9911796707
TMI Blog2014 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... urvey No. 21/1B and 23/1B were sold for Rs. 38,00,000/-, having a value of Rs. 99,66,000/- for the stamp duty purposes. However, no income in respect of such sale of land was shown by the assessee. The Assessing Officer vide his order u/s 143(3) r.w.s. 147 of the Act dated 30.12.2008 brought to tax capital gain on such sale of land of Rs. 27,07,137/-. Initially, when the matter travelled before the Tribunal, the issue was set-aside to the file of the CIT(A) vide order dated 30.01.2012 in ITA No.1022/PN/2009 with certain directions. The CIT(A) has passed the impugned order in terms of the matter having been set-aside by the Tribunal. 4. In the impugned order, CIT(A) noted that in the case of one of the coowners of the impugned land, Shri Manohar Shridhar Patil, the CIT(A)-I, Thane decided the issue in favour of the assessee holding that the profit on sale of impugned land was assessable in the hands of M/s Viraj Estates Pvt. Ltd.. Accordingly, the addition made in the hands of the assessee was directed to be deleted. Aggrieved with the aforesaid finding of the CIT(A), Revenue is in appeal before us. 5. At the time of hearing, it was a common point between the parties that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty at Survey No.21/1B & 23/1B Deolali, District- Nashik from Dhirajlal Chimanlal Shah & others and Shishir Govardhandas Shah & others for a total consideration of Rs. 18,00,000/-. On 21.08.2000, VEPL entered into a MOU with assessee and two others, namely S/Shri Sampurnanad Keshav Gavande and Shri Bharat V. Shah whereby assessee and the other two persons were to develop the property for consideration payable to VEPL and in terms of the said MOU, the final conveyance deed of the said property was to be directly made in the names of assessee and the other two persons, namely, S/Shri Sampurnanad Keshav Gavande and Shri Bharat V. Shah. On 16.09.2000 by way of a sale-deed one group of the original owners, i.e. Shishir Govardhandas Shah & others executed the sale deed of a part of the property in the names of assessee and S/Shri Sampurnanad Keshav Gavande. On 16.12.2000, the second set of original owners, i.e. Dhirajlal Chimanlal Shah & others executed the sale deed of the remaining portion of the property in the name of assessee and two others, namely, S/Shri Sampurnanad Keshav Gavande and Shri Bharat V. Shah. On 02.02.2002, the MOU dated 21.08.2000 entered by assessee and two other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have carefully considered the rival submissions. The crux of the dispute is as to whether the income arising as a result of the Development Agreement dated 30.12.2003 executed by assessee and two others with Shri Rajesh Patharkar is liable to be assessed in the hands of the assessee or not. The case setup by the assessee is that the said transaction does not belong to him. In this context, we find that the CIT(A) in the course of appellate proceedings before him called for a remand report from the Assessing Officer. In terms of his communication, the CIT(A) required the Assessing Officer to verify from the records/documents as to whether (i) payments for purchase of land are made by VEPL; (ii) sale proceeds are received by VEPL; (iii) income is disclosed by VEPL; and, (iv) all the transactions are recorded in the books of account of VEPL. The CIT(A) categorically records that vide a report dated 18.01.2012, the Assessing Officer reported "that the land in question was purchased by M/s VEPL and the payment was also made by them". Thereafter, the CIT(A) perused other documentary evidences furnished by the assessee, such as, Bank Statement, Ledger Account, Audited Balance-Sheet and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of account and Balance Sheet as on 31.03.2006 of M/s. Viraj Estate Pvt. Ltd. Therefore, it is clearly established by the appellant with the help of documentary evidences that the purchase of land by the appellant and two other co-owners was made for and on behalf of M/s. Viraj Estate Pvt. Ltd. 4.2 Now, coming to the sale of the said land vide a Development Agreement dt. 31.12.2003, it is noticed that the appellant and two other co-owners have agreed to transfer the development rights in the said land to Shri. Rajesh Arun Patharkar for consideration of Rs. 38,00,000/-. The Earnest Money of Rs. 3,51,000/- by cheques has been received and balance amount was to be received later on. The receipt of Earnest Money at Rs. 3,51,000/- is also duly reflected in the books of account of M/s. Viraj Estate Pvt. Ltd. Final sale deed has been executed by Rajesh Arun Patharkar and Ors. to Shrine of Infant Jesus Trust on 19/01/2007 and M/s. Viraj Estate Pvt. Ltd. got its balance consideration of Rs. 30,00,000/- on 14.02.2007 from Shri. Rajesh A. Patharkar. This amount is found credited in the bank account of M/s. Viraj Estate Pvt. Ltd. with HDFC bank on 15/02/2007. On further verification it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VEPL had signed the deeds as a confirming party. Apart therefrom, it is also asserted by the CIT(A) that in the Balance-Sheet of VEPL, the transaction in question has been reflected as advances against purchase of land. On the basis of the said documentary evidence, the CIT(A) has concluded that purchase of land by the assessee and two other co-owners is for and on behalf of the VEPL. We hereby affirm the findings of the CIT(A) as nothing to the contrary has been lead before us by the Revenue. 13. In the same manner, the CIT(A) also examined the impugned Development Agreement dated 30.12.2003 and noticed that consideration thereon has been credited in the books of account of VEPL. The CIT(A) also records that the profits on sale of such land have also been credited in the Profit & Loss Account of VEPL, as a part of business profit. 14. In the face of the aforesaid factual appreciation of the matter, the CIT(A) reached an inescapable conclusion that the land in question was indeed purchased and sold by the assessee and two other co-owners for and on behalf of VEPL. Therefore, the income thereof was not liable to be assessed in the hands of the assessee. Having regard to the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertinent point raised by the assessee to the effect that the transaction did not belong to him. The Tribunal vide order dated 30.01.2012 (supra) precisely required the CIT(A) to address such controversy. Since the said controversy has already been addressed by the CIT(A) in the impugned order, the same has been dealt with by us on its merits after considering the rival stands. Therefore, the reliance placed by the learned Departmental Representative on the decision of the Tribunal in the case of co-owner, Shri Bharat V. Shah dated 30.01.2012 (supra) is of no avail for adjudicating the present controversy. Thus, on this Ground Revenue fails. 18. In the result, the appeal of the Revenue is dismissed." 7. Following the aforesaid precedent, which has been rendered in the case of a co-owner of the impugned lands, we therefore find no reason to interfere with the conclusion drawn by the CIT(A) to the effect that the income, if any, arising as a result of impugned transaction is assessable in the hands of M/s Viraj Estates Pvt. Ltd. and not in the hands of the assessee. The order of the CIT(A) is hereby affirmed and the Revenue has to fail on this aspect. 8. In the result, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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