TMI Blog2015 (1) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... h are in line with the stand of the Department in the cases of other farmers who are similarly placed as the assessee, itself show that in the impugned proceedings, Revenue has departed from its accepted position. There is no justification brought out by the Revenue for such a departure. Therefore, on the principle of uniformity of approach which is required to be adopted by the Revenue in relation to similarly placed assessees as laid down by the Hon’ble Supreme Court, in our view, the action of the income-tax authorities in the present case to initiate proceeding u/s 147/148 to assess capital gains on the basis of the agreement dated 26.03.1999 with MTDC is not justified. - Decided in favour of assessee. - ITA No.1062/PN/2013, ITA No.1063/PN/2013, ITA No.1064/PN/2013 ITA No.1065/PN/2013 ITA No.769/PN/2010 ITA No.1088/PN/2013 - - - Dated:- 30-12-2014 - Shri G. S. Pannu And Shri R. S. Padvekar,JJ. For the Petitioner : Mr. Sunil V. Pathak Mr. D.R. B arve For the Respondent : Mr. A. K. Modi ORDER Per G. S. Pannu, AM The captioned six appeals have been preferred by different assessee s who belong to one family and since common issues are involved they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see was that there is no transfer of land as per the agreement dated 26.03.1999 with MTDC; and, secondly, that the capital gain on transfer of land to MTDC was not taxable in assessment year 1999- 2000 but was to be taxed for the period/years in which consideration is receivable from MTDC. The aforesaid contentions of the assessee did not find favour with either the Assessing Officer or the CIT(A), and therefore assessee is in appeal before us. In sum and substance, the income-tax authorities have taxed the capital gain earned by the assessee in pursuance of the agreement dated 26.03.1999 with MTDC in assessment year 1999-2000 while the assessee has shown such capital gains over the years when the consideration is receivable from MTDC. In this context, the Ld. Representative for the assessee has furnished copies of computations of income for assessment years 1999-2000 to 2014-15 which show that the consideration was received from MTDC over the period starting from the previous year relevant to the assessment years 2004-05 to 2013-14. The income has been offered by the assessee accordingly and not in assessment year 1999-2000 when no consideration whatsoever was received by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also been referred to and in-particular clause (14) thereof. In terms of the said clause, it is prescribed that if MTDC was to incur losses in the development of the Township, such loss would be shared by all the farmers in proportion to their landholdings. On this basis, it is sought to be pointed out that on 26.03.1999 assessee was not sure as to the exact quantum of income that he would receive on transfer of land to MTDC. In view of clause (14), there was also a possibility that no consideration was receivable by the assessee because of incurrence of losses by MTDC. Thus, as on 26.03.1999 there was no crystallization of consideration receivable by the assessee as it depended on the sale proceeds accruing on sale of flats and plots, which was receivable over the years. Under these circumstances, it has been pointed out that there was no justification for charging capital gain in assessment year 1999-2000. 8. Explaining the operating mechanism of the development agreement, the Ld. Representative pointed out that after the development of Township was started by MTDC and it received the sale proceeds from the customers, each year it intimated the farmers about their share in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o MTDC and in written I received the consideration as per the said contract from MTDC over a period of years starting from F.Ys. 2003 - 04 to 2012 - 13. Every year, based on the sales effected of the plots and the flats, MTDC would issue a certificate to each farmer about the amount due to him from MTDC and on the basis of such certificate, I have shown the capital gains on transfer of my land to MTDC over the years from F.Ys. 2003- 04 to 2012-13. I further state that I was cultivating this land till 2004 approx. when the possession of the land was handed over to MTDC for development and I had disclosed agricultural income therefrom in my returns till that year. On 26.03.1999, when I made an MOU with MTDC, I had not handed over the possession of the said land to MTDC. Like me, there were about 350 farmers who were the signatories to the MOU dated 26.03.1999 with MTDC. Most of them, have disclosed the capital gains on transfer of land to MTDC over the years from F.Ys. 2003 - 04 to 2012 - 13 and they have not shown the capital gains in A.Y. 1999 - 2000 on the basis of contract with MTDC. The IT dept. accepted their claims and taxed the capital gains over the years. In some of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of the case of the Revenue. In sum and substance, the case made out by the Revenue is that assessee along with other land owners executed an agreement dated 26.03.1999 with MTDC whereby it assigned development rights of the land to MTDC. As per the Revenue, the agreement dated 26.03.1999 is nothing but a development agreement which provided MTDC with possession of the land and therefore such a transaction was to be understood as a transfer within the meaning of section 2(47)(v) of the Act. In support, reliance has been placed on the judgement of the Hon ble Bombay High Court in the case of Shri Chaturbhuj Kapadia vs. CIT, 260 ITR 491 (Bom) and on that basis, it is sought to be pointed out that on execution of the development agreement dated 26.03.1999, the capital gain was liable to be taxed. On assessee s objection that other similarly placed assessees have not been subjected to tax for capital gain in assessment year 1999-2000 and that the taxation of capital gains have been accepted over the years, the Ld. Departmental Representative could not controvert the same. At this point, we may also observe that the Department was allowed a specific opportunity to controvert the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Notably, the Revenue has not demonstrated any reason in the present cases so as to justify departure of the Department from its accepted stand in similarly placed other cases where capital gains in pursuance to agreement with MTDC dated 26.03.1999 have been taxed over the years and not in assessment year 1999- 2000. It is also not denied that the assessee has declared capital gains in the return for assessment year 2003-04 onwards on the basis of the entitlement certificates issued by MTDC in terms of the agreement dated 26.03.1999. Infact, in the case two of the appellants before us, namely, S/Shri Amol Krishna Ashtekar and Atul Krishna Ashtekar, the Assessing Officer has made scrutiny assessment for assessment year 2007-08 u/s 143(3) dated 17.12.2009 wherein the capital gains declared by the assessee in the returns of income have been assessed. Ostensibly, such assessments, which are in line with the stand of the Department in the cases of other farmers who are similarly placed as the assessee, itself show that in the impugned proceedings, Revenue has departed from its accepted position. There is no justification brought out by the Revenue for such a departure. Therefore, on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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