The Commissioner Of Income Tax, Central-I, Mumbai v. M/S.videocon Atithi Shelters P Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1921 OF 2011ANDINCOME TAX APPEAL NO.2353 OF 2011ANDINCOME TAX APPEAL NO.2381 OF 2011ANDINCOME TAX APPEAL NO.2466 OF 2011 The Commissioner of Income Tax, Central-I, Mumbai Versus M/s.Videocon Atithi Shelters P Limited ..Appellant. ..Respondent. Mr.Suresh Kumar with Ms.Padma Divakar for the appellant.Mr.Balkrishna V Jhaveri for the respondent. CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 22[nd] February 2013 P.C. : 1.In all these appeals by the Revenue for assessment years 2004- 05, 2005-06, 2006-07 and 2007-08, following common question has been proposed for our consideration. “Whether, on the facts and in the circumstances of the case, the Tribunal in law was right in deciding that the value of Transferable Developmental Rights (TDR) received by the assessee, is taxable on the basis of the project completion method, instead of receipt basis as the assessee follows the mercantile system of accounting ?” 2.The respondent - assessee has filed an affidavit-in-reply dated 20[th] February 2013 of one Atithi N Patel, Director of the respondent – assessee, bringing on record the order dated 31[st] December 2010 passed by the assessing officer in the respondent – assessee's own case for assessment year 2008-09. In the order dated 31[st] December 2010, the entire amount received on account of sale of TDR was offered to tax in the assessment year 2008-09 and the same has been considered by the assessing officer. In view of this, it is the case of the respondent – assessee that once the consideration received for the sale of TDR has been offered to tax in the assessment year 2008-09, there is no occasion to tax the same consideration received during the assessment years 2004-05 to 2007-08. 3. Moreover, the Tribunal by the impugned order has allowed the claim of the respondent – assessee on the ground that the sale of TDR would be subjected to tax in the year in which the project is completed. This was for the reason that the respondent – assessee was following the project completion method of accounting. The Tribunal inter alia relied upon its decision in the matter of Chembur Trading Corporation in Income Tax Appeal No.2593/Bom/2006 while holding that the TDR would be subjected to tax in the year of project completion. The Revenue had preferred an appeal to this Court against the order of the Tribunal in the matter of Chembur Trading Corporation, being Income Tax Appeal No.3179 of 2009. This Court by order dated 14[th] September 2011 did not entertain Income Tax Appeal No.3179 of 2009 filed by the Revenue on the ground that the amount received on sale of TDR had been brought to tax in the subsequent assessment year by following project completion method. 4. In view of the above, we see no reason to entertain the proposed question of law. Accordingly, all the appeals are dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)