Ito Bangalore v. Dr Arvind Goverdhan Bangalore

In The Income Tax Appellate Tribunal A Bench Bangalore Before Shri Arun Kumar Garodia Accountant Member A Nd Shri Lalit Kumar Judicial Member Appeal No Assessment Year Appellant Respondent Ita No 1353 Bang 2015 2010 11 The Income Tax Officer Ward 1 2 1 Bangalore Dr Arvind Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Agupg 9327 J Ita No 1354 Bang 2015 2009 10 Mrs Monica Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Afnpk 1319 J Ita No 1355 Bang 2015 Mrs Margrit Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Aeapg 5028 A Ita No 1356 Bang 2015 Mrs Anitha Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Abupl 4623 P C O No 93 Bang 2017 In Ita No 1353 Bang 2015 2010 11 Dr Arvind Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Agupg 9327 J The Income Tax Officer Ward 1 1 2 Bangalore C O No 94 Bang 2017 In Ita No 1354 Bang 2015 2009 10 Mrs Monica Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Afnpk 1319 J C O No 95 Bang 2017 In Ita No 1355 Bang 2015 Mrs Margrit Goverdhan No 97 Kasturba Road Bangalore 560 001 Pan Aeapg 5028 A C O No 96 Bang 2017 In Ita No 1356 Bang 2015 Mrs Anitha Goverdhan Loebbert No 97 Kasturba Road Bangalore 560 001 Pan Abupl 4623 P Assessee S By Shri Chandrashekar Advocate Revenue By Shri B R Ramesh Jcit Dr Date Of Hearing 12 1 2 2017 Date Of Pronouncement 1 3 1 2 2017 O R D E R Per Bench All These Four Appeals Are Filed By The Revenue Ass Essees And These Four Cos Are Filed By The Assessee And These Are Directed Ag Ainst A Combined Order Of Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 2 Of 21 Ld Cit A 1 Bangalore Dated 24 08 2015 For Asse Ssment Year 2009 10 In Respect Of Four Different But Connected Assessees All These Appeals And Cos Were Heard Together And Are Being Disposed Of By Wa Y Of This Common Order For The Sake Of Convenience 2 The Grounds Raised By The Revenue In These Appea Ls Are As Under Ita No 1353 Bang 2015 1 The Order Of The Learned Cit Appeals In So Fa R As It Is Prejudicial To The Interest Of Revenue Is Opposed To Law And The Facts And Circumstances Of The Case 2 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property As Contemplated In Section 53 A Of The Transfer Of Property Act Without Appreciating T He Fact That The Clause X C And Para 6 1 Of The Agreement Clearly I Ndicate That Constructive Possession Has Been Handed Over To The Builder 3 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property By Placing Reliance On The Decision Of Itat Bangalore In The Cases Of Sri Nag Araj And Smt Satyaprema In Ita No 136 137 Bang 2012 Without Ap Preciating The Fact That Said Decision Has Not Been Accepted B Y The Department And An Appeal U S 260 A Has Been Admitted By The Honble High Court Of Karnataka 4 The Cit A Has Failed To Appreciate That The Ass Essee Had Executed General Power Of Attorney In The Name Of The Develo Per On 27 11 2008 To Sell The Built Up Area Of The Said Pr Operty And As Per Agreement Dated 02 02 2009 The Refundable Deposit Was Converted Into Non Refundable Deposit Which Corroborate The F Act That The Possession Was In Fact Handed Over To The Developer In Pursuance Of Jda 5 The Cit A Erred In Holding That The Act Of Bri Nging Non Refundable Deposit To Tax In The Impugned Asst Yea R Is Premature By Placing Reliance On The Decision Of Itat Bangal Ore In The Case Of M S Chaitanya Properties Pvt Ltd In Ita No 1 25 Bang 2013 Without Appreciating The Fact That The Said Decisio N Has Not Been Accepted By The Department And An Appeal U S 260 A H As Been Admitted By The Honble High Court Of Karnataka 6 The Cit A Has Erred In Holding That The Decisi On Of The Honble High Court Of Karnataka In The Case Of Cit Vs T K Dayalu Is Not Applicable To The Facts Of The Assessees Case 7 The Cit A Has Erred In Holding That The Sources For Mutual Fund Investments And Time Deposits Stand Explained Without Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 3 Of 21 Appreciating The Fact That No Evidence Was Filed Be Fore The Ao In This Regard And Allowed The Assessees Claim On The Basis Of Additional Evidence Without Giving An Opportunity To The Ao To Verify The Additional Evidence As Required Under Ru Le 46 A 8 For These And Such Other Grounds That May Be Urg Ed At The Time Of Hearing It Is Humbly Prayed That The Order Of The Cit A Be Reversed And That Of The Assessing Officer Be Restored 9 The Appellate Craves Leave To Add To Alter To Amend Or Delete Any Of The Grounds That May Be Urged At The Time Of Hea Ring Of The Appeal Ita No 1354 Bang 2015 1 The Order Of The Learned Cit Appeals In So Fa R As It Is Prejudicial To The Interest Of Revenue Is Opposed To Law And The Facts And Circumstances Of The Case 2 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property As Contemplated In Secti On 53 A Of The Transfer Of Property Act Without Appreciating The F Act That The Clause X C And Para 6 1 Of The Agreement Clearly Indicate That Constructive Possession Has Been Handed Over To The Builder 3 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property By Placing Reliance On T He Decision Of Itat Bangalore In The Cases Of Sri Nagaraj And Smt Saty Aprema In Ita No 136 137 Bang 2012 Without Appreciating The Fac T That Said Decision Has Not Been Accepted By The Department An D An Appeal U S 260 A Has Been Admitted By The Honble High Cour T Of Karnataka 4 The Cit A Has Failed To Appreciate That The Ass Essee Had Executed General Power Of Attorney In The Name Of The Develo Per On 27 11 2008 To Sell The Built Up Area Of The Said Pr Operty And As Per Agreement Dated 02 02 2009 The Refundable Deposit Was Converted Into Non Refundable Deposit Which Corroborate The F Act That The Possession Was In Fact Handed Over To The Developer In Pursuance Of Jda 5 The Cit A Erred In Holding That The Act Of Bri Nging Non Refundable Deposit To Tax In The Impugned Asst Yea R Is Premature By Placing Reliance On The Decision Of Itat Bangalore In The Case Of M S Chaitanya Properties Pvt Ltd In Ita No 125 Bang 2013 Without Appreciating The Fact That The Said Decisio N Has Not Been Accepted By The Department And An Appeal U S 260 A H As Been Admitted By The Honble High Court Of Karnataka 6 The Cit A Has Erred In Holding That The Decisi On Of The Honble High Court Of Karnataka In The Case Of Cit Vs T K Dayalu Is Not Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 4 Of 21 Applicable To The Facts Of The Assessees Case 7 The Cit A Has Erred In Holding That The Sources For Mutual Fund Investments And Time Deposits Stand Explained Witho Ut Appreciating The Fact That No Evidence Was Filed Before The Ao I N This Regard And Allowed The Assessees Claim On The Basis Of Additi Onal Evidence Without Giving An Opportunity To The Ao To Verify T He Additional Evidence As Required Under Rule 46 A 8 For These And Such Other Grounds That May Be Urg Ed At The Time Of Hearing It Is Humbly Prayed That The Order Of The Cit A Be Reversed And That Of The Assessing Officer Be Restored 9 The Appellate Craves Leave To Add To Alter To Amend Or Delete Any Of The Grounds That May Be Urged At The Time Of Hea Ring Of The Appeal Ita No 1355 Bang 2015 1 The Order Of The Learned Cit Appeals In So Fa R As It Is Prejudicial To The Interest Of Revenue Is Opposed To Law And The Facts And Circumstances Of The Case 2 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property As Contemplated In Section 53 A Of The Transfer Of Property Act Without Appreciatin G The Fact That The Clause X C And Para 6 1 Of The Agreement Clear Ly Indicate That Constructive Possession Has Been Handed Over T O The Builder 3 The Cit A Erred In Holding That The Assessees Have Not Parted With Possession Of The Property By Placing Reliance On The Decision Of Itat Bangalore In The Cases Of Sri Nag Araj And Smt Satyaprema In Ita No 136 137 Bang 2012 Without App Reciating The Fact That Said Decision Has Not Been Accepted B Y The Department And An Appeal U S 260 A Has Been Admitted By The Honble High Court Of Karnataka 4 The Cit A Has Failed To Appreciate That The Ass Essee Had Executed General Power Of Attorney In The Name Of The Develo Per On 27 11 2008 To Sell The Built Up Area Of The Said Pr Operty And As Per Agreement Dated 02 02 2009 The Refundable Deposit Was Converted Into Non Refundable Deposit Which Corroborate The F Act That The Possession Was In Fact Handed Over To The Developer In Pursuance Of Jda 5 The Cit A Erred In Holding That The Act Of Bri Nging Non Refundable Deposit To Tax In The Impugned Asst Yea R Is Premature By Placing Reliance On The Decision Of Itat Bangal Ore In The Case Of M S Chaitanya Properties Pvt Ltd In Ita No 1 25 Bang 2013 Without Appreciating The Fact That The Said Decisio N Has Not Been Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 5 Of 21 Accepted By The Department And An Appeal U S 260 A H As Been Admitted By The Honble High Court Of Karnataka 6 The Cit A Has Erred In Holding That The Decisi On Of The Honble High Court Of Karnataka In The Case Of Cit Vs T K Dayalu Is Not Applicable To The Facts Of The Assessees Case 7 The Cit A Has Erred In Holding That The Sources For Mutual Fund Investments And Time Deposits Stand Explained Without Appreciating The Fact That No Evidence Was Filed Be Fore The Ao In This Regard And Allowed The Assessees Claim On The Basis Of Additional Evidence Without Giving An Opportunity To The Ao To Verify The Additional Evidence As Required Under Ru Le 46 A 8 The Cit A Erred In Deleting The Addition Made O N Account Of Interest Income From J K Bank On The Ground That The Said Income Was Accrued To The Assessee After 31 03 2009 Without Appreciating The Fact That The Form 26 As Available On Record Clearly Indicate That The Said Income Was Paid Cr Edited To The Assessee On 31 12 2008 And 02 03 2009 Of Rs 76 712 And Rs 1 22 740 Respectively 9 For These And Such Other Grounds That May Be Urg Ed At The Time Of Hearing It Is Humbly Prayed That The Order Of The Cit A Be Reversed And That Of The Assessing Officer Be Restored 10 The Appellate Craves Leave To Add To Alter To Amend Or Delete Any Of The Grounds That May Be Urged At The Time Of Hea Ring Of The Appeal Ita No 1356 Bang 2015 1 The Order Of The Learned Cit Appeals In So Fa R As It Is Prejudicial To The Interest Of Revenue Is Opposed To Law And The Facts And Circumstances Of The Case 2 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property As Contemplated In Section 53 A Of The Transfer Of Property Act Without Appreciatin G The Fact That The Clause X C And Para 6 1 Of The Agreement Clear Ly Indicate That Constructive Possession Has Been Handed Over T O The Builder 3 The Cit A Erred In Holding That The Assessees H Ave Not Parted With Possession Of The Property By Placing Reliance On The Decision Of Itat Bangalore In The Cases Of Sri Nag Araj And Smt Satyaprema In Ita No 136 137 Bang 2012 Without Appreciating The Fact That Said Decision Has Not Be En Accepted By The Department And An Appeal U S 260 A Has Been Admi Tted By The Honble High Court Of Karnataka Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 6 Of 21 4 The Cit A Has Failed To Appreciate That The Ass Essee Had Executed General Power Of Attorney In The Name Of The Develo Per On 27 11 2008 To Sell The Built Up Area Of The Said Pr Operty And As Per Agreement Dated 02 02 2009 The Refundable Deposit Was Converted Into Non Refundable Deposit Which Corroborate The F Act That The Possession Was In Fact Handed Over To The Developer In Pursuance Of Jda 5 The Cit A Erred In Holding That The Act Of Bri Nging Non Refundable Deposit To Tax In The Impugned Asst Yea R Is Premature By Placing Reliance On The Decision Of Itat Bangal Ore In The Case Of M S Chaitanya Properties Pvt Ltd In Ita No 1 25 Bang 2013 Without Appreciating The Fact That The Said Decisio N Has Not Been Accepted By The Department And An Appeal U S 260 A H As Been Admitted By The Honble High Court Of Karnataka 6 The Cit A Has Erred In Holding That The Decisi On Of The Honble High Court Of Karnataka In The Case Of Cit Vs T K Dayalu Is Not Applicable To The Facts Of The Assessees Case 7 For These And Such Other Grounds That May Be Urg Ed At The Time Of Hearing It Is Humbly Prayed That The Order Of The Cit A Be Reversed And That Of The Assessing Officer Be Restored 8 The Appellate Craves Leave To Add To Alter To Amend Or Delete Any Of The Grounds That May Be Urged At The Time Of Hea Ring Of The Appeal 3 The Grounds Raised By The Assessee In Its Cos Ar E As Under C O No 93 Bang 2017 1 The Order Of The Learned Commissioner Of Income Tax Appeals In So Far It Is Against The Respondent Cross Objecto R Is Opposed To Law Facts Equity And Weight Of Evidence And Circumsta Nces Of The Case 2 The Respondent Cross Objector Denies Himself Li Able To Be Assessed Over And Above The Total Income Reported B Y The Respondent Cross Objector Of Rs 62 50 000 As On The Facts And Circumstances Of The Case 3 The Learned Commissioner Of Income Tax Appeals Is Not Justified In Law In Not Holding That The Order Of R E Assessment Passed By The Learned Assessing Officer Under Secti On 143 3 R W S 147 Of The Act Is Bad In Law Since The Mand Atory Conditions For Assuming Jurisdiction For Issuance O F A Notice Under Section 148 Of The Act Did Not Exist Or Havin G Not Been Complied With And Consequently The Reassessment Re Quires To Be Cancelled On The Facts And Circumstances Of The Cas E Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 7 Of 21 4 The Learned Commissioner Of Income Tax Appeals Is Further Not Justified In Not Holding That The Order Of Reassess Ment Is Further Bad In Law And Void Ab Initio As The Learned Assessing Off Icer Had No Reasons To Believe That The Income Of The Appellant Has Esc Aped Assessment Under The Facts And Circumstances Of The Case 5 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Ought To Have Granted Benefit Of Exemptio N Under Section 54 F Of The Act On The Facts And Circumstanc Es Of The Case 6 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Learned Ass Essing Officer Has Erred In The Calculation Of Cost Of Acq Uisition Of The Property On The Facts And Circumstances Of The Case 7 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Values Adop Ted By The Learned Assessing Officer In The Entire Computation Of Capital Gains Are Wrong And The Capital Gains Require To Be Recomputed On The Facts And Circumstances Of The Ca Se 8 Without Prejudice The Learned Assessing Officer Is Not Justified In Law In Charging The Interest Under Sec Tion 234 A And 234 B Of The Act And Further The Calculation Of Interest Under Section 234 A And 234 B Of The Act Is Not In Accordance With Law Since The Rate Method Of Calculation Qua Ntum Is Not Discernable From The Order Of Assessment On The Fac Ts And Circumstances Of The Case 9 The Respondent Cross Objector Craves Leave To Add Alter Delete Substitute Or Modify Any Of The Grounds Urged Above 10 For The Above And Other Grounds That May Be Urg Ed At The Time Of The Hearing Of The Appeal The Respondent Cross Objector Prays That The Appeal May Be Allowed In Th E Interest Of Equity And Justice C O No 94 Bang 2017 1 The Order Of The Learned Commissioner Of Income Tax Appeals In So Far It Is Against The Respondent Cross Objector Is Opposed To Law Facts Equity And Weig Ht Of Evidence And Circumstances Of The Case 2 The Respondent Cross Objector Denies Herself Li Able To Be Assessed Over And Above The Total Income Reported B Y The Respondent Cross Objector Of Rs 62 82 900 As On The Facts And Circumstances Of The Case Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 8 Of 21 3 The Learned Commissioner Of Income Tax Appeals Is Not Justified In Law In Not Holding That The Order Of R E Assessment Passed By The Learned Assessing Officer Under Secti On 143 3 R W S 147 Of The Act Is Bad In Law Since The Mand Atory Conditions For Assuming Jurisdiction For Issuance O F A Notice Under Section 148 Of The Act Did Not Exist Or Havin G Not Been Complied With And Consequently The Reassessment Re Quires To Be Cancelled On The Facts And Circumstances Of The Case 4 The Learned Commissioner Of Income Tax Appeals Is Further Not Justified In Not Holding That The Order Of Reassessment Is Further Bad In Law And Void Ab Init Io As The Learned Assessing Officer Had No Reasons To Believe That The Income Of The Appellant Has Escaped Assessment Unde R The Facts And Circumstances Of The Case 5 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Ought To Have Granted Benefit Of Exemptio N Under Section 54 F Of The Act On The Facts And Circumstances Of Th E Case 6 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Learned Ass Essing Officer Has Erred In The Calculation Of Cost Of Acquisition Of The Property On The Facts And Circumstances Of The Case 7 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Values Adop Ted By The Learned Assessing Officer In The Entire Computation Of Capital Gains Are Wrong And The Capital Gains Require To Be Recomputed On The Facts And Circumstances Of The Case 8 Without Prejudice The Learned Assessing Officer Is Not Justified In Law In Charging The Interest Under Sec Tion 234 A And 234 B Of The Act And Further The Calculation Of Int Erest Under Section 234 A And 234 B Of The Act Is Not In Accord Ance With Law Since The Rate Method Of Calculation Quantum Is N Ot Discernable From The Order Of Assessment On The Fac Ts And Circumstances Of The Case 9 The Respondent Cross Objector Craves Leave To Add Alter Delete Substitute Or Modify Any Of The Grounds Urged Above 10 For The Above And Other Grounds That May Be Urg Ed At The Time Of The Hearing Of The Appeal The Respondent Cross O Bjector Prays That The Appeal May Be Allowed In The Interest Of Equity And Justice Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 9 Of 21 C O No 95 Bang 2017 1 The Order Of The Learned Commissioner Of Income Tax Appeals In So Far It Is Against The Respondent Cross Objector Is Opposed To Law Facts Equity And Weig Ht Of Evidence And Circumstances Of The Case 2 The Respondent Cross Objector Denies Herself Li Able To Be Assessed Over And Above The Total Income Reported B Y The Respondent Cross Objector Of Rs 74 33 640 As On The Facts And Circumstances Of The Case 3 The Learned Commissioner Of Income Tax Appeals Is Not Justified In Law In Not Holding That The Order Of R E Assessment Passed By The Learned Assessing Officer Under Secti On 143 3 R W S 147 Of The Act Is Bad In Law Since The Mand Atory Conditions For Assuming Jurisdiction For Issuance O F A Notice Under Section 148 Of The Act Did Not Exist Or Havin G Not Been Complied With And Consequently The Reassessment Re Quires To Be Cancelled On The Facts And Circumstances Of The Case 4 The Learned Commissioner Of Income Tax Appeals Is Further Not Justified In Not Holding That The Order Of Reassessment Is Further Bad In Law And Void Ab Init Io As The Learned Assessing Officer Had No Reasons To Believe That The Income Of The Appellant Has Escaped Assessment Unde R The Facts And Circumstances Of The Case 5 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Ought To Have Granted Benefit Of Exemptio N Under Section 54 F Of The Act On The Facts And Circumstances Of Th E Case 6 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Learned Ass Essing Officer Has Erred In The Calculation Of Cost Of Acquisition Of The Property On The Facts And Circumstances Of The Case 7 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Values Adop Ted By The Learned Assessing Officer In The Entire Computation Of Capital Gains Are Wrong And The Capital Gains Require To Be Recomputed On The Facts And Circumstances Of The Case 8 Without Prejudice The Learned Assessing Officer Is Not Justified In Law In Charging The Interest Under Sec Tion 234 A And Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 10 Of 21 234 B Of The Act And Further The Calculation Of Int Erest Under Section 234 A And 234 B Of The Act Is Not In Accord Ance With Law Since The Rate Method Of Calculation Quantum Is N Ot Discernable From The Order Of Assessment On The Fac Ts And Circumstances Of The Case 9 The Respondent Cross Objector Craves Leave To Add Alter Delete Substitute Or Modify Any Of The Grounds Urged Above 10 For The Above And Other Grounds That May Be Urg Ed At The Time Of The Hearing Of The Appeal The Respondent Cross O Bjector Prays That The Appeal May Be Allowed In The Interest Of Equity And Justice C O No 96 Bang 2017 1 The Order Of The Learned Commissioner Of Income Tax Appeals In So Far It Is Against The Respondent Cross Objector Is Opposed To Law Facts Equity And Weig Ht Of Evidence And Circumstances Of The Case 2 The Respondent Cross Objector Denies Herself Li Able To Be Assessed Over And Above The Total Income Reported B Y The Respondent Cross Objector Of Rs 62 53 220 As On The Facts And Circumstances Of The Case 3 The Learned Commissioner Of Income Tax Appeals Is Not Justified In Law In Not Holding That The Order Of R E Assessment Passed By The Learned Assessing Officer Under Secti On 143 3 R W S 147 Of The Act Is Bad In Law Since The Mand Atory Conditions For Assuming Jurisdiction For Issuance O F A Notice Under Section 148 Of The Act Did Not Exist Or Havin G Not Been Complied With And Consequently The Reassessment Re Quires To Be Cancelled On The Facts And Circumstances Of The Case 4 The Learned Commissioner Of Income Tax Appeals Is Further Not Justified In Not Holding That The Order Of Reassessment Is Further Bad In Law And Void Ab Init Io As The Learned Assessing Officer Had No Reasons To Believe That The Income Of The Appellant Has Escaped Assessment Unde R The Facts And Circumstances Of The Case 5 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Ought To Have Granted Benefit Of Exemptio N Under Section 54 F Of The Act On The Facts And Circumstances Of Th E Case 6 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Learned Ass Essing Officer Has Erred In The Calculation Of Cost Of Acquisition Of The Property On The Facts And Circumstances Of The Case Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 11 Of 21 7 Without Prejudice The Learned Commissioner Of I Ncome Tax Appeals Failed To Appreciate That The Values Adop Ted By The Learned Assessing Officer In The Entire Computation Of Capital Gains Are Wrong And The Capital Gains Require To Be Recomputed On The Facts And Circumstances Of The Case 8 Without Prejudice The Learned Assessing Officer Is Not Justified In Law In Charging The Interest Under Sec Tion 234 A And 234 B Of The Act And Further The Calculation Of Int Erest Under Section 234 A And 234 B Of The Act Is Not In Accord Ance With Law Since The Rate Method Of Calculation Quantum Is N Ot Discernable From The Order Of Assessment On The Fac Ts And Circumstances Of The Case 9 The Respondent Cross Objector Craves Leave To Add Alter Delete Substitute Or Modify Any Of The Grounds Urged Above 10 For The Above And Other Grounds That May Be Urg Ed At The Time Of The Hearing Of The Appeal The Respondent Cross O Bjector Prays That The Appeal May Be Allowed In The Interest Of Equity And Justice 4 The Ld Dr Of Revenue Supported The Assessment O Rder He Also Submitted That This Issue Is Covered In Favour Of The Revenue And Against The Assessee By The Judgment Of Honble Karnataka High Court Rendered I N The Case Of Cit Vs Dr T K Dayalu As Reported In 202 Taxman 531 He Also Drawn Our Attention To Para No 9 5 Of The Assessment Order And Pointed Ou T That It Is Noted By The Ao In This Para Of The Assessment Order That As Per Ri Der 2 Dated 02 02 2009 All The Four Parties To The Jda Namely Mrs Margrit Gov Erdhan Dr Arvind Goverdhan Dr Anita Goverdhan And Mrs Monica Gove Rdhan Had Re Negotiated Clause 13 Of The Jdas Dated 27 11 2008 E Xecuted With M S Ashed Properties And Investment Pvt Ltd And As Per The Recitals Of The Said Rider Which Is Reproduced By The Ao On Page No 8 Of The Assessment Order Owners Have Received A Sum Of Rs 2 5 Crores As Non Refund Able Deposit He Further Pointed Out That As Against Receipt Of Non Refundab Le Deposit Of Rs 2 50 Crores The Ao Has Determined The Sale Consideratio N For Transfer Of 40 Of Land I E 3711 Sq Ft At Rs 6 500 Per Sq Ft Bei Ng Guidance Value As On 31 03 2009 As Per Sro And The Same Has Been Determi Ned At Rs 2 41 21 500 Which Is Less Than The Amount Of Non Refundable Deposit Received By These Four Assessees Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 12 Of 21 5 As Against This Ld Ar Of Assessee Supported Th E Order Of Cit A Regarding The Judgment Of Honble Karnataka High Court Render Ed In The Case Of Cit Vs Dr T K Dayalu Supra It Is Submitted That This Judgment Is Not Applicable In The Facts Of The Present Case Because In That Case The Possession Was Given In The Year Itself In Which The Jda Was Executed As Pe R An Affidavit Of The Assessee In That Case But In The Present Case Actu Al Possession Was Given Much After And In The Present Year Possession Was Given Only For The Purpose Of Development Without Any Right In The Land In S Upport Of His Contention He Submitted That The Copy Of Jda Is Available On Page S 13 To 43 Of Paper Book And In Particular Our Attention Was Drawn To Para No 1 2 Of Jda And It Was Pointed Out That As Per This Para The Owners Of Th E Land Had Irrevocably Permitted And Authorized The Developers To Enter Up On The Schedule B Property And To Develop It Along With The Remainder Portion Share Of The Schecdule A Property By Constructing A Building The Reon As Per Sanctioned Plan Subject To The Terms Of This Agree Ment And It Is Made Clear That Nothing Contained In This Jda Shall Be Constru Ed As Delivery Of Possession In Part Performance Of Any Agreement Of Sale Under Section 53 A Of The Transfer Of Property Act 1908 Or Section 2 47 V Of The Income Tax Act 1961 He Also Drawn Our Attention To Para No 6 2 Of Jda And Pointed Out That As Per This Para Of Jda It Was Made Clear That This Handi Ng Over Possession Is Not A Delivery Of Possession As Part Performance Of Any A Greement Of Sale Under Section 53 A Of The Transfer Of Property Act 1908 Or Section 2 47 V Of The Income Tax Act 1961 And The Possession Was Given O Nly To Develop The Property Thereafter He Drawn Our Attention To Pa Ra No 15 Of The Jda And Pointed Out That The Land Owners Had Handed Over Al L The Original Document Of Title To M S Aks Law Associates Advocate Who Shal L Hold The Same In Escrow On Behalf Of The Owners Till The Completion Of The Entire Project And On Formation Of An Association Of Owners Of All The Apartments In The Building To Be Constructed On The Schedule A Property The Escr Ow Agent Shall Hand Over The Original Documents Of Title To Such A Ssociation Organisation Of Owners As The Case May Be Thereafter He Drawn Our Attention To Para No 19 Of The Jda And Pointed Out That As Per This Para Of Jda The Owners Have To Pay Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 13 Of 21 All The Taxes Levies And Cess In Respect Of The Sc Hedule Property Up To The Date Of The Completion Of The Developed Area An D Up To The Date When The Proportionate Undivided Interest In Land In The Sch Edule Property Is Handed Over To The Developer He Pointed Out That This Para Of The Jda Shows That Ownership Right Was With The Owners Of The Lan D Only And Not With The Developer Then He Drawn Our Attention To Page Nos 44 To 66 Of Paper Book And Submitted That Sale Deed Was Executed On 05 04 2013 And The Owners Have Executed The Said Sale Deed In 2013 In Favour Of The Nominee Of The Developer Mr Dev Roy And Ms Nilanjana Roy Being T He Actual Purchasers Of The Property And The Developer Is Also One Of The P Arties Of The Sale Deed Thereafter He Drawn Our Attention To Page No 67 Of Paper Book Containing Letter Dated 16 04 2013 Issued By Regency Property Manag Ement Services Addressed The Present Assessees Asking The Assessee To Pay The Apartment Maintenance From 01 04 2013 To 31 03 2014 Relianc E Was Placed By Him On Two Tribunal Orders Rendered In The Case Of M S Ch Aitanya Properties Pvt Ltd Vs Jcit Osd In Ita No 52 Bang 2013 Dated 27 03 2 015 And On The Tribunal Order Rendered In The Case Of Shri K M Nagaraj And Smt Sathya Prema Vs Cit In Ita Nos 136 137 Bang 2012 Dated 14 08 201 4 Available On Pages 68 To 98 And 99 To 126 Of Paper Book 6 Regarding Ground No 7 In Ita Nos 1353 1354 1355 Bang 2015 Learned Dr Of The Revenue Submitted That The Assessment Ord Ers Were Passed By The Ao U S 144 In Some Cases But In No Case These Docu Ments Were Made Available Before The Ao And These Were Made Availab Le For The First Time Before The Cit A And He Decided The Issue On The Basis Of These Documents Without Obtaining Remand Report From The Ao And Therefore This Is In Violation Of Rule 46 A Of It Rules 1962 And Hence This Issue Should Go Back To The File Of Cit A For Fresh Decision After Obtaining Remand Report Fr Om The Ao Learned Ar Of The Assessee Supported The Order Of Cit A 7 Learned Dr Of The Revenue Further Submitted That One More Issue Is Raised As Per Ground No 8 In Ita No 1355 Bang 2015 And On T His Issue The Order Of Cit A Should Be Reversed And That Of Ao Should Be Restored In View Of This Fact Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 14 Of 21 That As Per Form 26 As Available On Record It Is Cl Early Indicated That The Said Income Was Paid Credited To The Assessee In The P Resent Year And Therefore The Same Is Taxable In The Present Year The Ld A R Of Assessee Supported The Order Of Cit A 8 Regarding The Cos Filed By The Assessees The Ld Ar Of Assessee Submitted That The Ground In Respect Of Validity Of Reassessm Ent Proceedings Is Not Pressed In All These Four Cross Objections And Ther Efore The Relevant Ground In This Regard Is Rejected As Not Pressed He Further Submitted That There Is Only One Issue Remaining In The Cos Of The Assessee That The Assessee Is Eligible For Deduction U S 54 F Of The It Act He Submitted Tha T This Issue Was Not Decided By The Cit A On This Basis That He Has Held That C Apital Gain Is Not Taxable In The Present Year Because No Transfer Is Taking Plac E In The Present Year He Submitted That If The Order Of Cit A Is Confirmed On That Aspect Then This Ground Of Assessee In Co Will Become Infructuous Bu T If The Order Of Cit A Is Reversed On That Aspect Regarding Taxability Of Cap Ital Gain In The Present Year Then This Issue Regarding Allowability Of Deduction U S 54 F Is To Be Decided He Submitted Copy Of Tribunal Order Rendered In The Ca Se Of Shri K G Adaveeshaiah Vs Ito In Ita No 2043 Bang 2016 Date D 23 03 2017 And Drawn Our Attention To Para Nos 7 8 Of This Tribun Al Order And Pointed Out That In That Case The Same Issue Regarding Allowability Of Deduction U S 54 54 F Was Restored Back To The File Of Ao And Therefore In The Present Case Also This Issue May Be Restored Back To The File Of Ao The Ld Dr Of Revenue Submitted That The Same May Be Restored Back To The File Of C It A 9 We Have Considered The Rival Submissions First We Decide The Appeals Of The Revenue And The Main Issue In All These Four Appeal S Of The Revenue Is Regarding Taxability Of Capital Gain In The Present Year Because The Jda Was Executed In The Present Year And As Per The Judgmen T Of Honble Karnataka High Court Rendered In The Case Of Cit Vs Dr T K Dayalu Supra Capital Gain Is Liable To Be Taxed In The Year In Which The Jda Was Executed And Possession Is Handed Over Along With Part Payment Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 15 Of 21 10 First We Examine The Applicability Of This Judg Ment Of Honble Karnataka High Court Rendered In The Case Of Cit Vs Dr T K Daya Lu Supra In That Case The Question Of Law Was Raised Before The Honble Karna Taka High Court Was This As To Whether On The Facts And Circumstances Of The Case The Capital Gains In Respect Of The Property In Question Was Liable Unde R The Act For The Assessment Year 1996 97 In That Case As Per The Facts Noted By Honble Karnataka High Court In Para No 7 Of The Judgment It Was Noted T Hat The Possession Of The Schedule Property Was Handed Over On 30 05 1996 As Per The Material On Record Under These Facts It Was Held By Honble Karnataka High Court That Capital Gains Has To Be Taxed In The Year 1997 98 N Ot In The Year 2003 04 As Contended By The Assessee Hence It Is Seen That T His Is The Judgment Of Honble Karnataka High Court That The Year In Which Possession Of The Property Has Been Handed Over To The Developer As Per Jda C Apital Gain Is Liable To Tax In That Year And Not In The Year In Which The Proje Ct Has Been Completed 11 Now We Examine The Facts Of The Present Case In The Present Case The Jda Has Been Executed On 27 11 2008 And As Per Para No 6 Of Jda The Owners Of The Land Had Handed Over The Free And Vacant Posses Sion Of Land To The Developer For The Purpose Of Developing The Same Al Ong With The Remainder Portion Of Schedule A Property As Per Letter Date D 16 04 2013 Available On Page 63 Of The Paper Book Intimating To These Asses Sees About Payment Of Maintenance Charges By These Assessees W E F 01 04 2013 It Is Also Intimated That The Maintenance Charges Shall Be Paid On Or Be Fore Handing Over Possession Of The Apartment This Goes To Show That Possession Of The Constructed Area Will Be Given By The Builder To Th E Land Owners After Payment Of Maintenance Charges No Body Can Give Something To Anybody What He Does Not Have Since The Builder Will Give Possession To The Land Owner After Payment Of Maintenance Charges It Is Implied That The Buil Der Was In The Possession Of The Constructed Area I E Flats To Be Received By T He Land Owners I E The Present Assessees It Also Means That Valid Possession Was Given By These Assessees To The Builder In The Present Year Because In The P Resent Year The Jda Talks About Handing Over Of Possession And There Is No Ot Her Document Shown As Per Which The Possession Was Handed Over To The De Veloper In Any Subsequent Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 16 Of 21 Year This Is Also Noted By The Ao On Page No 7 Of The Assessment Order In Para No 9 5 That As Per Rider 2 Dated 02 02 2009 The Parties To The Jda Being These Four Assessees Before Us Had Renegotiated Cla Use 13 Of The Jdas Dated 27 11 2008 And Had Received A Sum Of Rs 2 5 Crores As Non Refundable Deposit Since In The Present Case Not Only Jda W As Executed But Possession Was Also Handed Over To The Developer And Non Refun Dable Deposit Was Received By The Assessee To The Extent Of Rs 2 50 Crores In Our Considered Opinion This Judgment Of Honble Karnataka High Co Urt Rendered In The Case Of Cit Vs Dr T K Dayalu 9 Supra Is Squarely Applica Ble 12 Now We Examine The Applicability Of Two Tribuna L Orders On Which Reliance Has Been Placed By Ld Ar Of Assessee The First Tribu Nal Order Cited By Him Is The Tribunal Order Rendered In The Case Of M S Chaitan Ya Properties Pvt Ltd Vs Jcit Osd Supra In Para Nos 8 11 To 8 13 Of Th Is Tribunal Order It Is Noted By The Tribunal That The Land Which Was Subjected T O Joint Development Is Stock In Trade Of The Assessee And The Tribunal Als O Noted That The Application Of Section 45 Is Limited To Sub Section 2 Of Sect Ion 45 In As Much As The Impugned Lands Are Held As Stock In Trade The Tri Bunal Also Held That The Provisions Of Section 53 A Of The Transfer Of Proper Ty Act Applies To An Asset Held As A Capital Asset Investment Not To Stock In Trade For The Purpose Of Ready Reference These Three Paras From This Tri Bunal Order Being 8 11 To 8 13 Are Reproduced As Under From Page No 91 Of Th E Paper Book 8 11 From The Above Facts Of The Case The Relevan T Clauses Of The Jda Which Determine The Actual Point In Time As To When The Ownership Of The Land Gets Transferred From The Ass Essee It Is Clear That No Part Of It Is Transferred For And Up To The A Y 2011 12 Much Less On 05 02 2005 Itself 8 12 The Fact That The Land Which Is Subjected To J Oint Development Is Stock In Trade Of The Assessee Is A Very Important Fact To Take Note Off In Order To Decide The Exact Point In Time As To When The Ownership In These Lands Held As Stock In Trade Get S Actually Transferred From The Assessee 8 13 The Application Of Section 45 Is Limited To Su B Section 2 Of Section 45 In As Much As The Impugned Lands Are Hel D As Stock In Trade The Provisions Of Section 53 A Of The Tran Sfer Of Property Act Apply To An Asset Held As A Capital As Set Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 17 Of 21 Investment Not To Stock In Trade 13 In The Present Case The Asset In Question Is C Apital Asset And Not Stock In Trade And Therefore In Our Considered Opinion This Trib Unal Order Is Not Applicable In The Present Case 14 The Second Tribunal Order Cited By Ld Ar Of As Sessee Is The Tribunal Order Rendered In The Case Of Shri K M Nagaraj And Smt Sathya Prema Vs Cit Supra In That Case The Facts Are Noted By The Tribunal In Para No 2 Of The Tribunal Order As Per Which The Assessees Were Join T Owners Of The Property And The Assessees Entered Into Jda With M S Glory Estate P Ltd Now Known As Mantri Developers P Ltd On 26 10 1994 And As Per The Said Agreement The Developers Agreed To Construct Apartments On Th E Property And Retain 70 Of The Undivided Share Of Land Of The Property And 70 Of The Super Structure As And Towards Developers Share And The Remaining 30 Of The Built Up Area And Proportionate Undivided Share Of Land Of The Proper Ty Was To Be Given To The Share Of The Assessees The Tribunal Also Noted Th At The Developers Did Not Comply With The Jda Till The Year 2000 And In The Y Ear 2000 The Developers Intended To Start Construction As Per The Jda The Tribunal Also Noted That At That Point Of Time The Assessees Agreed To Sell Th Eir 30 Of The Share Of The Built Up Area And Proportionate Undivided Share Of Land Of 30 Of The Property To M S Glory Estate P Ltd For A Sum Of Rs 8 35 Crores And The Agreement Dated 11 11 2000 Was Accordingly Entered Into Betwe En The Parties And The Developers Agreed To Pay The Sale Consideration In 35 Instalments Over A Period Of 36 Months From The Date Of Agreement Of Sale As Per The Installment Schedule Annexed To The Agreement Of Sale For Ass Essment Year 2001 02 The Notices U S 148 Was Issued On 28 03 2008 To Th E Assessees And In Response To The Same The Assessees Filed A Letter Before The Ao Requesting The Ao To Treat The Original Return Filed As A Return F Iled In Response To The Notice U S 148 Of The It Act 15 The Tribunal Further Noted In Para No 4 Of The Order That In The Course Of The Assessment Proceedings The Question As To Whether There Would Be Any Capital Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 18 Of 21 Gain Arising Out Of The Sale Agreement Dated 11 11 2000 Was Considered By The Ao And Query Was Raised And The Assessees In Respon Se To A Query By The Ao In This Regard Filed A Common Letter Dated 29 12 20 08 Before The Ao In Which They Took A Stand That No Capital Gain Accrues By V Irtue Of Agreement Dated 11 11 2000 In Assessment Year 2001 02 The Ao Comp Leted The Assessment U S 143 3 R W S 147 Of The It Act And Admittedly There Is No Discussion In The Assessment Order Regarding The Assessees Claim Mad E In The Letter Dated 29 12 2008 Regarding Capital Gain Not Having Accrue D During The Previous Year Relevant To Assessment Year 2001 02 As Claimed By T He Assessee But The Fact Remains That The Assessee Filed The Letter And The Same Was Taken Cognizance Of By The Ao Before Completing The Assessment Ther Eafter The Cit In Exercise Of His Powers U S 263 Of The Act Was Of The View T Hat The Orders Of Assessment Passed By The Ao On 31 12 2008 Was Erroneous And Pr Ejudicial To The Interests Of Revenue According To The Cit The Ao Ought To Have Held That There Was A Transfer Of A Capital Asset By The Assessee By Virt Ue Of Agreement Dated 11 11 2000 And Capital Gain Had Accrued During The Previous Year Relevant To Assessment Year 2001 02 And The Ao Ought To Have Br Ought To Tax The Capital Gain Against This Order Of Cit U S 263 The Asse Ssee Carried The Matter Before The Tribunal And In Para No 21 Of This Tribunal Or Der It Is Noted By Tribunal That By Virtue Of The Agreement For Sale Dated 11 11 200 0 The Assessees Right To Get 30 Built Up Area Of Flats Got Extinguished And Therefore There Was A Transfer By Way Of Extinguishment Of Rights Over Th E Property And Therefore There Was A Transfer As Per The Claim Of The Depart Ment The Claim Of The Assessee Before The Tribunal Was This That By The A Greement Dated 11 11 2000 The Consideration For Transfer Of The Property Was Substituted In Terms Of Money In Lieu Of Getting Built Up Area Of Flats Originall Y Agreed Under The Jda Dated 26 10 1994 And Therefore The Conclusions Of The Ci T Are Contrary To Facts Hence It Is Seen That In That Case The Jda Was Ent Ered In The Year 1994 And In That Year The Possession Was Given And In Assessme Nt Year 2001 02 The Built Up Area Was Converted Into Money On This Aspect A Lso Query Was Made By The Ao And Reply Was Given By The Assessee Before T He Ao And The Ao Took A View That No Capital Gain Has Arisen In The Present Year This Is Settled Law That The Cit Cannot Substitute His View In Place Of Ao W Hile Exercising Revisionary Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 19 Of 21 Powers U S 263 In Our Considered Opinion This T Ribunal Order Is Also Not Applicable In The Facts Of The Present Case 16 As Per The Above Discussion We Find That This Issue Is Squarely Covered In Favour Of The Revenue And Against The Assessee By T He Judgment Of Honble Karnataka High Court Rendered In The Case Of Cit Vs Dr T K Dayalu Supra And The Two Tribunal Orders Cited By Ld Ar Of Asse Ssee Are Not Applicable In The Present Case Hence By Respectfully Following This Judgment Of Honble Karnataka High Court Rendered In The Case Of Cit Vs Dr T K Dayalu Supra We Reverse The Order Of Cit A On This Issue And Re Store That Of The Ao 17 Before Parting We Also Take Note Of This Fact That The Jdas In Question Are Duly Registered And Stamp Duty Is Paid Under Karnataka Stamp Act 1957 As Per A Recent Judgment Dated 04 10 2017 Of Honble Apex Co Urt Rendered In The Case Of Cit Vs Balbir Singh Maini This Was Held That If The Jda Is Not Registered It Cannot Be Said That Any Transfer Has Taken Place As Per Jda Since In The Present Case Jdas In Question Are Duly Registered This Judgment Also Does Not Render Any Help To The Assessee And Since Our Deci Sion Is Without Taking Any Help From This Judgment And This Judgment Only Fort Ifies Our Decision And Therefore It Was Not Considered Necessary To Confr Ont The Assessee With This Judgment Accordingly Ground Nos 1 To 6 Of Revenue S Appeal Are Allowed 18 Regarding Ground No 7 In Three Appeals I E It A Nos 1353 To 1355 Bang 2015 We Find That The Issue Regarding Sources For Mutual Fund Investment Was Decided By Cit A On The Basis Of Evidence Made Ava Ilable Before Him For The First Time Without Obtaining Remand Report From The Ao And Hence In Our Considered Opinion There Is Violation Of Rule 46 A Of It Rules 1962 And Therefore We Set Aside The Order Of Cit A On This Issue And Restore This Matter Back To The File Of Cit A For Fresh Decision After Obtaining Remand Report From The Ao Ground No 7 Of These Three Appeals Is All Owed For Statistical Purposes 19 Now Only One Issue Left In Appeals Of Revenue Is Ground No 8 In Ita No 1355 Bang 2015 In This Regard We Find That As Pe R Para No 4 3 Of The Order Of Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 20 Of 21 Cit A The Decision Of Cit A Is On This Basis Tha T The Assessee Is Consistently Following Cash System Of Accounting But In The Asse Ssment Order The Ao Has Stated That The Method Of Accounting Followed By Th E Assessee Is Mercantile We Do Not Know From Where The Cit A Has Found This That The Assessee Is Consistently Following Cash System Of Accounting Pa Rticularly When The Ao Has Clearly Stated In The Assessment Order That The Ass Essee Is Following Mercantile System Of Accounting And There Is No Ground Raised By The Assessee Before The Cit A On This Aspect Hence We Reverse The Order Of Cit A On This Issue And Restore That Of The Ao Ground No 8 Of Revenues Appeal In Ita No 1355 Bang 2015 Is Allowed 20 In The Result All The Four Appeals Of The Reve Nue Are Allowed In The Terms Indicated Above 21 Now We Take Up The Cos Filed By The Assessee As Per These Cos Two Issues Are Raised By The Assessee The First Issue Is Reg Arding Validity Of Reassessment Proceedings And In Course Of Hearing B Efore Us It Was Submitted By Ld Ar Of Assessee That This Issue Is Not Presse D And Accordingly The Grounds Pertaining To This Issue Is Rejected As Not Pressed 22 The Second Issue Raised Is Regarding Assessees Claim For Deduction U S 54 F Of It Act We Find That This Issue Was Not Decided By Cit A Because He Has Decided The Issue In Favour Of The Assessee On The Main Issue That Capital Gain Is Not Liable To Tax In The Present Year Once It Is Held That The Capital Gain Is Not Liable To Tax In The Present Year Then There Is No Question Of Allowability Of Deduction U S 54 F And Therefore This Aspect Was N Ot Decided By Cit A Now We Have Reversed The Order Of Cit A On That Aspect And We Have Held That Capital Gain Is Liable To Tax In The Present Year A Nd Therefore Now This Issue Regarding Allowability Of Deduction U S 54 F Has To Be Decided Hence We Restore This Issue To The File Of Cit A For Decis Ion 23 Regarding The Contention Of The Learned Ar Of T He Assessee That As Per The Tribunal Order Rendered In The Case Of Shri K G Ad Aveeshaiah Vs Ito Supra The Issue Regarding Allowability Of Deduction U S 54 54 F Should Be Restored Ita Nos 1353 To 1356 Bang 2015 C O Nos 93 To 96 Bang 2017 Page 21 Of 21 Back To The File Of Ao We Find That In Para 8 Of T His Tribunal Order It Is Stated By The Tribunal That Generally Such Issue Should Be R Estored To Cit A But Since In That Appeal The Main Issue About The Quantum Of Capital Gain Was Restored To Ao It Was Considered Appropriate That This Issue A Bout Deduction U S 54 54 F Shall Also Be Restored To Ao And After These Observ Ations The Matter Was Restored To Ao In The Present Case No Other Issue Is Being Restored To Ao And Therefore In The Present Case We Feel It Proper T O Restore This Issue To Cit A With The Direction That He Should Decide This Issue As Per Law After Providing Adequate Opportunity Of Being Heard To Both Sides Ground No 5 Of All These Cos Is Allowed For Statistical Purpose 24 In The Result All The Four Cos Are Partly Allo Wed For Statistical Purposes 25 In The Combined Result All The Four Appeals Fi Led By The Revenue Are Allowed In The Terms Indicated Above And All The Four Cos File D By The Assessees Are Partly Allowed For Statistical Purposes Order Pronounced In The Open Court On The Date Ment Ioned On The Caption Page Sd Sd Lalit Kumar Arun Kumar Garodia Judicial Member Accountant Member Bangalore Dated The 13 Th December 2017 Ms Copy To 1 App Ellant 2 Respondent 3 Cit 4 Cit A 5 Dr Itat Bangalore 6 Guard File By Order Senior Private Secretary Income Tax Appellate Tribunal Bangalore