2018 (2) TMI 48

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.... case, the Ld. CIT() was not justified in upholding that the order u/s. 143(3)/147 passed by the assessing officer was not illegal, invalid and untenable in law. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in holding that the assessing officer has rightly invoked the provisions of section 50C to compute Long Term capital Gain at Rs. 61,53,470/-. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in holding that the amendment to section 50C from 01.10.2009 applied retrospectively to the transaction that took place in the assmt. Year 2008-09. 4. On the facts and in the circumstances of the case, the Ld. CIT() was not justified in directin....

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....ustified in making the addition in the year under appeal. He submitted that the stand of the Revenue is contradicted. He contended that the agreement to sale was executed on 31.05.2007 whereby the possession of land was given to the assessee and entire sale consideration was also paid on that date itself. Under these facts, in terms of section 2(47) of the Income Tax Act, the transfer stood completed on 31.05.2007, therefore, the transaction is to be related back to assessment year 2008-09 as against the assessment year 2009-10 which is reopened by the Assessing Officer. He therefore submitted that under these facts the reopening of the assessment for A.Y. 2009-10 is vitiated on the contrary. Ld. Departmental Representative (DR) strongly su....

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.... taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882(4 of 1882) or (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring or enabling the enjoyment of any immovable property. [Explanation 1]- for the purposes of sub-clauses (v) and (vi) "immovable property" shall have the same meaning as in clause (d) of section 269UA.] Explanation 2- for the removal of doubts, it is hereby clarified that "transfer" included and shall be deem t....

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....caped from assessment. However, the Ld. CIT(A) while deciding the appeal of the assessee directed the AO to assess the long term capital gain of Rs. 61,53,470/- in the assessment year 2008-09 where part of it already stood assessed at Rs. 22,50,190/-. Against this finding of Ld. CIT(A), the Revenue has not preferred any appeal. Therefore, it can be safely inferred that the Revenue has accepted that income which escaped assessment was pertaining to the A.Y. 2008-09. However, as per the notice for reopening the assessment year for opening is taken as assessment year 2009-10. In our view, this is not permissible under the law, in view of the explanation to section 2(47) wherein it clarifies that "transfer" includes and shall be deem to have....