2016 (11) TMI 714

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....f law for our consideration. "whether on the facts and on the circumstances of the case the ITAT is correct in setting aside the order passed by the Commissioner of Income Tax under section 263 of the IT Act, 1961 with regards to transfer of development rights and warranty expenses and holding that the order of AO is not erroneous and prejudicial to the interest of the Revenue with respect to the above item ?" 3. For the assessment year 20072008, the respondentassessee filed its return of income declaring total income of Rs. 19.97 Crores. Amongst the issues which arose for consideration during the assessment proceedings were: i) whether the consideration of Rs. 41 Crores received on transfer of development right is to be taxed in the ....

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....rcumstances, he set aside the assessment order dated 29/12/2009 and directed the Assessing Officer to complete the assessment proceedings in accordance with law as discussed in his order. 5. Being aggrieved, the respondent - assessee has carried the issue in appeal to ITAT. The grievance of the petitioner was to the order dated 31/10/2011 of the Commissioner of Income Tax holding that the order dated 29/12/2009 of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue on the following three issues. (a) Consideration received as transfer of Development Right. (b) Warranty expenses and (c) Set off of short term capital loss. So far as issue (a) above is concerned, the impugned order reproduced the order of t....

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....nsidered the rival submissions. With regard to issue (a) i.e. taxability of the transfer of development right, we find that the impugned order of the ITAT records findings of Assessing Officer in detail from which it is evident that the Assessing Officer applied his mind to the above claim and on the basis of the facts before him, came to the conclusion that an amount of Rs. 5.86 Crores out of Rs. 41 Crores received could alone be subjected to the tax as income during the subject assessment year. The balance amount Rs. 35.14 Crores has to be treated as deposit as the same is subject to being refunded in the absence of the environmental clearance. Thus, we find that the Assessing Officer has taken a view/formed an opinion on the facts before....