Shri Jagannath R. Bhosale, v. ACIT, Satara Cir. Satara,

CO 19/PUN/2010 | 2005-2006
Pronouncement Date: 09-09-2010 | Result: Dismissed

Appeal Details

RSA Number 1924523 RSA 2010
Bench Pune
Appeal Number CO 19/PUN/2010
Duration Of Justice 1 month(s) 28 day(s)
Appellant Shri Jagannath R. Bhosale,
Respondent ACIT, Satara Cir. Satara,
Appeal Type Cross Objection
Pronouncement Date 09-09-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-09-2010
Assessment Year 2005-2006
Appeal Filed On 12-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH : B PUNE BEFORE SHRI I.C. SUDHIR JM AND SHRI D. KARUNAKARA RAO AM I.T.A. NO. 334/PN/2009 : A.Y. 2005-06 ASSTT. COMMISSIONER OF INCOME-TAX APPELLANT SATARA CIRCLE SATARA VS. SHRI JAGANNATH RAMCHANDRA BHOSALE RESPO NDENT A/P KHODASHI TAL. KARAD DIST. SATARA PAN NOT AVAILABLE C.O. NO. 19/PN/2010 (ARISING FROM ITA NO. 334/PN/2009) (ASSTT. YEAR : 2005-06) SHRI JAGANNATH RAMCHANDRA BHOSALE CROSS OBJ ECTOR A/P KHODASHI TAL. KARAD DIST. SATARA PAN NOT AVAILABLE VS. ASSTT. COMMISSIONER OF INCOME-TAX RESPONDENT SATARA CIRCLE SATARA REVENUE BY : SHRI DAMLE ASSESSEE BY : SHRI M.K. KULKARNI ORDER PER D. KARUNAKARA RAO AM THE APPEAL BY THE REVENUE AND THE CROSS OBJECTION B Y THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE CIT( A) DATED 26- ITA NO. 334/PN/2009 & C.O. NO.19/PN/2010 SHRI JAGANNATH R. BHOSALE A.Y. 2005-06 - 2 - 11-2008 FOR A.Y. 2005-06. THE APPEAL AND THE CROSS OBJECTIONS ARE BEING DISPOSED OFF BY THIS COMMON OR DER FOR THE SAKE OF CONVENIENCE. 2. IN THE CASE OF ASSESSEE SHRI JAGANNATH RAMCHANDR A BHOSALE THE REVENUE IS IN APPEAL AGAINST THE DELET ION OF ADDITION ON ACCOUNT OF CAPITAL GAIN. RELEVANT FACT S ARE AS FOLLOWS. THE ASSESSEE JOINTLY OWNED THE LAND IN QUE STION ALONG WITH FIVE MEMBERS OF THE FAMILY AND RECEIVED RS. 2 0 00 000/- AS ADVANCE PENDING TRANSFER OF PROPERTY. TILL THE D ATE OF ASSESSMENT THE PROPERTY HAD NOT BEEN TRANSFERRED. THE ADVANCE OF RS. 20 00 000/- HAS BEEN JOINTLY RECEIVE D BY ALL THE FIVE CO-OWNERS. IN THIS BACKGROUND THE CIT(A) OBS ERVED THAT RECEIPT IN THE HANDS OF EACH OF FAMILY MEMBERS AMOU NTS TO RS. 4 00 000/- WHICH IS 1/5 TH OF ADVANCE RECEIVED FOR SALE OF LAND. THE TOTAL CONSIDERATION AGREED UPON WAS RS. 62.01 L AKHS WHICH WORKED OUT TO A SALE CONSIDERABLE RECEIVABLE OF RS. 12.40 LAKHS EACH BY FOUR CO-OWNERS. THE AMOUNT TREA TED AS SALE CONSIDERATION IN THE ASSESSMENT WOULD BE ONLY RS. 12.4 LAKHS AND NOT RS. 62 LAKHS AS ASSESSED BY THE A.O. 4. WE FIND IT UNDISPUTED THAT THERE WAS NO TRANSFER OF THE PROPERTY IN LIEU OF ABOVE SAID AGREEMENT FOR WHICH THE ADVANCE OF RS. 20 00 000/- WAS PASSED ON TO THE CO-OWNERS OF THE PROPERTY. SO THERE IS NO QUESTION OF CAPITAL GAIN AS DONE BY THE A.O. THE CAPITAL GAIN AROSE ONLY ON TRANSFER O F PROPERTY OR CAPITAL ASSET. THE ASSESSEE AND THE CO-OWNERS STILL RETAIN COMPLETE POSSESSION OVER THE LAND. THEREFORE IT CA NNOT ALSO BE SAID TO BE A TRANSFER AS A RESULT OF PERFORMANCE OF A CONTRACT AS DEFINED IN THE RELEVANT ACT. SO THERE IS NO QUEST ION OF ARISING ITA NO. 334/PN/2009 & C.O. NO.19/PN/2010 SHRI JAGANNATH R. BHOSALE A.Y. 2005-06 - 3 - ANY CAPITAL GAIN IN THE HANDS OF ASSESSEE OR ITS CO -OWNERS. IN VIEW OF THE FACTS AND CIRCUMSTANCES THE ASSESSMENT OF INCOME UNDER THE HEAD CAPITAL GAINS IS NOT JUSTIFIED. THE CIT(A) HAS RIGHTLY DELETED THE SAME. WITHOUT PREJUDICE TO THE ABOVE THE DEFINITION OF CAPITAL ASSET IN SECTION 2(14) EXCLUD ES AGRICULTURAL LAND. THE AGRICULTURAL LAND THEREFORE IS NOT CAPI TAL ASSET FOR THE PURPOSE OF THE ACT. SO THERE WAS NO OCCASION F OR CAPITAL GAIN EVEN IF IT IS PRESUMED THAT TRANSFER TOOK PLA CE. THE A.O IS AT LIBERTY TO EXAMINE THE ISSUE OF REMISSION OF LIABILITY IN THE FUTURE YEARS AND WHETHER ANY INCOME ARISES IN THE A SSESSEES HANDS ON TRANSFER OF PROPERTY OR FORFEITURE OF ADVA NCE RECEIVED. AS A RESULT THE APPEAL OF THE REVENUE IS DISMISSED . 5. THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BE COME ACADEMIC AND INFRUCTUOUS IN THE LIGHT OF OUR DECISI ON IN THE APPEAL FILED BY THE REVENUE ON MERITS. THE SAME IS THEREFORE DISMISSED. 6. SIMILAR ISSUE ARISES IN THE APPEAL FILED BY THE REVENUE IN THE CASE OF SMT. SUNANDA J. BHONSALE WHO IS THE CO -OWNER OF THE PROPERTY. THE FACTS BEING SIMILAR SO FOLLOWING THE SAME REASONING WE ARE NOT INCLINED TO INTERFERE WITH TH E FINDINGS OF THE CIT(A) WHO HAS DELETED THE ADDITION ON ACCOUNT OF CAPITAL GAIN AS DISCUSSED ABOVE. CONSEQUENTLY THE CROSS O BJECTION FILED BY THE ASSESSEE HAS ALSO BECOME IN VIEW OF OU R DECISION IN THE APPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEALS OF THE REVENUE AS WEL L AS CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ITA NO. 334/PN/2009 & C.O. NO.19/PN/2010 SHRI JAGANNATH R. BHOSALE A.Y. 2005-06 - 4 - ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DAY OF SEPTEMBER 2010. SD/- SD/- (I.C. SUDHIR) (D. KARUNAKARA RAO ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED THE 9TH SEPTEMBER 2010. US COPY OF ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) KOLHAPUR 4. CIT KOLHAPUR 5. ITAT D.R. B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE.