The Director Of Income Tax (Exemption v. F.e. Dinshaw Charities

bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 6530 of 2010 The Director of Income Tax (Exemption) … Appellant v/s F.E. Dinshaw Charities … Respondent Mr.Suresh Kumar for the appellant. Mr.S.E.Dastur, senior advocate with Madhur Agarwal i/by Atul K. Jasani for the respondent. CORAM: S.C. DHARMADHIKARI & G.S. KULKARNI, JJ. DATED : 7TH MAY, 2014 P. C. : 1This appeal challenges the order passed by the Income Tax Appellate Tribunal dated 15[th] October, 2008. The assessment year in question is 1990-1991. There were two appeals before the Income Tax Appellate Tribunal and which have been disposed of by this impugned order. 2Mr.Suresh Kumar, learned advocate appearing for the revenue submits that the appeal raises a substantial question of law and that is, whether the view taken by the Tribunal is correct, inasmuch as, the sale proceeds in respect of the immovable property sold by the assessee by agreement for sale is assessable as business income or capital gain under the provisions of the Income Tax Act and, secondly, whether the transfer of the immovable property by the assessee is covered under Section 2(47)(v) of the Income Tax Act, 1961 ? 3Mr.Suresh Kumar submits that, in this case the transferee was not in possession of the land as tenant or otherwise. The Tribunal held that effective date of transfer will be the date on which the entire sale consideration is received. However, this is not in consonance with the provision of Section 2(47)(v) of the Act, 1961 which enumerates that any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882 it transfer of the property. Therefore, the date on which the possession of the immovable property is allowed to be taken or retained in part performance is the relevant date. 4This appeal together with other appeals, was on board and on the earlier occasion we passed a detailed order taking on record an affidavit filed by the assessee. At the request of Mr.Suresh Kumar, we gave him time to take instructions on the affidavit that has been filed. The affidavit indicates as to how the Tribunal has followed its orders passed for prior assessment years and in the case of the very assessee. The Tribunal in this case, in paragraph 15, has referred to the order passed in the assessment year 1988-1989 in the case of the respondent assessee in Income Tax Appeal Nos.1499 to 1504 /Mum/2002. In the case of the very assessee, for assessment year 1995-1996, another order was passed by the Tribunal in Income Tax Appeal No.4245/Mum/2002. 5Therefore, Mr.Suresh Kumar concedes that the adjournment was only to point out whether any appeal was filed against the orders of the Tribunal and for prior assessment years. All that he could point out based on a communication from the Income Tax Department that no record of any appeal having been filed is available. This clearly means that an appeal challenging this finding of fact recorded by the Tribunal has not been filed. The revenue has thus accepted this finding of fact and in relation to the same assessee for prior assessment years. In such circumstances, we do not find that the appeal raises any substantial question of law. 6Even otherwise we find that the Tribunal has referred to the individual transaction in question. The terms thereof have been taken into consideration to hold that, in the case of persons to whom the property has been transferred, the relevant date of bringing the income to tax, would be the date on which the entire consideration is received. The view taken by the Tribunal is thus possible in the given facts and circumstances. thus accepted this finding of fact and in relation to the same assessee for prior assessment years. In such circumstances, we do not find that the appeal raises any substantial question of law. 6Even otherwise we find that the Tribunal has referred to the individual transaction in question. The terms thereof have been taken into consideration to hold that, in the case of persons to whom the property has been transferred, the relevant date of bringing the income to tax, would be the date on which the entire consideration is received. The view taken by the Tribunal is thus possible in the given facts and circumstances. 7We find much substance in the contention of Mr.Dastur, learned senior counsel for the assessee that, in the case at hand, the Tribunal found that the possession of the immovable property was not taken or retained as is now urged. Further, the finding of fact which is recorded by the Tribunal in prior assessment years has also been recorded in subsequent assessment years and in relation to the same assessee. Even in relation to the subsequent years, no appeals have been filed by the revenue. 8We do not find that the appeal raises any substantial question of law. 9In relation to the other questions, namely, at paragraph 4(ii) and 4(iii), those are also answered in favour of the assessee and against the revenue by an order passed in Income Tax Reference No.325 of 1997, decided on 24[th] April, 2012 by a Division Bench of this Court. 10In the above facts and circumstances, the present appeal does not raise any substantial question of law. It is accordingly dismissed. (G.S. KULKARNI, J.) (S.C.DHARMADHIKARI, J.)