Madras High Court
M/S.Tamilnadu Brick Industries vs The Income Tax Officer on 15 November, 2021
Tax Case Appeal No.600 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.11.2021
CORAM :
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
Tax Case Appeal No.600 of 2018
&
CMP.Nos.12015 & 12016 of 2018
M/s.Tamilnadu Brick Industries,
No.47, Mangali Nagar 1st Street,
Arumbakkam, Chennai 600 106. ... Appellant
Vs.
The Income Tax Officer,
Non-Corporate Circle-8(1),
Chennai 600 106 ... Respondent
Tax Case Appeal filed under Section 260A of the Income Tax Act,
1961 against the order of the Income Tax Appellate Tribunal, Madras "D"
Bench, dated 11.5.2018 passed in I.T.A.No.744/Chny/2017.
For Appellant : Mr.S. Sridhar
For Respondent : Mr. Karthik Ranganathan
Standing Counsel
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Tax Case Appeal No.600 of 2018
JUDGMENT
(Judgment was delivered by R. MAHADEVAN, J.)
This Tax Case Appeal has been filed by the appellant / Assessee
challenging the order dated 11.05.2018 passed by the Income Tax Appellate
Tribunal, Chennai "D" Bench, ('the Tribunal' for brevity) in
I.T.A.No.744/Chny/2017 for the assessment year 2013-14.
2. The above appeal has been filed raising the following Substantial
Questions of Law: :
“1. Whether the provisions in Section 2(47)(v) of the
Income Tax Act, 1961 read with section 53A of the Transfer of
Property Act, 1882 would be applicable for reckoning deemed
transfer for unregistered joint development agreement backed
by the registered general power of attorneys in the context of
computation of Long Term Capital Gains?
2. Whether the Appellate Tribunal is correct reckoning
the deemed transfer in terms of section 2(47)(v) of the Income
Tax Act based on the unregistered joint development agreement
backed by the registered general power of attorneys despite the
starting point for the transaction as captured in the
Memorandum Of Agreement dated 30.01.2012 falling within
the immediately preceding assessment year 2012-13?
3. Whether the recitals in the document of joint
development agreement indicating the commencement of the
business operations on obtaining NOCs would be relevant for
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Tax Case Appeal No.600 of 2018
determining the date of deemed transfer in terms of section
2(47)(v) of the Income Tax Act as against the mechanical
determination fo such deemed transfer based on the date of
execution of unregistered joint development agreement backed
by general power of attorneys??
4. Whether the provisions of section 45(2) of the Act
which prescribe different computation for assessment of profits
based on the treatment of the capital asset as business asset
would override the deemed transfer in section 45(1) read with
section 2(47)(v) of the Act?
5. Whether the registered general power of attorneys
would negate the applicability of the law laid down by the
Supreme Court in the case of Balbir Singh Maini (Civil Appeal
No.15619/2017 dated 04.10.2017) despite the powers given to
the developer being only in relation to the powers for executing
the transaction of the joint development while not transferring
the property rights?
6. Whether the taxation of Long Term Capital Gains
notionally is legally justified despite the law laid down by the
Supreme Court in the case of Balbir Singh Maini in relation to
taxation of real income in the context of deemed transfer within
the scope of section 2(47)(v) of the Act read with section 53A of
the T.P.Act, 1882?
7.Whether the adoption of stamp duly value applicable
from 1.4.2012 as the sale consideration for taation of Long
Term Capital Gains notionally while overlooking the doctrine
of 'relating back' for adopting the stamp duty value available
prior to 1.4.2012 in view of the starting point of the transaction
based on the Memorandum of Agreement dated 30.01.2012 is
correct in law?”
3. When the matter was taken up for consideration, the learned counsel
appearing for the appellant / assessee submitted that during the pendency of
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Tax Case Appeal No.600 of 2018
this tax case appeal, the assessee has filed the requisite Forms 1 and 2 under
Section 4 of the Direct Tax Vivad Se Vishwas Act, 2020, which were
accepted and Form 3 was issued to the assessee on 10.02.2021 by the Income
Tax Department. The learned counsel has also filed memo, dated 21.10.2021
to that effect.
4.The aforesaid submission made by the learned counsel for the
appellant/assessee has also been fairly conceded by the learned standing
counsel appearing for the respondent/ Revenue.
5.This court heard the submissions made by the learned counsel on
either side, as per which, the assessee has already availed the benefit
conferred under the beneficial legislation viz., the Direct Tax Vivad Se
Vishwas Act, 2020, enacted for resolution of disputed tax and for matters
connected therewith or incidental thereto, which came into force with effect
from 17.03.2020; and the declarations submitted by them were also accepted
and Form 3 was also issued to the assessee by the Income Tax Department. In
view of such development, it is unnecessary for this court to decide the
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Tax Case Appeal No.600 of 2018
substantial questions of law arisen in this tax case appeal.
6.Therefore, recording the submissions so made by the learned counsel
on either side, this appeal stands disposed of, directing the department to
process the application at the earliest in accordance with the Act and
communicate the decision to the assessee at the earliest. No costs.
Consequently, the connected miscellaneous petitions are closed.
(R.M.D., J.) (M.S.Q., J.)
11.11.2021
msr
Internet : Yes
Index : Yes / No
To
1.The Income Tax Appellate Tribunal,
Madras "D" Bench,
2.The Income Tax Officer,
Non-Corporate Circle-8(1),
Chennai 600 106
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Tax Case Appeal No.600 of 2018
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
msr
Tax Case Appeal No.600 of 2018
11.11.2021
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