TMI Blog2020 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjudication and the Assessing Officer shall complete the said exercise in accordance with law as expeditiously as possible. - TCA.Nos.42 And 45 of 2019 - - - Dated:- 3-3-2020 - Mr. Justice M. Sathyanarayanan And Mr. Justice Abdul Quddhose For the Appellant in both Appeals : Mr.V.S.Jayakumar For the Respondent in both Appeals : Mr.J.Narayanasamy COMMON JUDGMENT M. SATHYANARAYANAN,J., (1)By consent, both the Tax Case Appeals are taken up together for final hearing and are disposed of by this common judgment. (2)The facts narrated in brief, for the purpose of disposal of these appeals, are as follows:- 1. The appellant/assessee Company filed return of income on 30.10.2007 for the Assessment Year 2007-08 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the Previous Year relating to the Assessment Year 2007-08. It was further contended that the status of the said property till date, remains vacant with no developments took place and the Developer has not carried out any activity relating to construction for the reason that the project may not be successful and therefore, the appellant/assessee Company may be called upon to return the Refundable Security Deposit. 4. The Appellate Authority, had also taken into consideration the Order of Assessment, especially, with regard to the fact that the owners had allowed the Developer to enter upon the project of the land for the purpose of construction and also allowed the Developer to open the site office and also granted some rights to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Appeals. 8. The ITAT, in paragraph No.5.3 of the order, had given a finding that as per the explanation under Section 147 of the IT Act, it is very clear that due to non-disclosure of Capital Gain by the appellant/assessee Company, the income chargeable to tax, had escaped assessment and the appellant/assessee Company did not produce anything before the CIT [Appeals] to show as to how there is no transfer of impugned property in the Assessment Year and how the provisions of Section 247[5] of the IT Act is applicable and consequently, held that the entire re-assessment proceeding is valid and thereby, upheld the action of the Assessing Officer. 9. The ITAT also recorded a positive finding that there is a transfer under Section 2[47] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No.15619 of 2017 arising out of SLP [Civil] No.35248 of 2015 would squarely apply to the case of the appellant for the impugned Assessment Year 2007-08? 4. Whether on the facts and circumstances of the case, the Tribunal was right in law in holding that ''possession'' as envisaged by Section 2[47][v] and Section 53-A of the Transfer of Property Act, 1882 was actually delivered by the appellant during the impugned Assessment Year 2007-08? 5. Whether on the facts and circumstances of the case, the Tribunal was right in law in disallowing the expenditure amounting to ₹ 7,95,000/- towards brand promotion and advertisement incurred by the appellant for the impugned Assessment Year 2007-08? TCA.No.45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court of India also affirmed the above cited decision in Balbir Singh Maini's case. (5)The learned counsel for the appellant/assessee Company would submit that in the light of the ratio laid down in Balbir Singh Maini's case that the income from the Capital Gain on a transaction which never materialised, at best, can be termed only as a hypothetical income and that the assessee did not acquire any right to receive income. (6) Per contra, Mr.J.Narayanasamy, learned Standing counsel appearing for the respondent/Revenue would submit that in the light of the concurrent findings recorded by the authorities below and that the judgment of the Hon'ble Apex Court in Balbir Singh Naini's case [cited supra], also came into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains ''arose'' from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.'' (9)It is the submission of the learned counsel for the appellant/assessee Company that he is not pressing the substantial question of Law No.5 in TCA.No.42/2019. Insofar as Substantial Question of Law No.1 in TCA.No.42 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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