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11-06-2019, MDLR Builders, Section 246, 2(14), 2(45), 25 l(l)(a), Tribunal Delhi

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3 months 1 week ago #9717 by amit
Section - 246, 2(14), 2(45), 25 l(l)(a), 10(2A), 251, 45(4), 47
Order Date - 11-06-2019
Favouring - Assessees Partly allowed for statistical purpose
Court - Tribunal Delhi
Appellant - MDLR Builders P. Ltd.
Respondent - DCIT
Justice - R.K. PANDA AM & KULDIP SINGH JM
Citation - 619Taxpundit133
Appeal No. - ITA No.8214/Del/2018
Asstt. Year - 2008-09

Order

PER : R.K. PANDA, AM

The above two appeals filed by the respective assessees are directed against the separate orders dated 27.11.2018 of the CIT(A)- 26, New Delhi relating to A. Y. 2008-09. Since identical grounds have been taken by the respective of assessees in these appeals, therefore, these were heard together and are being disposed of by this common order.

ITA No.8214/Del/2018 (MDLR Builders India Ltd.)

2. Facts of the case in brief, are that the assessee is a company dealing in real estate land trading and development. A search was conducted at the office premises of the company on 31.01.2008. Accordingly notice u/s. 142 (1) was issued on 11.07.2009 and again on 17.09.2009 with a questionnaire. However, the assessee did not file any return of income in response to the statutory notices. Since the assessee was not responding to the statutory notices issued u/s. 153A, 142 (1) and 143 (2), the Assessing Officer completed the assessment u/s. 144 of the Act on 21.12.2009 determining the total income at Rs.110,12,38,532/-.

3. The assessee moved an application before the CIT(Central)-II, New Delhi under the provisions of section 264 on 14.06.2010. The CIT(Central)-II, New Delhi vide order dated 16.03.2012 disposed of the application of the assessee with a direction to the Assessing officer to reframe the assessment afresh after making required enquiries, investigation and verifications.

4. The Assessing Officer thereafter issued notice to the assessee asking for various details. However, a perusal of the assessment order shows that there was no proper compliance from the side of the assesse. Therefore, the Assessing Officer proceeded to pass the order again u/s. 144 of the IT Act on the basis of information collected from third party enquiries during initial assessment and documents seized at the time of search.

5. The Assessing Officer noted that the assessee company has sold its share in the partnership firm M./s. Trishul Industries to M/s. Vatika Ltd. and its promoter Shri Anil Bhalla during the year. M/s. Trishul Industries holds 11 acres of land along the NH-8 and has license to set up and operate a resort cum hotel at this site. The details of acquisition and transfer of partnership share in the firm M/s. Trishul Industries has been narrated by the Assessing Officer which is as under :-

a) On 15.06.05 M/s. MDLR Estates Private Ltd M/s. MDLR Builders P. Ltd (M/s. MDLR Group companies) and Shri Gopal Kumar Goyal (CMD of MDLR Group of companies), entered into an “agreement to sell” with the existing partners of M/s. Trishul Industries, i.e. Shri Ravi Shankar, Shri S.C, Babber, Shri Satish Chandra Babber and Shri RL Kukreja for transfer of partnership share of the firm to MDLR Group of Companies as mentioned above. Total Payment of Rs 19.2 Cr was made to four partners in lieu of transfer of partnership shares by them. Rs.9,50,00,000/ was paid by M/s. MDLR Estates Pvt Ltd and Rs.9,50,00,000/- was paid by M/s. MDLR Builders Pvt. Ltd.

b) On 25.10.06 a deed of retirement was signed between the above mentioned parties which formalized the agreement to sell signed on 15.06.05. As per the deed of retirement the original four partners retired from the firm and the place of business also changed to the registered office of MDLR Group of companies. By this deed of retirement the MDLR group took full control of the firm. The partnership shares were held as given below:-

c) The retiring partners were given the capital back from the firm. It is to be noted that they paid tax on capital gain in assessment year 2007-08, earned from sell of partnership share in M/s Trishul Industries.

d) On 29.11.07, the MDLR Group Companies entered into a deed of retirement with M/s. Vatika Ltd. by which it agreed to transfer 85% of partnership share in M/s Trishul Industries to M/s. Vatika Ltd & Shri Anil Bhalla The deed states that "the amounts paid by the continuing partners is in consideration of all rights, title and interest of the retiring partners in the said partnership" i.e. M/s. Trishul Industries. This, according to the Assessing Officer, means that the payments made by M/s. Vatika Ltd to MDLR Group companies is for the partnership share in M/s. Trishul Industries which includes the rights, title and interest embedded in the partnership share.

e) On 15.12.07 a deed of partnership was signed between MDLR Group and Vatika Group. By this deed 85% of partnership is

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