TaxTMI 
TaxTMI 
2013 (6) TMI 126
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....106/A, S.N. Banerjee Road. He had, to be precise, 1/3rd interest therein. He entered into a joint venture agreement whereunder the land was taken over for the purpose of construction under the name and style of Tivoli Finvest Pvt. Ltd. The assessee-respondent in his Return for the Assessment Year 2005-06 had shown indexed cost of his share in the land at a sum of Rs.16,49,606/-. He had also shown fair market value of his share in the land at a sum of Rs.43,11,000/- and thus had arrived at a long term capital gain of a sum of Rs.26,61,394/-. The contention of the assessee is that he received a sum of Rs.21,98,141/- from Tivoli Finvest Pvt. Ltd. In his computation he deducted Rs.43,11,000/- on account of the fair market value and thus arrived....
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....therefore, the views expressed by the Apex Court in the case of Kaumudini Narayan Dalal and another, reported in 249 ITR 219 (SC) and in the case of Berger Paints India Ltd., reported in 266 ITR 99 (SC) became applicable. On that basis the appeal was dismissed. Mr. Sinha, learned Advocate appearing for the appellant submitted that the judgments cited by the learned Tribunal have no manner of application to the facts and circumstances of the case. The appellate authority allowed the appeal of the assessee without going into the facts and circumstances of the case; without application of mind and without any evidence on record. He drew our attention to the order of the appellate authority allowing the appeal of the assessee. From paragraph....
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....nt from joint venture profit and you also asked to produce the document relating to joint venture account. At the time of hearing your AR filed copy of the agreement made on 15-02-99 between yourself, Sarojrani Bansal and Tivoli Finvest Pvt. Ltd. Para-10 of page-4 in the said agreement it was stated "that the sale proceeds of various units in the multistory building shall be appointed between all the owners in proportion of their respective share, i.e., 1/3rd each on completion of the multistory building or at such time or times as the joint owners may decide from time to time and after adjustment of all debits and credits, available surplus of their shares shall be payable to owner I and owner II by owner III." On plain reading of th....
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.... on the basis of the appellate judgment in the case of Smt. Sarojrani Bansal which had no similarity whatsoever. It may be that in the case of Smt. Sarojrani Bansal, contented Mr. Sinha, the Assessing Officer was not vigilant or that he recorded his satisfaction erroneously. But that does not mean that another Assessing Officer in the case of another assessment of another assessee will be precluded from applying his mind. He, therefore, contented that the order passed by the CIT (Appeal) is otherwise than on the basis of any evidence and was also passed without application of mind and is therefore nothing but perverse. Mr. Sinha distinguished the judgments in the case of Kaumudini Narayan Dalal (supra) by saying that in the aforesaid judgme....
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....ered the rival submissions advanced by the learned counsel appearing before us. To take the last submission first, it can be pointed out that the assessees, namely, the assessee before us and Smt. Sarojrani Bansal may, in fact, have occupied equal status initially, but the unequality arose from the fact that in the case of her assessment, the Assessing Officer did not realize the infirmity in her computation which was realized by the Assessing Officer in the case of the assessee before us and therefore they became unequals. The infirmity pointed out by the Assessing Officer in the case before us was not refuted by the assessee by any cogent evidence. Therefore, the assessee cannot claim equal treatment. The third submission advanced by Mr. ....
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....under the CPC. The assessee could have prayed before the Assessing Officer for issuance of summons for compelling production of books of accounts of the joint venture under Order XVI Rules 5, 6 and 10 of the Code of Civil Procedure. The fact that the assessee did not take steps to establish by producing or having the books of accounts of the joint venture produced to show that the sum of Rs.21,98,141/- was received without deducting market value of the land leads to the only inference under section 114(g) of the Evidence Act that the account books were not produced in spite of repeated opportunities because, if produced, they would not have supported the contention of the assessee that the sum of Rs.21,98,141/- was received without debiting....