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TMI Blog2015 (12) TMI 1770X X X X Extracts X X X X X X X X Extracts X X X X ..... quire re-appreciation of evidence which exercise cannot be done in the above appeals under Section 260A of the Income Tax Act as the learned counsel appearing for the appellant as pointed out herein above has failed to show that there is any perversity in such findings or that any material evidence has been discarded or that the learned Tribunal has come to such conclusion by misreading the evidence on record. - Tax Appeal Nos. 32 & 33 of 2014 - - - Dated:- 2-12-2015 - F. M. Reis And C. V. Bhadang, JJ. For the Appellant : Ms. Asha Desai, Advocate For the Respondent : Mr. A. N. S. Nadkarni, Senior Advocate with Mr. Nikhil D. Pai, Advocate ORAL ORDER (Per F. M. Reis, J) The above appeals challenge an order dated 27.09.2013 passed by the Income Tax Appellate Tribunal, Panaji whereby the appeals preferred by respondent are partly allowed. 2. Briefly, the facts of the case as stated by the appellant are that a search under Section 132 was conducted on 25.02.2010 in the residential premises of the Assessee situated near Don Bosco, Odxel, Dona Paula Goa. The Assessee thereafter filed return of income originally on 31.12.2008 declaring the income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions with Mr. Armando Gonsalves, the assessment order was upheld. The assessment of capital gains on sale of land as per agreement dated 05.10.2002, the Commissioner of Income Tax (A) has held that the particulars of income under capital gain has not been correctly declared and that the transfer of land has not been correctly claimed. Being aggrieved by the said order of the Commissioner of Income Tax (A), the Assessee filed an appeal before the Income Tax Appellate Tribunal, Panaji, which was partly allowed by order dated 27.09.2013. Being aggrieved by the said order, the appellant has preferred the present appeals. 5. During the course of the hearing of the above appeals, both the learned counsel have pointed out that in respect of the same transaction, this Court had disposed of Tax Appeal Nos. 15 and 16 of 2014 by order dated 09.04.2014 whereby the appeals preferred by the appellant came to be dismissed. It is also not disputed that the facts in the present appeals and in the said appeals as well as the parties are the same. 6. On perusal of the impugned order passed by the Income Tax Appellate Tribunal, we find that the learned Tribunal has come to the conclusion at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Gonsalves, the learned Tribunal has directed the Assessing Officer to re-decide this issue in accordance with the findings in the Assessment Year 2007-2008. The learned Tribunal also accepted the findings of the CIT (A) in respect of the commission being paid to Mr. Tahir Isani. 7. From the foregoing findings of the learned Tribunal, we find that the learned Tribunal on the basis of appreciation of evidence on record and considering the agreements between the parties has come to the conclusion that there was no 'transfer' and as such the income could not be assessed in the hands of the respondents herein. The records referred to by the learned Tribunal also reveal that the person to whom the flats have been assigned have duly been taxed on such income which aspect has not been disputed by the learned counsel appearing for the appellant. In this connection, this Court in the judgment reported in 2003(2) Bom. C. R. 449 in the case of Chaturbhuj Dwarkadas Kapadia V/s Commissioner of Income Tax, Bombay City-VIII has observed at para 6 thus : 6 . At the outset, we may point out that in this case, the assessee does not deny transfer. The only dispute in this case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by completing the building and, therefore, no interest in the land stands created in their favour under such agreements. That such agreements are only a mode of remunerating the builder for his services of constructing the building (see Gurudev Developers v. Kurla Konkan Niwas Co-operative Housing Society [2000] 3 Mah LJ 131). It is precisely for this reason that the Legislature has introduced Section 2(47)(v) read with Section 45 which indicates that capital gains is taxable in the year in which such transactions are entered into even if the transfer of immovable property is not effective or complete under the general law. In this case that test has not been applied by the department. No reason has been given why that test has not been applied, particularly when the agreement in question, read as a whole, shows that it is a Development Agreement. There is a difference between the contract on one hand and performance on the other hand. In this case, the Tribunal as well as the department have come to the conclusion that the transfer took place during the Accounting Year ending 31st March, 1996 as substantial payments were effected during that year and substantial permissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment Agreement is contemplated, under which the developer applies for permissions from various authorities, either under Power of Attorney or otherwise and in the name of the assessee, then the Assessing Officer is entitled to take the date of the contract as the date of transfer in view of Section 2(47)(v). In this very case, the date on which the developer obtained a commencement certificate is not within the Accounting Year ending 31st March, 1996. At the same time, if one reads the contract as a whole, it is clear that a dichotomy is contemplated between limited power of attorney authorising the developer to deal with the property vide para 8 and an irrevocable licence to enter upon the property after the developer obtains the requisite approvals of various authorities. In fact, the limited power of attorney may not be actually given, but once under Clause 8 of the agreement a limited power of attorney is intended to be given to the developer to deal with the property, then we are of the view that the date of the contract, viz., 18th August, 1994, would be the relevant date to decide the date of transfer under Section 2(47)(v) and, in which event, the question of substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. in the subject year. The learned Tribunal also found that it is not the case of the appellant that the agreements executed by the respondent-assessee are bogus or fictitious upon appreciating the evidence on record and as such, there is no substantial question of law which can arise in the above appeals as this Court in the present appeals cannot reappreciate the evidence on record. The learned Tribunal also refused the contention of the appellant upon appreciating the evidence on record to come to the conclusion that the provisions of Section 2(47) of the Income Tax Act have not been satisfied. In such circumstances, the substantial questions of law proposed by the appellant as such would require reappreciation of evidence which exercise cannot be done in the above appeals under Section 260A of the Income Tax Act as the learned counsel appearing for the appellant as pointed out herein above has failed to show that there is any perversity in such findings or that any material evidence has been discarded or that the learned Tribunal has come to such conclusion by misreading the evidence on record. 10. For the aforesaid reasons, we find that the substantial questions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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