Itta/39/2014 Of The Commissioner Of Income Tax [Central] v. Sri Sitendranarayan Mahendra Narayan Rai

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A.No.39 of 2014 Date: 13.02.2014 Between: The Commissioner of Income Tax (Cental)Hyderabad .....Appellant AND Sri Sitendranarayan Mahendra Narayan Rai,Hyderabad. ...Respondent HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A.No.39 of 2014 JUDGMENT:(per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta ) This appeal is sought to be preferred and admitted againstthe judgment and order of the learned Tribunal dated 13[th]September 2013 in relation to the assessment year 2007-08 on thefollowing suggested questions of law: (1) Whether on the facts and circumstances ofthe case and in law, the decision of the Tribunal iscorrect in holding that there is no tangible materialbefore the Assessing Officer to initiate proceedingsunder Section 147 of the Income Tax Act withoutappreciating that the letter of the assessee informingthat the possession is handed over on 02.05.2006 ison record before reopening the case under Section147 of the Income Tax Act? (2) Whether on the facts and circumstances ofthe case and in law, the decision of the Tribunalholding that possession of the land deemed to havebeen delivered to the developer on the date ofexecution of the Development Agreement (ignoringthe letter dated 15.12.2008 submitted by theassessee to the Additional Commissioner of Income Tax, Range-6, Hyderabad) is not perverse? (3) Whether on the facts and circumstances ofthe case and in law, the decision of ITAT is notperverse to the extent of taking into cognizance theregistered sale deed dated 20.12.2005, while theassessee himself has claimed the said document tobe void ab initio in his letter to the Assessing Officerdated 30.10.2009? We have heard the learned Counsel for the appellant andgone through the judgment and order of the learned Tribunal. It appears, in this matter, the assessment was reopenedunder Section 147 of the Income Tax Act, 1961 and while doing sothe Assessing Officer has reversed the earlier order of theassessment and again an appeal was preferred to theCommissioner of Income Tax (Appeals). The issue in this matteris what is the date of taking possession by the developer in orderto hold there has been transfer within the meaning of the IncomeTax Act to compute the capital gain. At the first instance, theAssessing Officer relied on the registered agreement of salecoupled with the General Power of Attorney, which was executedsubsequent to the unregistered agreement of sale. Later, theAssessing Officer thought that the unregistered agreement of sale,which was executed after the registered one, should have beenconsidered. According to us, what evidence and what materialshould be accepted by the Assessing Officer is his individualappreciation of evidence. It cannot be re-appreciated subsequentlyby another Assessing Officer in exercise of power under Section147 of the Income Tax Act, 1961. Moreover, the learned Tribunalexamined the fact and documents in detail and found that thedecision taken earlier by the Assessing Officer was correct. Thisappreciation of fact cannot be substituted by us as it is not a caseof perversity as has been incorrectly contended by the learnedCounsel for the appellant before us. Perversity is a case wherethere is no evidence or there is irrelevant materials. In this case,it is neither of the cases. Under these circumstances, we do notfind any reason to interfere with the Judgment and order of thelearned Tribunal, naturally we do not admit the same. Accordingly, the appeal is dismissed. No order as to costs. ___________________ K.J. SENGUPTA, CJ __________________ SANJAY KUMAR, J 13.02.2014 Gsn