The Commissioner Of Income Tax – 9, Mumbai v. M/S.crest Estate Developers Private Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1059 OF 2011 The Commissioner of Income Tax – 9, Mumbai..Appellant. Versus M/s.Crest Estate Developers Private Limited ..Respondent. Mr.Arvind Pinto with Mr.N.A. Kazi for the appellant.Dr.K. Shivram with Mr.Ajay R Singh & Mr.Paras Savla for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 23[rd] January 2013 P.C. : 1.In this appeal by the Revenue for assessment year 2002-2003, the following question of law has been formulated for our consideration. “Whether on the facts and circumstances of the case and in law, the Tribunal was justified to hold that profits from sale of stock of TDR was liable to be assessed as claimed by the assessee at the time of complete sale of TDR merely on the ground that the assessment of TDR in the year of sale may lead to multiple adjustment or double taxation, ignoring the correct legal position according to which the income earned or accrued on the sale of stock is assessed in the year of sale itself and it cannot be postponed ?” 2. We find that the Tribunal in the impugned order has recorded the fact that the respondent – assessee has been selling TDR in the financial years 1998-1999 and 2000-2001. The respondent – assessee has offered the profits on sales of TDR to tax in the assessment year 2003-2004 and the department has accepted the same after scrutiny assessment under Section 143(3) of the Income Tax Act, 1961 as the construction project was completed in the year 2003-2004. The Tribunal has recorded a finding that the sale of TDR would be taxable in the year of sale and not as and when the construction project is completed as the two activities are distinct and separate from one another. However, taking into account the peculiar facts and circumstances of the present case inasmuch as the tax has already been paid in the assessment year 2003-2004, the assessee's appeal before the Tribunal was allowed. 3.Since the tax has already been paid in the assessment year 2003-2004 and the same has been accepted by the Revenue, we see no reason to entertain the present appeal. The appeal is accordingly dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)