Income Tax Appellate Tribunal - Mumbai
Ito 25(2)(1), Mumbai vs Ashok G. Kalra, Mumbai on 2 January, 2019
1 Shri Ashok G. Kalra Assessment Year :2007-08 आयकर अपीलीय अिधकरण "ए" ायपीठ मुंबई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH, MUMBAI माननीय ी महावीर िसं ह, ाियक सद एवं माननीय ी मनोज कुमार अ वाल ,ले खा सद के सम ।
BEFORE HON'BLE SHRI MAHAVIR SINGH, JM AND
HON'BLE SHRI MANOJ KUMAR AGGARWAL, AM
आयकरअपील सं./ I.T.A. No.7226/Mum/2016
(िनधा रण वष / Assessment Year: 2007-08)
Income tax Officer-25(2)(1) Shri Ashok G. Kalra
Room No.505, C-10,5 t h Floor, Prop. Marble Kraft
बनाम/
Pratyakshkar Bhavan John Misquitta Service Road,
Bandra Kurla Complex, Vs. Vile Parle (E)
Bandra (E), Mumbai-400 051 Mumbai-400 057
थायीले खासं ./जीआइआरसं ./PAN/GIR No. AADPK-6606-K
(अ पीलाथ"/Appellant) : (#$थ" / Respondent)
&
C.O. No.335/Mum/2018
(िनधा रण वष / Assessment Year: 2007-08)
Shri Ashok G. Kalra Income tax Officer-25(2)(1)
Prop. Marble Kraft Room No.505, C-10,5 t h Floor,
बनाम/
John Misquitta Service Road, Pratyakshkar Bhavan
Vile Parle (E) Vs. Bandra Kurla Complex,
Mumbai-400 057 Bandra (E), Mumbai-400 051
थायीले खासं ./जीआइआरसं ./PAN/GIR No. AADPK-6606-K
(अ पीलाथ"/Appellant) : (#$थ" / Respondent)
Assessee by : Girish Dave &Tanzil R. Padvekar- Ld. AR.s
Revenue by : Satishchandra Rajore - Ld.DR
सुनवाई की तारीख/
: 27/11/2018
Date of Hearing
घोषणा की तारीख /
: 02/01/2019
Date of Pronouncement
आदे श / O R D E R
Per Manoj Kumar Aggarwal (Accountant Member)
1. Aforesaid appeal by revenue for Assessment Year [AY] 2007-08 contest the order of Ld. Commissioner of Income-Tax (Appeals)-37, 2 Shri Ashok G. Kalra Assessment Year :2007-08 Mumbai, [CIT(A)], Appeal No.CIT(A)-37/IT-29/ITO 25(2)(1)/2012-13 dated 07/09/2016 on following effective grounds of appeal:-
1. On the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in deleting the addition of Rs. 1,37,31,300/- on account capital gain tax on transfer of capital asset.
2. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in interpreting the provisions of section 45(3), section 55(3) and section 2(47) of the Income-tax Act.
3. On the facts and in the circumstances of the case and in law the learned Commissioner of Income-tax (Appeals) has erred in completely disregarding the findings of Udaipur Search team.
4. On the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in relying on the judgements of 1). Manohar Pyarelal Sadane (2012) 138 ITD 250, ITAT Pune
2). Yashwant Kalra [ITA No. 534/Jodh/2013]. Whereas, the decisions of the Hon'ble ITAT benches has been based on the decision of Hon'ble Supreme Court in the case of B.C. SrinivasSetty(1981) 128 ITR 294(SC). The facts B.C. SrinivasSetty(1981) 128 ITR 294(SC) are completely different from the facts of the case of assessee. As per the judgement of Honorable Supreme court in the case B.C. SrinivasSetty (l98l) 128 ITR 294(SC) if the date and cost of acquisition of any intangible asset like Goodwill cannot be ascertained then it is not an asset and cannot be taxed under capital gain. However, reference of the above case laws by Ld. CIT(A) in his appellate order is irrelevant as far as facts of the case are concerned as cost of acquisition and date of acquisition was brought on record by AO in his remand report and which has been completely ignored in the Appellate order.
5. On the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has erred in not remanding back the information received from Baluchistan Co-op Housing Society to the file of AO.
6. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of Assessing officer be restored."
Although the assessee has preferred cross-objection against the same, however, the same has not been pressed during hearing before us and therefore, the same stand dismissed in limine.
2.1 Facts in brief are that the assessee being resident individual engaged in the business of marbles under proprietorship concern namely marble kraft was subjected to reassessment proceedings for impugned AY vide order u/s 144 read with Section 147 passed by Ld. 3 Shri Ashok G. Kalra Assessment Year :2007-08 Income Tax Officer-21(1)(1), Mumbai [AO] on 05/03/2013. The income of the assessee was determined at Rs.151.22 Lacs after addition of Long- Term Capital Gains [LTCG] u/s 45(3) for Rs.137.31 Lacs as against the original income which was finally assessed u/s 143(3) at Rs.13.91 Lacs after giving effect to the order of first appellate authority. 2.2 The reassessment proceedings were initiated pursuant to receipt of certain information from Dy. CIT, Udaipur that a search and seizure action was carried out in the case of Shri Lalit Sharma (Surya Estate Group) on 23/04/2008 wherein certain documents pertaining to a partnership firm namely M/s Goverdhan Plaza were seized. 2.3 The stated firm Goverdhan Plaza consisted of 11 partners out of which 4 partners were from Karla family, the assessee being one of them having 16% share in the firm. Upon perusal of statement of Shri Lalit Sharma recorded on 07/05/2008, it came to notice that the firm had acquired a plot of land measuring 12,322 Square Feets from 4 members of the Kalra family at agreed price of Rs.3,300/- per square feet. Since Kalra family had 50% collective share in the firm, other partners agree to pay 50% of market value of the plot [50% of 12322xRs.3,300/- per square feet] amounting to Rs.203.31 Lacs to the Kalra family. The book value of the plot was taken @Rs.1,200/- per square feet in the books of the firm. On the basis of said information, Ld. AO formed an opinion that the assessee was liable to pay LTCG on transfer of plot of land to the firm and accordingly, the assessee was required to explain the same with requisite documentary evidences. Since the assessee could not file the requisite documents / explanation, the assessment was completed on best judgment basis u/s 144 wherein the LTCG was determined and 4 Shri Ashok G. Kalra Assessment Year :2007-08 brought to tax at Rs.137.31 Lacs [computed as assessee's share in the plot being 4161 Square Feets x Rs.3,300/- per square Feets]. 3.1 Aggrieved, the assessee contested the same on legal grounds as well as on merits with partial success before Ld. CIT(A) vide impugned order dated 07/09/2016 wherein the reassessment proceedings were held to be valid by first appellate authority. However, the stand of the assessee, on merits, was accepted against which the revenue is in further appeal before us.
3.2 During appellate proceedings, the assessee filed additional evidences against which remand reports dated 26/11/2013 & 05/11/2014 were called for, considered and confronted to the assessee. After due consideration of remand reports, assessee's replies and submissions, the matter was concluded, on merits, in the following manner: -
7. Ground No.3 to 5 are related with addition of Rs.1,37,31,300/- on account of Long-Term Capital Gain. For the sake of convenience, all these grounds are disposed off together.
7.1 The appellant's family originally belonged to Pakistan (Quetta) and migrated to India. Late Shri. Mukhi Gordhari Das, father of the appellant, was allotted the land in the society, Baluchistan Co-operative Housing Society, on 17/4/1951. The membership with the society was transferred in favor of his son Shri. Ashok Kalra vide letter No. 18/1/81-82 dated 22.11.1981.
7.2 The assessing officer has received an information from DCIT-Circle-1 that certain document pertaining to the partnership for M/s Goverdhan Plaza has been seized during the search procedure in the case of Lalit Sharma, Udaipur on 23-04-
2008. M/s Goverdhan Plaza is a Partnership Firm and Ashok Kalra is having 16% share in the firm Udaypur. The said firm has started commercial complex by acquiring a Plot from Kalra Family. As per partnership deed and the statement of Shri. Lalit Sharma, the said land was introduced to partnership firm © 3300 per sq. ft. The value of land comes to Rs.1,37,31, 300/-.During the scrutiny proceedings, the Appellant has asked the appellant as to why the amount of Rs.1,37,00,000 should not be disallowed. The appellant failed to submit the reply against the notice. Therefore, assessing officer has disallowed Rs.1,37,00,000/-u/s 45(3) and added back to the appellant's total income.
7.3 During the appellate proceedings, appellant stated that the A.O. has computed book value of the land on the basis of statement of a partner/ partners. Merely on 5 Shri Ashok G. Kalra Assessment Year :2007-08 the statements made by certain persons, valuations and consequent additions cannot be made. Reasonable investigation should be made to find out whether the assessee has indeed received any unaccounted income, the value of the land etc. Simply because a certain person has said that a certain sum was paid to another person, does not necessarily mean that the other person has indeed received it. An inquiry must be done with the other person to find out whether such payment was received or no. In the assessee's case, none of the partners of the Kalra family were questioned or examined or inquired with. The whole addition is simply based on the statement of one person.
7.4 Appellant has stated that the A.O. by invoking sub-clause (3) of section 45 of the I.T. Act made an addition of Rs. 1,37,31,300/- on the basis of value of land as a stock in trade and value thereof has been adopted on the basis of statement recorded of another partner Shri. Lalit Sharma dt. 7/3/2009 recorded on oath u/s 131 of the I.T. Act. The appellant is enjoying the right in the said plot by virtue of membership as per the rules, regulations and bye laws the appellant is not in a position either to sell, mortgage, gift, relinquish his right or divest the property by way of any other mode of transfer in favour of any other person/party. Only on his death his nominee is entitled / legal heir is entitled to transfer membership in their name and continue to enjoy the property. He has no legal right of whatsoever nature to sell the property as per the bye laws. Therefore, there is no transfer as per section 45(2). Further, stated that in the partnership deed that the said parties have contributed these plots and house there upon towards their capital contribution in the firm only and never as stock in trade. The intention of the partners was to transfer their property as capital and not as stock. The partners' intention has been stated in the partnership deed and the partnership deed governs the relationship between the partners. The appellant has further stated that the appellant has not transferred his rights to the land to the partnership firm. The rights in the land are still vested with the appellant since the rights to the land cannot be transferred as per the bye laws to any person. Therefore, there is no extinguishment of rights in the land and therefore there is no transfer.
7.5 Appellant has stated that he had inherited the above piece of land from his father and neither the father nor the appellant has incurred any cost on the purchase/ allotment of the said plot. If cost of acquisition is nil, no capital gain is taxable. Further stated that in the appellant's brother's case, Yashwant Kalra ITA. 534/Jodh/2013], the Hon'ble ITAT held that the reopening proceedings is invalid and that there is no capital gain in the said case. Since the facts of the appellant case is exactly same as that of Yashwant Kalra the judgment of ITAT is squarely applicable to his case too. Before discussing the above ground of appeal on merit, it is pertinent to peruse provisions of section 45(3) of the Act, which reads as under:
Section 45(3) of the Income Tax Act states:
"the profits or gains arising from the transfer of a capital asset by a person to a firm or other association of persons or body of individuals (not being a company or a co-operative society) in which he is or becomes a partner or member, by way of capital contribution or otherwise, shall be chargeable to tax as his income of the previous year in which such transfer takes place and, for the purposes of section 48, the amount recorded in the books of account of the firm, association or body as the value of the capital asset shall be deemed to be the full value of the consideration received or accruing as a result of the transfer of the capital asset".6
Shri Ashok G. Kalra Assessment Year :2007-08 7.6 On a plain reading of the section, it is very clear that for section 45(3) to apply, transfer has to occur. The section clearly states such income shall be chargeable to tax as his income of the previous year in which such transfer takes place. Transfer in relation to a capital asset as defined by the Income Tax Act as per Section 2(47) includes, -
(i) the sale, exchange or relinquishment of the asset; or
(ii) the extinguishment of any rig/its therein; or
(iii) the compulsory acquisition thereof under any law: or
(iv) in a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by hint, such conversion or treatment :1 [or] (iva) the maturity or redemption of a zero coupon bond: or]
(v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53.4 of the Transfer of Property Act, 1882 (4 of 1882) ;or
(vi) any transaction (whether by way of becoming a member of or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring. or enabling the enjoyment of any immovable properly.
On a reading of the above two sections it can be understood that as per section 45(3) there has to be a 'transfer' of the asset and as per section 2(47) in relevance to the assessee s case, transfer is the sale. exchange or relinquishment of the asset; or the extinguishment of any rights therein; or a case where the asset is converted by the owner thereof into. or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment. 7.7 It is clear that transfer of asset is effected when there is sale, exchange or relinquishment of the asset, extinguishment of any rights therein or where the asset is converted or is treated as, stock-in-trade of a business, such conversion or treatment. Sale exchange or relinquishment of an asset can take place when there is an existing right to sell, exchange or relinquish such rights. Sale and agreement to sell as defined by the Sale of Goods Act. Sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part- owner and another. Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. 7.8 "Property" means the general property in goods, and not merely a special property. In layman's terms 'property' means 'ownership'. 'General Property' means 'full ownership'. Thus, transfer of 'general property' is required to constitute a sale. If goods are given for hire, lease, hire purchase or pledge, 'general property' is not transferred and hence it is not a 'sale'. However, 'property' and 'possession' are not synonymous. Transfer of Possession does not mean transfer of property. e.g. - if goods are handed over to transporter or godown keeper, possession is transferred but 'property' remains with owner. Similarly, if goods remain in possession of seller after sale transaction is over, the 'possession' is with seller, but 'property' is with the buyer. Appellant's case, there is neither a transfer of property nor a transfer of possession and consequently there is no sale.
7Shri Ashok G. Kalra Assessment Year :2007-08 7.9 From perusal of remand report, submissions and comments on remand report it is found that the A.O. has made assessment by invoking of provision of section 45(3) of I.T. Act. Provision of Section 45 of the Act Is charging section for charging capital gains. The provisions computing the profits or gains under that head is mentioned in section 48 and no provision at variance with such computation provisions can be applied for determining the chargeable profits and gains. That all transactions covered by section 45 have to fall under the governance of the computation provision and thus, the said provisions have to be read and applied as an integrated code. Section 48 specifies the mode of computation and deduction. Income chargeable under the head "Capital gains" has to be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital assets: (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) cost of acquisition of the capital asset and the cost of any improvement thereto.
7.10 Further, the opening portion of section 48 states that while computing income chargeable under the head "Capital gains" the income shall be computed by deducting from the full value of the consideration the specified items and one of them is cost of acquisition. Therefore, in the absence of ascertained cost of acquisition the change under the head 'Capital gains' cannot be value of the consideration. In other words, income which is chargeable under the head 'Capital gains' cannot be equated with full value of the consideration when the Legislature mandates that the specified items such as (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) cost of acquisition of the capital asset and the cost of any improvement thereto under section 48 have to be deducted.
7.11 From the assessment order, it transpires that the AO has solely relied upon the statement of Shri. Lalit Sharma and did not carry out any worthwhile independent inquiry in the matter. He has totally ignored the documentary evidences submitted by the appellant. The AO has not pointed out any defect in the above-mentioned submission of the appellant. In my opinion, merely based on the statement of person without any corroborative evidence will not make the transactions, in question, as unexplained. As such, in the absence of any contrary evidence placed on record, the transaction cannot be treated as unexplained. There is no evidence brought in the assessment order or in remand proceeding to prove the above conclusion, by the AO. The assessment proceedings were wide open and the AO could have carried out independent investigation and find out the truth of the facts. Further, appellant has submitted sufficient evidence in respect of the property is question, was allotted to appellant's late father free of cost. There was neither cost of acquisition incurred by the appellant's father nor the appellant. For levying of capital gain first on one has to ascertain the cost of acquisition, year of acquisition, indexed cost of acquisition and then consideration. cost of acquisition is nil, no capital gain is taxable in view of the following decided case laws.
ManoharSinghji P. Jadejadt. 9/10/2004 (2006) 281 ITS 19 (Guj) B.C.SrinivasaSetty (1981) 128 ITS 294 (SC) Manohar Pyarelal Sadane (2012) 138 lTD 250, ITAT Pune 7.12 In a similar issue, The Hon'ble ITAT Pune Bench in the case of Manohar Pyarelal Sadane (2012) 138 lTD 250, following the ratio of law laid down by the Hon'ble Supreme Court in the case of B C Srinivasa Setty 128 ITS 294 held when 8 Shri Ashok G. Kalra Assessment Year :2007-08 there is no cost of acquisition, no capital gain can be levied. In the said case the Hon'ble member held that the land in question was not having cost because the same was allotted to the father of the assessee being a refugee from Pakistan by the Government of India at relevant point of time which is not in dispute, so the land in question was acquired by the father of assessee free of cost, therefore there is no question of capital gain on transfer of such land, neither does it fall in item section 49(1)(I to iv) of the LT Act, in as much as the Hon'ble Bench also taken into consideration amendment made to section 55 w.e.f. 1/4/1988. The Tribunal noted that the said land was allotted to the assessee's father by Government of India because his family had migrated from Pakistan and took shelter at relevant point of time. Further there was no cost to the assessee and the cost of acquisition was also not determinable. ITAT Pune in Manohar Pyarelal Sadane. (2012) 138 lTD 250 held as follows: -
"In view of the above factual and legal discussion, we hold that the land in question was not having cost because the same was allotted to father of the assessee being refugee from Pakistan by Government of India at relevant point of time which is not in dispute. So the land in question was acquired by father of the assessee free of cost Therefore, there is no question of capital gain on transfer of such land More so because it does not fall in specified items under section 490) (i to iv) of the Act Accordingly. the same is not liable for capital gain. The Assessing Officer is directed accordingly."
Further, appellant has stated that in the appellant's brother's case, Yashwant Kaira [ITA No.534/Jodh/2013], the Hon'ble ITAT held in para 9 that land was allotted to father free of cost, and hence since there is no cost of acquisition to appellant, capital gain is not applicable. Relevant part of observation are as under: -
7. After considering the rival submissions, we have found that both the A.O. and the ld.
CIT(A) have incorporated the reasons for reopening in their respective orders. The A.O. has not show-caused the assessee that income chargeable to tax has escaped the assessment. Therefore, the reopening on the basis of some other party's findings cannot be said to be a valid finding in the eyes of law. The reasons for reopening seem to be scanty and casual and not as per the provisions of section 48 of the Act. The finding given by any other authority in third party's case without establishing the nexus and reasons to come a belief that income has escaped assessment, such type of proceedings cannot be endorsed. We, therefore, hold that action initiated by the A.O. under section 147 read with section 148 of the Act is not valid one. Therefore, we allow legal ground and quash the reassessment proceedings.
8. However, it would be in the fitness of things to settle the issue for good in case we decide the issue involved on merit of the case in this appeal. It was argued that there is no cost of acquisition in the land. Therefore, no capital gain is leviable. The A.O. while submitting his remand report has mentioned at page no.4 by relying on the decision of the Hon'ble Gujarat High Court in the case of CIT vs. Manoharsinhji P. Jadeja reported in 281 ITR 19 (Guj) and the decision of ITAT, Pune Bench in the case of Manohar Pyarelal Sadane vs. ITO, Ward- 3(1), Dhule reported in 138 ITD 250. The Hon'ble Gujarat High Court has held as under :-
"Held,that the importance of the date of acquisition cannot be lost sight taking into consideration the scheme of the Act. Under the Act both short term capital gains and long-term capital gains are chargeable to tax but the treatment thereof is different. In the present case, admittedly, the assets has been acquired by a mode of acquisition specified in section 49(1)(iii)(a) of the Act and thus the asset in question was a longterm capital asset but neither the cost nor the date of acquisition were ascertainable. The Income Tax authorities were not right in working out the capital gains at Rs.41,11,414/- so as to bring the same to tax under the head "Capital gains"9
Shri Ashok G. Kalra Assessment Year :2007-08 The piece of land was already in the name of father of the assessee being migrated from Pakistan at the relevant point of time. This fact is not in dispute at all. Thus, the land in question was acquired by the father and the assessee free of cost, therefore, there is no question of calculation of capital gain on transfer of such land which does not have a cost in the hands of the vendor. Therefore, the entire amount is not liable for capital gain tax. There are numerous decisions in this direction which are not required to be repeated. Accordingly, we order to delete the impugned addition on merit.
7.13 In view of the above, it is found that the appellant has not incurred any cost of acquisition of the asset because the same was allotted to Appellant's father by Government of Rajasthan as appellant's father was a refugee from Pakistan. The property did not have any cost of acquisition, capital gain is not applicable in respect of the same. It is also found that the introduction of land in the firm as capital contribution has not affected and the land is in possession of the appellant. The appellant has also stated that at the time of entering into partnership appellant was under the bona fide belief that he can contribute the land as capital to the firm. It was later realized that he could not do so and so the firm was then closed and dissolved and the said land is currently in the possession of the appellant. The Baluchistan Co-operative Housing Society has also informed this office that at present the said land is registered in the name of Ashok Kalra, son of Mukul Das vide letter dated 06.03.2015.
7.14 Considering the totality and judicial decision, particularly in the case of Yashwant Kalra, a brother of the appellant, on similar issue by the Udaipur ITAT, the land in question was not having any cost because the same was allotted to father of the appellant free of cost and the said land acquired by the appellant free of cost. Therefore, there is no question of calculation of capital gain on transfer of such land. The A.O. is directed to delete the addition of Rs.1,37,00,000/-.
Aggrieved, the revenue is in further appeal before us.
4. The Ld. Departmental Representative [DR], Shri Satish Chandra Rajore assailing the stand of first appellate authority submitted that the case laws relied upon by Ld. CIT(A) were not applicable to the facts of the case since the cost of acquisition in the present case was Nil and not indeterminate / unascertainable as wrongly noted by Ld. CIT(A) and therefore, the provisions of Section 45(2) / 45(3) were applicable to the facts of the present case. Per Contra, Ld. Authorized Representative for Assessee [AR], Shri Girish Dave submitted that case was covered by the binding judgement of Jodhpur Tribunal rendered in other co-owner's 10 Shri Ashok G. Kalra Assessment Year :2007-08 case titled as Yashwant Kalra, ITA No. 534/Jodh/2013 order dated 28/11/2013, a copy of which has been placed on record.
5.1 We have carefully heard the rival contentions and perused relevant material on record including documents placed in the paper-book and judicial pronouncements relied upon by respective representatives. Upon perusal of impugned order, it is noted the assessee's family originally belonged to Pakistan and migrated to India as refugee. The father of the assessee was allotted the stated land by Government of Rajasthan in Baluchistan Co-operative Housing Society on 17/04/1951 and the membership with the society was transferred in assessee's favor on 22/11/1981. The said plot of land did not have any cost of acquisition. As per the rules, regulations and bye laws of the society, the assessee could not sell, mortgage, gift, relinquish his right or divest the property by way of any other mode of transfer in favor of any other person /party. Only upon his death, his nominees / legal heirs were entitled to transfer membership in their name and therefore, the assessee had no legal right whatsoever to sell the property as per the by laws of the society. It was further noted that the assessee had not transfer the land to the partnership firm and the rights in the land were still vested with the assessee and therefore, there was no extinguishment of right and hence no transfer could have been said to have taken place under law in terms of Section 2(47) of the Act. The fact that the property still stood in assessee's name was confirmed by the society vide letter dated 06/03/2015.
5.2 The assessee had submitted that the said land was inherited from his father and neither father nor the assessee had incurred any cost on 11 Shri Ashok G. Kalra Assessment Year :2007-08 the purchase / allotment of the said land and therefore, no capital gain was taxable in terms of the judgement of Hon'ble Apex Court rendered in B.C.Srinivasasetty [128 ITR 294] & Hon'ble Gujarat High Court rendered in ManoharSinghji P.Jadeja [281 ITR 19] as followed by Pune Tribunal in Manohar Pyarelal Sadane [138 ITD 250]. Reliance was placed on the cited decision of Jodhpur Tribunal rendered in co-owner's case which was duly considered by Ld. CIT(A). The operative portions of few of the decisions have already been reproduced in the impugned order. 5.3 It has further been noted by Ld. CIT(A) that the impugned additions were made merely on the basis of third-party statements without carrying out any further investigation to find out whether the assessee had actually received any unaccounted money or not. No Corroborative evidences were brought on record by Ld. AO, in this regard. 5.4 The due consideration of above facts as well as judicial pronouncements led the Ld. CIT(A) to delete the impugned additions. 5.5 We find that before us, the above stated facts remain unrebutted. No contrary judgment has been brought on record by the revenue. Nothing on record suggest that the decision of Jodhpur Tribunal rendered in co-owner's case has ever been over-ruled by any higher judicial authority. Therefore, respectfully following the binding judicial pronouncements, we confirm the impugned order.
6. Resultantly, the revenue's appeal as well as assessee's cross- objections stands dismissed.
Order pronounced in the open court on 02nd January, 2019.
Sd/- Sd/-
(Mahavir Singh) (Manoj Kumar Aggarwal)
ाियक सद / Judicial Member लेखा सद / Accountant Member
12
Shri Ashok G. Kalra
Assessment Year :2007-08
मुंबई Mumbai; िदनां क Dated : 02/01/2019
Sr.PS, Jaisy Varghese
आदे शकी ितिलिपअ!ेिषत/Copy of the Order forwarded to :
1. अपीलाथ"/ The Appellant
2. #$थ"/ The Respondent
3. आयकरआयु+(अपील) / The CIT(A)
4. आयकरआयु+/ CIT- concerned
5. िवभागीय#ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai
6. गाड0 फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअिधकरण, मुंबई / ITAT, Mumbai.