2016 (4) TMI 804

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....ate to the assessment year 2007-08. Since issue involved in all these cases is common and therefore, these appeals are heard together and are being disposed of by this consolidated order for the sake of convenience. We shall take up the grounds as raised in ITA No.4518/Mum/2012 which are as under: "1. On the facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in directing to consider the non refundable deposit of Rs. 6.25 lakhs received by the assessee as cost of consideration instead of considering Rs. 2,47,60,250/- paid by flat owners to the vendors i.e. assessee and his brother as per the agreement between vendors, flat owners and builder in which the builder is only the confirming party and vendors ha....

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....ction 148 of the Act to assess the long-term gain arising out of the said transaction. The notice under section 148 of the act was issued on 1st May 2009 in response to which the assessee filed his return of income on 28 April 2010 at Rs. 164,451/-. 3. The assessee during the course of assessment proceeding submitted before the AO that he was not given any consideration or part thereof and the entire consideration under the conveyance deed was received by the developer M/S DCPL. The assessee submitted before the AO that Rs. 2,47,60,250/- represented the total price paid by the flat owners for the flats purchased and car parking area to the builder and he had not received anything out of the said consideration. The said builder had duly p....

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....to the company. In view of this the assessing officer is now directed to verify the above working and work out that appellant. Subject to this direction the appeal of the assessee is allowed." 5. The DR submitted before us that the assessee had not paid any capital gain tax on the long-term capital gain accruing from the conveyance deed. The DR further submitted that the assessee did not pay any tax in the financial year 1979-80.The assessee was party to the said conveyance deed therefore the AO had rightly assessed the capital gain arising out of sale of land through the conveyance deed. 6. Per contra, the AR submitted before us that though the assessee had not paid any tax on the non-refundable compensation/Lease money received for ....

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....ng was received by the assessee. It is also an undisputed fact that the builder had paid the due taxes on the profits earned by it and income from the same transaction could not be taxed twice firstly in the hands of developers M/.S DCPL who received the consideration actually and second in the hands of the assessee who was just confirming party to the conveyance deed. In our opinion the assessee must be taxed only in respect of the long-term gain on the lump sum compensation received at the time of leasing of the land Rs. 6,25,000/- being 50% of total compensation received i.e Rs. 12,50,000/- in 1979. Thus, we do not find any infirmity in the ordere of CIT(A) and uphold the same. We therefore, direct the AO to take the sale consideration a....