TaxTMI 
TaxTMI 
2010 (4) TMI 1017
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....ved from the society as taxable in A.Y. 2002-03 instead of A.Y. 2003-04 as shown by your appellant. 2. The ld. A.O. erred in determining long term capital gain at Rs.12,62,619/- by taking total receipts as capital and this denying benefit of cost and indexation to the appellant. 3. The ld. A.O. has erred in initiating penalty proceedings u/s 271(1)(c) without appreciating furnishing of detailed working in A.Y. 2003-04 for calculation of long term capital gain and also payment of tax as a precautionary measures." 2. On 2nd April 2010, the assessee has moved a petition seeking admission of following additional ground of appeal:- "The ld. A.O. erred in assessing an amount of Rs.12,62,619/- received upon sale of additional TDR as long term ....
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....oney of Rs.25,000/- towards sale of such rights was accepted by the assessee on this date. The total consideration for this sale of rights was Rs.12,62,619/- which was received in the following manner:- Date Amount (Rs.) 01.02.2002 25,000 31.07.2002 1,73,906 11.12.2002 1,73,906 25.07.2003 1,86,328 18.12.2003 1,86,328 30.04.2004 1,86,328 23.06.2005 3,30,823 Total:- 12,62,619 6. On the facts, the Assessing Officer treated the long term capital gain, on sale of rights, of Rs.12,62,619/- for the assessment year 2002-03. The assessee's contention was that by no stretch of logic, it can be income of the assessment year 2002-03, as condition precedent to transfer of rights, i.e., obtaining of commencement certificate from B.M.C.....
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....l Wvg. Mill Co. (P) Ltd.'s case (supra) is no longer sustainable in law. We need not go further into this aspect of the matter. The only other reason of rejecting the claim that the assignment of additional FSI is that, according to the authorities below, this right has cost of acquisition which consists of cost of purchase of plot, costs of getting the designs approved and costs of constructing the building. In this context, however, what is necessary to appreciate is that the rights assigned to the developer are the rights to receive and apply the transferable development rights, and that these rights arose to the assessee by the virtue of introduction of 'DCR'. Until the point of time these development regulation came into existence, the....
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....nt has to surrender the reserved plot but the person on whose plot such TDRs can be used, as is the case we are in seisin of, does not do anything more than owning the 'receiving plot'. The costs incurred by a third party for acquiring the TDR has nothing to do with the right to availing the said TDR on assessee's plot. Similarly, the costs of plot and costs of construction are also not the cost of acquisition of these rights. What the assessee has transferred is not the plot or the building, but a right parting with which does not result in parting with land or building. The costs of obtaining BMC approval for the building plan can also not be said to be the costs of acquisition of these rights as these rights do not arise by the virtue of....