9911796707
TMI Blog2014 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... otal of 2,16,507.10 sq.ft of Transferable Development Rights (for short "TDR"). Out of this, sale of 4133 sq.mt of TDR is mentioned at page 82 of the document. On the facts of the case, the Tribunal directed that as against the rate of Rs.225/- applied by the Assessing Officer, the rate of Rs.220/-should apply to work out unaccounted receipts. However, direction of the Tribunal is that this rate should be applied only in respect of TDR of 4133 against the entire sale of 21,650 sq.m. 2. It is submitted that the TDR, as evidenced by the Development Regulation Certificate (for short DRC), was issued by Pune Municipal Corporation to the 'Raut' family. During the course of post search enquiries, the TDRs were found to be in the personal custody of Vimal Kumar Jain, partner of the assessee firm. The agreement of 1992 between the assessee and the Raut's land in respect of which the TDRs have been issued has been referred by Mr.Gupta. He also refers to an irrevocable Power of Attorney dated 9th March 2001. In his submission, such a Power of Attorney, being irrevocable, amounts to transfer of the property and in such circumstances, the Tribunal could not have granted any relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the parties, we have perused the memo of appeal and all annexures thereto including the order of the Income Tax Appellate Tribunal. What one finds from a reading thereof is that the Tribunal was seized of six appeals. Income Tax Appeal no.1020/PN/08 was filed by the assessee in relation to Assessment Year 2001-02. Income Tax Appeal No.1250/PN/08 pertaining to the same Assessment year was filed by the Revenue. Insofar as Assessment Year 2002-03 is concerned, the assessee filed Appeal No.1021/PN/08 whereas the Revenue filed Appeal No.1251/PN/08. With regard to Assessment Year 2003-04, the assessee filed Appeal No.1022/PN/08 and the Revenue filed Appeal No.1252/PN/08. 5. The Tribunal thought that these Appeals raise inter connected issues. Therefore, with the consent of the parties, the Tribunal disposed of the said Appeals by a common order. The grounds are summarised by the Tribunal from the Revenues' Appeals and equally that of the assessee. 6. While narrating the facts, the Tribunal observed that the assessee before us is a partnership firm. It filed the returns of income. There was a search and seizure operation under section 132 on 1st September 2004 in the case of Rau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out failure to take cognizance of direct evidence such as confirmation letter by the respective purchasers of TDR. 7. In paragraph no.28, the arguments on the first limb of the ground are considered and that is of the assessee. In paragraph no.29 and 30, the arguments of the Revenue have been noted. From paragraph no.31, the Tribunal refers to the seized papers and holds that the confirmation letters and the contents of page 82 and pages 42 to 46 of the seized material cannot be co-related. The Tribunal, therefore examines the issue as to whether and to what extent the seized document at page 82 and pages 42 to 46 cannot be made use of by the Assessing Officer. The contents relevant to the extent of the corelation of page 82 with page 42 - 46 are noted in paragraph 37 and in paragraph 38. The fact of sale of TDR of 35000 sq meters and the proceedings before the Civil Court are referred to. 8. From paragraph 39, the Tribunal notes that the transaction was effected during the period April 2000. The Revenue therefore argued that the sale price of Rs.225/-must be the applicable rate per square foot for the sales of TDR for the current and subsequent years. This is the argument of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 220/-per sq.feet i.e. average of both Rs.225/-and Rs.215/-sq. feet. AO is also directed to delete the rest of the additions in this regard. Consequently, the ground raised by the assessee without prejudice is dismissed. As the actual details of sale transactions of TDRs are not readily available, the matter has to go to the files of the AO for the limited purpose of determination of total TDR considering the names of the parties mentioned on page 82. AO shall grant opportunity of being heard to the assessee as per the principles of natural justice. Accordingly, the issue is partly allowed." 10 In the light of the above observations that we are of the opinion that the questions as projected before us namely, paragraph nos.5(I) and (II) cannot be said to be substantial questions of law. Based on the sale transactions noted at page 82, the estimation of both i.e. Rs.225/-and Rs.215/-has been found to be meeting the ends of justice. The Assessing Officer has been therefore directed to restrict the estimations to the sale transactions of TDR on page 82 only and for which the rates have been prescribed. The rest of the additions have been directed to be deleted. We find that the deletio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Tribunal have been considered, and in dealing with them, the Tribunal has arrived at a factual conclusion that the assessee has the right of ownership on Parvati land which was taken over by the Pune Municipal Corporation namely, PMC. The PMC in turn granted the TDRs. The assessee got rights on the TDRs as per mutual understanding between the Rauts and the assessee. However, the formal irrevocable Power of Attorney is signed only on 9th March 2001 in favour of the assessee. The transactions in relation to TDR with M/s.SAVM Associates were concluded by Shri T.S. Raut vide agreement dated 29th April 2000. The Power of Attorney was not in force at the time when the transaction in relation to TDR with M/s.SAVM Associates was concluded by Shri Raut. That Power of Attorney and which is stated to be irrevocable is signed only on 9th March 2001. It being subsequent in point of time, that cannot be relied upon to fasten tax liability on the sale transactions concluded prior thereto and on the appellant assessee before the Tribunal. It is on that basis that the Assessing Officer's additions and relying on this Power of Attorney have been interfered with and set aside. 13. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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