9911796707
TMI Blog2007 (9) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,46,538. His mother the other assessee admitted a total income of ₹ 1,04,910 for this previous year ended with 31-3-1997. Both these returns were originally processed under Section 143(1)(a). Both these assessees had an agreement with M/s Ashok Leyland Properties Ltd. dated 12-4-1996 regarding sale of property at No. 42 mcnichols Road, Chetput, Chennai-31. They applied for Section 230A(1) certificate from the department which is mandated at that point of time. The assessing officer initiated the reassessment proceedings. Notice under Section 148 was slapped on the assessee for assessing escaped income from capital gains. 3. It was explained by the learned Authorised Representative for the assessee that a sum of ₹ 50 lakhs was received during the previous year relevant to the assessment year under appeal and the amount is in nature of advance. Since no sale agreement was entered into during this previous year there was no transfer effected during this previous year therefore the chargeability of capital gain does not arise. The assessing officer was convinced with the assessees reply and he found it correct as during the year relevant no sale took place and hence no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he advised the assessees that they need not file appeals before the Tribunal against Section 263 orders. He advised so in a bona fide belief that the assessing officer would give effect to the orders of the Commissioner (Appeals) for those three assessment years. After consulting the senior chartered accountant, Shri T. Banusekar and discussion with regard to the above facts, the assessees were advised that appeals are to be filed against Section 263 orders of the learned Commissioner before the Tribunal. Hence, there was a delay in filing the appeals against Section 263 orders for the bona fide reason that in respect of same property the issue of capital gains was decided by the learned Commissioner (Appeals) during the assessment years 1998-99 to 2000-01, and the same property which is subjected to Section 263 order in this assessment year 1997-98 cannot be again taxed as there is no transfer involved during the year. The petitioner also supports the case of the assessees on identical set of submissions. Under the circumstances, the learned Counsel pleaded that there is a bona fide belief and the assessees were prevented from filing the appeal within the time stipulated due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red accountant that no appeal is necessary against the adverse order under Section 263 since the addition could be contested in regular appeals which was to follow and in this case, the Commissioner (Appeals) as first appellate authority considered the same in favour of the assessees, the chartered accountant advised the assessees not to file appeal. It was later realised that (it) will not give a full and complete relief to the assessees so that after getting the advice from other chartered accountant, the assessees realised that regular assessment may not grant complete relief so that the appeal came to be filed after the delay. The affidavit of the chartered accountant who has given such advice also is filed before us. The decision of Hon'ble Allahabad High Court in the case of Ganga Sahai Ram Swarup v. ITAT and Ors. also supports the case of the assessees. Hence, under the circumstances, we accept the sufficient cause as a reasonable cause for not filing the appeals within the time stipulated. The duration of delay is not material. We have to see only the valid and sufficient reasons for not filing the appeal within the time allowed. We accept the contention of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 1997-98. The assessing officer has take a view based on the records and there is application of mind by him to reach a conclusion that no sale took place during this year relevant under appeal. The amount received is stated to be as advance is also accepted by the assessing officer, is a decision based on records and therefore, the assessing officer took a view that there was no capital gains arising for assessment year 1997-98. For that proposition, the learned Counsel relied on the decision of Hon'ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia v. CIT, wherein it was held that year of chargeability has to be taken by applying Section 2(47)(v) read with Section 53A of the Transfer of Property Act and that year of chargeability is the year in which the transaction was entered into. The date has to be reckoned is of the date of agreement as the development agreement in that case. The decision of the assessing officer is supported by the aforesaid decision of the Hon'ble Bombay High Court. Therefore, the assessing officers order is not erroneous as the view taken by the assessing officer is one of the possible view. Coming to the prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court decision cited supra, directly support the contention of the assessee. The year of chargeability as taken by the assessing officer is one of the possible view and it is not proved to be erroneous. At the same time the capital gains were subjected to tax in the subsequent assessment years 1998-99 to 2000-01. These facts are not in dispute. Under the circumstances, the order under Section 263 cannot be said to be prejudicial to the interests of revenue. Hence we agree with the vehement contention of the learned Counsel and quash the Section 263 order passed by the learned Commissioner in respect of both the assessees here in. Accordingly assessees appeals in ITA Nos. 859 and 860/Mds/2007 are allowed. 13. Coming to the assessees appeals against Section 143(3) read with Section 263 in ITA Nos. 917 and 918/Mds/2006 for the assessment year 1997-98, we are of the view that these appeals are to be dismissed as infructuous. We have quashed the Section 263 orders and hence the order giving effect to the Section 263 order has no legs to stand. These orders remain in vacuum. Therefore, these two appeals by the assessees against the orders giving effect to Section 263 order becom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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