TaxTMI 
TaxTMI 
TaxTMI 
2011 (9) TMI 105
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....rty Act and therefore the transaction is not covered by section 2(47)(v) of the Income Tax Act, 1961." 3. In support of the admission of this additional ground, the learned A.R. submitted that it involved only adjudication of substantial question of law and no fresh facts were required to be examined. The learned Departmental Representative opposed the admission of additional ground. Keeping into consideration the entire conspectus of the facts and circumstances of the case and the additional ground raised before us we are convinced that its adjudication does not require any fresh investigation of facts and involves substantial question of law. Respectfully following the judgement of the Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 we admit this additional ground for disposal on merits. 4. The first ground about the reopening of assessment u/s 147/148 was not pressed. The same is, therefore, dismissed. 5. Grounds Nos. 2 and 3 and also the additional ground involve common issue. The facts of the case are that during the course of reassessment proceedings for assessment year 2004-05 it was noticed by the A.O. that the assessee claimed exem....
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....ng to be constructed by the developer on the said property which was subject-matter of transfer. He stated that the assessee did not acquire any flat as agreed upon and hence the value assigned by the assessee at Rs. 19,06,800 at the time of filing return should be excluded as it was a mistake on the part of the assessee to include the said sum of Rs. 19.06 lakh in its income which was not otherwise includible as per law. It was also argued that there was no transfer of the land by the assessee to the builders for the reason that the dispute erupted from their side by not allotting the flat as agreed upon. He relied on the case of General Glass Co. (P.) Ltd. v. Dy. CIT [2007] 108 TTJ (Mum.) 854/14 SOT 32 (Mum.) to contend that the transaction would not fall within the domain of proceedings u/s 2(47) of the Act. 8. We are not convinced with the submissions advanced on behalf of the assessee. There is no dispute on the fact that the assessee holding 10% ownership right in certain piece of land agreed to transfer its share along with other co-owners to the said land to Karasha Construction Private Limited and Graceland Construction Private Limited by way of two separate agreements da....
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....n and also received consideration of Rs. 20 lakh in cash, it is difficult to hold that there was no transfer u/s 2(47). It clearly amounted to transfer giving raise to charge of capital gain. 11. Section 45 provides that any profit or gains arising from the transfer of capital asset effected in the previous year shall, subject to other provisions be chargeable to Income-tax under the head 'Capital gains' and shall be deemed to be the income of the previous year in which the transfer took place. This section clearly explains that income under the head 'Capital gains' is chargeable to tax in the year in which the "transfer" takes place. Further section 48 deals with the mode of computation of income chargeable under the head 'capital gains'. It provides that the income under this head shall be computed, by deducting from the "full value of the consideration received or accruing" as a result of 'transfer' of the capital asset, the amount of expenditure incurred wholly and exclusively in connection with such transfer and also the cost of acquisition of the asset together with the cost of any improvement. The mandate of section 48 in terms of full value of consideration is crystal clea....
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....ed that the assessee included such interest income of Rs. 21.00 lac in her total income for the A.Y. 2004-05. The Bench directed to file the computation of total income, copy of return of income and other related documents for the A.Y. 2004-05. On perusal of such documents, it is noticed that the sum of Rs. 21.00 lac has been credited to the capital account of the assessee without including it in the total income. The return for the A.Y. 2004-05 has been filed with total income of Rs.1,83,337 (after claiming deductions of Rs. 22,000 u/ss 80D and 80L) which mainly comprises of interest income from banks etc. totalling Rs.1,84,408. Thus it is evident that the said receipt of Rs.21.00 lac has not been disclosed as interest income. If that is the position, then there remains no doubt that the said sum represented the consideration in lieu of flat. It is not open to the assessee to blow hot and cold in the same breath. On one hand, when the question is of computation of capital gain, it has been claimed that the sum of Rs. 21.00 lac received from the builder was interest income and hence not part of full value of consideration towards flat, and on the other hand, if it is interest incom....