Madras High Court
Principal Commissioner Of Income ... vs M/S. Smt Kathijathu Nasreen on 17 December, 2021
Tax Case Appeal No.593 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2021
CORAM
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
Tax Case Appeal No. 593 of 2021
Principal Commissioner of Income Tax
International Taxation – 2 (1)
Chennai – 34. .. Appellant
Versus
M/s. Smt Kathijathu Nasreen
New No.60, Old No. 33
Veerabadran Street
Nungambakkam
Chennai – 600 034
PAN: AABPN 8274A .. Respondent
Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961
against the order dated 01.03.2018 passed by the Income Tax Appellate
Tribunal, “A” Bench, Chennai in I.T.A.No.1757/CHNY/2017.
For Appellant : Mr.Karthik Ranganathan
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
This tax case appeal has been filed by the appellant / Revenue, challenging
the order dated 01.03.2018 passed by the Income Tax Appellate Tribunal, 'A'
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Tax Case Appeal No.593 of 2021
Bench, Chennai, in I.T.A.No.1757/CHNY/2017, relating to the assessment year
2014-15, by raising the following substantial questions of law:-
“(i) Whether on the facts and in the circumstances of the
case, the Hon'ble ITAT was right in directing the Assessing
Officer to tax Long Term Captital Gain in the assessement year
2007-08 as against Assessement year 2014-15, when the assessee
herself find the return of income admitting Long Term Capital
Gain in that year?
(ii) Whether on the facts and in the circumstances of the
case and in law, the Hon'ble ITAT was right in holding that the
transfer of property had taken place in the financial year 2006-07
relevant to the assessment year 2007-08 since Joint Development
Agreement was entered in 27.06.2006, when the assessee herself
mentioned in para 7.3 of the Joint Development Agreement shall
not be entitled to create any possessory right over the said lands,
which could be construed as transfer of the property within the
meaning of the Income Tax Act?
(iii) Whether on the facts and in the circumstances of the
case, the Hon'ble ITAT was right in holding that the transfer of
property had taken place in the financial year 2006-07 relevant to
the assessment year 2007-08 when the developer had acted only
as exclusive licensee to carry out construction and not as a
transferee, (as per para 7.2 of JDA), as observed by Hon'ble ITAT
in the case of Vijaya Productions P. Ltd vs ACIT (2012) 134 ITD
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Tax Case Appeal No.593 of 2021
19?
(iv) Whether the Hon'ble ITAT was right in not
appreciating the fact that to qualify “Transfer” of a capital asset
u/s 2 (47)(v) of the Act, there must be a contract which can be
taken cognisance of for the purpose of specififed sec. 53A of
Transfer of Property Act, after amendment of Indian Registration
Act, 2011, unless the said contract is registered, as observed by
the Hon'ble Supreme Court of India in the case of Commissioner
of Income tax vs Balbir Singh Mainin in Civil Appeal No. 15619
of 2017?
(v) Whether Hon'ble ITAT was right to conclude that the
transfer of property had taken place in the financial year 2006-07
relevant to assessment year 2007-08 when the Development
Agreement is not indicating that the passing of transferring of
complete control over the property in favour of the Developer, as
observed by the Hon'ble High Court of Bombay in the case of
Chaturbuj Dwarakadas Kapadia of Bombay vs CIT (2003)-206
ITR 491)?”
2. When the matter was taken up for consideration, the learned counsel for
the appellant / Revenue brought to the notice of this court the Circular
No.17/2019 dated 08.08.2019 issued by the Central Board Direct Taxes,
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Tax Case Appeal No.593 of 2021
wherein, it is stipulated that appeals shall not be filed/pursued by the Department
before the High Court in cases where the tax effect does not exceed
Rs.1,00,00,000/- (Rupees One Crore). It is also submitted that the tax effect in
this appeal is less than the threshold limit.
3. In the light of the aforesaid submissions made by the learned counsel for
the appellant / Revenue, the present appeal, wherein, the tax effect is said to be
less than the monetary limit imposed, is dismissed as withdrawn, keeping open
the substantial questions of law for determination in an appropriate case. No
costs.
[R.M.D,J.] [M.S.Q, J.]
17.12.2021
Internet : Yes
Index : Yes / No
dhk
https://www.mhc.tn.gov.in/judis
Tax Case Appeal No.593 of 2021
To
1. The Income Tax Appellate Tribunal,
Madras “A” Bench.
2. The Principal Commissioner of Income Tax
International Taxation – 2 (1)
Chennai - 600 034
R. MAHADEVAN, J.
https://www.mhc.tn.gov.in/judis
Tax Case Appeal No.593 of 2021
AND
MOHAMMED SHAFFIQ, J.
dhk
Tax Case Appeal No. 593 of 2021
17.12.2021
https://www.mhc.tn.gov.in/judis
