Jaya Prakash vs. ITO (ITAT Bangalore)
ITAT defines the meaning of ‘set aside’ and directs that AO can’t do fresh assessment if assessment order was set aside by ITAT.
Read Original Order here- Sale Consideration cannot be Determined merely on Form 26AS
BRIEF FACTS:
1. The assessee herein came in appeal before the Tribunal and raised the issue with regard to taxability M.P No.91/Bang/2021 of Rs. 4,88,75, 000/- on the basis of From No.26AS. On this issue Tribunal observed as follows:-
“7. We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. Admittedly in this case, the CIT(A) determined the sale consideration on the basis of Form 26AS without seeing the actual sale deed entered by the assessee with concerned parties.”
2. In our opinion, sale consideration cannot be determined only on the basis of Form 26AS.
3. The provisions of Section 2(47)(v) can be applied only if there is a written contract coupled with the transfer of possession in terms of Section 53A of the Transfer of Property Act. In English law, the contract to which the doctrine of part-performance applies may be oral. However, s. 53A of the Transfer of Property Act expressly requires that the contract must be in writing by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Thus Section 53A does not recognise an oral contract. The writing is an essential sine qua non for the applicability of the doctrine of part-performance. The lower authorities must have considered the relevant sale deed so as to compute the correct value of sale consideration and during the year of assessment. Being so, the assessment framed on the basis of Form 26AS is set aside.
4. However, we make it clear that if the revenue finds that there is material evidence in support of the transfer of land by assessee to M/s. Nambiars Pvt. Ltd. who had deducted TDS in anticipation of transfer of land in this A.Y. under consideration that to be brought to tax. In other words, if the revenue finds that there was a transferable land by the assessee in favour of the deductor of TDS i.e. Nambiars Pvt. Ltd. in the A.Y. by executing a proper sale deed towards transfer of the impugned property, the same may be examined in accordance with law. At this stage, we refrain from committing anything on status of the assessee in whose name capital gain to be taxed as we have set aside the assessment. It is kept open”.
5. Now the contention of Appellant Representative is that the AO misunderstood the order of the Tribunal dated 16.4.2021. The ld.AO was of the opinion that the disputed issue was remitted back to him to do fresh assessment. As such the M.P No.91/Bang/2021 Ld.AR seeks clarification on the above findings of the Tribunal.
6. The Department Representative submitted that there is no mistake apparent from the record which requires any clarification on the issue raised by the assessee before the Tribunal.
7. We have heard both the parties and perused the records. Admittedly, the Tribunal on earlier occasion categorically held that the assessment framed by AO on the basis of Form 26AS was set aside. Now, the contention of the AR is that the AO is not understood the above order of the Tribunal and passed fresh order though there was no such direction by the Tribunal. In this case, Tribunal set aside the earlier order of the AO which is passed on the basis of Form 26AS.
8. Now we will clarify the meaning of the word ‘set aside’.
