2015 (12) TMI 1671

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....njab Co-operative House Building Society Ltd. Mohali which was the owner of 21.2 acres of land in village Kansal, District Mohali. The said society entered into a Tripartite Joint Development Agreement on 25/02/2007 with M/s Hash Builder (Pvt.) Ltd. Chandigarh and M/s Tata Housing Development Company Ltd. Mumbai by virtue of which the Society would transfer its land for development in lieu of monetary consideration and also consideration in kind to members of the society. The total consideration was settled at Rs. 82,50,000/- plus allotment of one flat of 2250 sq. feet to the asessee out of which assessee had received Rs. 15 lakhs. The assessee furnished his return of income declaring income of Rs. 13,39,720/-. The Assessing Officer noticed....

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....nsideration, actually received or receivable by the appellant as sale consideration and that the total amount of capital gain is assessable as the income of the year under appeal has been upheld by the Tribunal. Therefore, the limited point for consideration is whether the appellant has a reasonable explanation for his omission to disclose the income by way of capital gains in the return. In the return filed on 12.11.2009 i.e. before the issue of notice u/s 148 (on 31.12.200), the appellant had disclosed the amount of Rs. 15 Lacs, relating to the transfer of plot and had paid tax on capital gain computed on this sale consideration. In this return, some income under the head capital gains was shown but the sale consideration shown was only t....

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....e the agreement had been cancelled, was therefore not declared in the return of income. Ld. AR stated that the addition made was in respect of a flat which was not in existence and the value of which had been taken @ Rs. 4500/- per sq. feet without any basis. Ld. AR argued that since the addition itself was based on surmises and conjectures, penalty could not be levied on the same. He further pointed out that the assessee has disclosed all the particulars in the return of income as well as before Assessing officer and on a mere difference of opinion, penalty could not be levied. Ld. AR also submitted that the quantum issue had been decided in favour of the assessee by the Hon'ble Punjab & Haryana High Court in ITA No. 306 of 2013 (O&M) dt. ....

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.... order as follows : "46. We summarize our conclusions as under:- 1. Perusal of the JDA dated 25.2.2007 read with sale deeds dated 2.3.007 and 25.4.2007 in respect of 3.08 acres and ITA No.200 of 2013 (O&M) 75 4.62 acres respectively would reveal that the parties had agreed for pro-rata transfer of land. 2. No possession had been given by the transferor to the transferee of the entire land in part performance of JDA dated 25.2.2007 so as to fall within the domain of Section 53A of 1882 Act. 3. The possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of a transferee. 4. Further Section 53A of 1882 Act, by incorporation, stood embodied in sec....