2013 (6) TMI 359

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....sment vide order dated 31.12.2010 under section 143(3) read with section 147 of the 'Income Tax Act,' 1961 (in short the 'Act'). 2. Concise facts of the case are that the assessee is a 'company'. It had not filed its 'return' for the impugned assessment year at the first instance. In the assessee's board, it had a director by the name Shri. MB. Nagakumar, having a proprietary concern namely 'M/s. Premier Properties'. On 14th August, 2002, the assessee had entered into a Memorandum of Understanding (MOU) with the said director and his concern to sell its property situated at Diwans Road, Mysore for Rs. 2 crores by way of joint venture development agreement. As per the same, the assessee was entitled to exercise its option by which it coul....

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....who was of the opinion that development agreement by way of MOU (supra) for construction of commercial/ residential apartments, even though by a single transaction would cloath it as 'trading' activity. Therefore, he treated the receipt as from 'business' and assessed total income as Rs. 1,83,97,372/-. 5. Aggrieved, the assessee preferred appeal. It is noticed from the CIT(A)'s order that he has agreed to assessee's contentions that the transaction did not involve any element of adventurous trading in the instant case. He has also held that the assessee is yet to part with possession of the property as on 31st March, 2007 and the consideration is to be received. Apart from this, he has taken into consideration catena of case laws and obs....

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....ved. 2.3. In the above circumstances the CIT(A) ought to have upheld the action of the Assessing Officer in assessing the sale purpose of the property under the business income. 2.4 It is submitted that the order of ITAT relied upon by CIT(A) in the assessee's own case had not become final as the appeal before High Court has been preferred by the Department. 3. The ld.CIT(A) erred in holding that the reference to the DVO for determination of FMV by the AO was invalid as the same is permissible by the provisions of section 55A(b)(ii) of the Income Tax Act. 4. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer ....