TaxTMI 
TaxTMI 
2017 (2) TMI 794
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....roperty, and not the whole; iii) That by any reckoning, in the given facts, the assessment ought to have been framed in the status of AOP by impleading all the legal heirs of the deceased Shri Kartar Singh Pahara. 2. That without prejudice to above legal grounds, the Id. CIT(A) has erred in confirming the taxation of notional capital gain of Rs. 3,65,06,833/- by wrongly upholding that the transfer of land took place on the very date of execution of a Joint Development Agreement with the developers. 3. That the ld. CIT(A) ought to have read the Joint Development agreement in totality, so as not to infer the accrual of capital gain on the very date of execution of the said agreement. 4. That the ld. CIT(A) was not justified overlooking various judicial authorities relied upon by assessee, on a facial distinction drawn by him. 5. That exemption claimed u/s. 54F ought to have been allowed. 6. That the ld. CIT(A) wrongly rejected the assessee's claim that the impugned capital gain, if any, could be assessed only in the hands of Society and not the assesseee member. 7. That the assessee's claim not to tax the impugned gain on the principles of mutuality involved in the tran....
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....)Rs.2,43,117/-) as a long term capital gain. In case you have any objection to the same file the same on the date of hearing along with supporting evidence. Further, I purposed to assess rental income at Rs. 25,200/- and interest income at Rs. 5,384/-. Notice U/s.142(1) fixing your case for 11/12/2009 is enclosed. Please note that no adjournment will be allowed as it a time barring case. Thereafter, the ld. CIT initiated the proceedings u/s.263 and notices have been issued to the legal heir of the assessee and in pursuance to the order passed u/s 263, the Assessing Officer determined the liability again which reproduced herein below. 13.0 Another issue is regarding the amount of consideration which has been proposed in the show cause in present proceedings at Rs. 3,67,50,000/-. There is no dispute on the issue that the total consideration involved in this transaction includes the amount of cash component referred to in clause 4.1 of the agreement and the value of the flat which has to be given by the developer to the members of the society. As regards valuation of the said flat each at Rs. 450G per square feet, the rate has to be taken as per the rate offered to the genera....
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....t of LTC gain worked out by subtracting the resultant cost of acquisition as on 1.2.2001 at Rs. 2,43,167/- from the total transfer consideration of Rs. 3,65,06,833/- and the same is hereby confirmed and sustained. This disposes of ground of appeal No.6 to 7 accordingly against the appellant. 8. Regarding ground of appeal No.8 pertaining to the appellant's grievance against non providing the benefit claimed u/s.54F, The appellant not only failed to adduce relevant documentary evidence in support of his claim u/s.54F before the Assessing Officer, but she has also failed to provide relevant corroborative evidence before the undersigned during the appellate proceedings, under consideration. Section 54 lays down two important pre conditions to claim benefit one is provided in 54F(4), which is reproduced as under: "The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be depos....
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....g aggrieved by the order passed by the ld. CIT(A), the Assessee preferred the instant appeal . 7. That at the outset , the ld. AR argued that all the six legal heirs should have been brought on record and the Assessee (deceased) was only a nominee and acted as a nominee only, however, the Revenue determined the complete liability on the Assessee (deceased) as the same is against the law because the property of the deceased is required to be vest according to Sec.159 & Sec.168 of I.T. Act and also in Succession Law, all the legal heirs entitled to get their respective shares in the property of the deceased husband of the assessee. The assessee also filed the revised return and clarified her stand that she is not liable to pay any tax as an individual with regard to the property of her deceased husband. The ld. AR also submitted that even otherwise no estopple can be applied in the instant case as it is against the law because inadvertently the assessee had filed the return by disclosing the transactions of two properties in her name but subsequently, she filed the revised return and clarified, therefore, if inadvertently she had shown the property as her own then also she cannot be....
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....ted 25.02.2007 so as to fall within the domain of section 53A of the Transfer Act and consequently, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, as it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act. Further, in clause 26 of the JDA dated 25.02.2007, the principle of force majore had been provided for, which would be applicable with full vigour in the circumstances. From the cumulative effect of the covenants contained in the JDA read with the registered special power of attorney dated 26.02.2007, it could not be held that the mandatory requirements of section 53A of the Transfer Act were complied with, which stood incorporated in section 2(47)(v) of the Act and once that was so, it could not be said that the Assessees were liable to capital gain tax in respect of the remaining land which was not transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angel, it could not be said that any income chargeable to ....
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....of Mrs. Manjeet Kaur. We have minutely gone through the documents as it reflects from the facts that the assessee have received the earnest money from the Punjab Co-operative House Building Society, Mohali, but there is no document which reflects that earnest money have been distributed among the legal heirs or not even otherwise this required to be invested that whether the assessee had shown herself as sole and exclusive owner of the properties under consideration and/or having any testamentary documents to claim exclusive ownership with rights to take care, deal and disposed off the property under question. For the sake of brevity, we feel it appropriate to reproduce the contents of the Section159 & 168 of the I.T. Act. "Sec.159(1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with t....
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....f complete distribution to the beneficiaries of the estate according to their several interests. (4) In computing the total income of any previous year under this section, any income of the estate of that previous year distributed to, or applied to the benefit of, any specific legatee of the estate during that previous year shall be excluded; but the income so excluded shall be included in the total income of the previous year of such specific legatee." In the instant case also the Assessee cannot be fasten with the complete liability until and unless finalization/and/or receiving the entire sale consideration as the Punjab & Haryana High Court in the case of C.S. Atwal vs. CIT (supra) held as under: "since no possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.02.2007 so as to fall within the domain of section 53A of the Transfer Act and consequently, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of th....