006-07 & 2007-08 4. Considering the assertions made by both the parties and careful perusal of the materials available on record, it has come to our notice that the issue in controversy has already been adjudicated by the Co-ordinate Bench of the Mumbai Tribunal in assessee’s own case for assessment year 2004-05 & 2005-06, and now this question is pending before the Hon’ble High Court in of 2013 A.Y. 2004-05 and ITA No.1258 of 2013 A.Y. 2005-06. The assessee has also tendered Form No.8 i.e. declaration u/s 153A (1) of the Income Tax Act, 1961, along with the copy of the order dated 10.10.2014 passed by the Hon’ble Bombay High Court wherein the claim of the assessee has been admitted for adjudication. The order of Hon’ble High Court has been reproduced as under:-

“Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in coming to the conclusion that the amount received by the Assessee, as a result of Indenture dated 26th September, 2001 sighed by Late Smt. Bachoobai Woronzow, transferring her rights arising out of an agreement of 2nd January, 1995 with developers, does not result in Capital Gain in the hand of the Assessee?”

It is argued in view of the said circumstance, it is apparent that identical question of law is pending for decision before the Hon’ble High Court, therefore, an order under sub-section 3 of Section 158B is required to passed as the assessee shall not raise such question of law till final decision of the Hon’ble High Court. A copy of the declaration submitted by the assessee has been given to the learned DR who has not objected for the same. &3026/Mum/2013 & 3575&3576/M/12 Assessment Year: 2006-07 & 2007-08 5. In view of such situation, we admit the claim of the assessee under the provisions of sub-section 3 of Section 158A of the Act and decide the grounds of appeal against the assessee with the direction that whenever the question of law raised by the assessee before the Hon’ble High Court relating to the earlier assessment years is replied, the same would apply to the grounds raised by the assessee in the present appeal also. In other words, the issue in controversy in this case would be decided as and when the matter of controversy would be adjudicated by the Hon’ble Bombay High Court; would be decided irrespective of the orders passed by the Tribunal. In view of the above said observation, the grounds raised in the present appeal of the assessee are decided against the assessee.

6.

In view of the said circumstances request to reopen the matter, if law point would be decided in favour of the assessee would be considered in accordance with law.

7.

In the result, the appeal of the assessee is dismissed.

Order pronounced in the open court on 23rd March 2016

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