TaxTMI 
TaxTMI 
2018 (8) TMI 1061
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....-35, which is the address of the Chartered Accountant. It is also submitted that all the three legal-heirs of the deceased are uneducated and are carrying on petty businesses and only after coming to know about the proceedings through their advocate, Shri S. Rama Rao, they have filed the present appeal before the Tribunal. Taking the above contentions into consideration and being satisfied with the reasonable cause for the delay, we are inclined to condone the delay. We thus, proceed to adjudicate the appeal of the assessee as under. 3. The assessee has raised the following grounds of appeal : "1. The order of the learned Commissioner of Income Tax (Appeals) is erroneous both on facts and in law. 2. The learned Commissioner of Income Tax (Appeals) erred in holding that there was transfer of the land during the previous year relevant for the assessment year 2004-05 when the appellant could not hand over the possession of the property and when the developer could not commence any activity for construction of the property. 3. The learned Commissioner of Income Tax (Appeals) ought to have seen that there was no capital gain arising during the year under....
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....03 for development of a property by construction of residential flats, sharing the built-up area in the ratio of 39 : 61%. Observing that the said transaction falls under the purview of Transfer of Property within the meaning of Section 2(47)(v) of the Income Tax Act [Act], the Assessing Officer verified whether the assessee has filed any return of income and offered the capital gains to tax. He found that the assessee has not offered the capital gains to tax, and therefore a notice u/s. 148 was issued to the assessee and the assessment u/s. 144 r.w.s. 147 of the Act was completed by bringing to tax the Long Term Capital Gains. Aggrieved, assessee preferred an appeal before the CIT(A), challenging the validity of the reopening u/s. 147 of the Act and also the merits of the addition. The CIT(A) confirmed the addition and dismissed the appeal against which the assessee is in second appeal before us. 5. At the time of hearing, Ld. Counsel for the assessee, submitted that in the case of the co-owners, similar issues had come up before the 'B' Bench of the Tribunal in ITA Nos. 666/Hyd/2014 and others and vide order dt. 20-03-2015, the Tribunal has decided the issue in favour of th....
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....opy of the Joint Development entered into between the applicants & 7 others and Mohd. Maher alam Khan dated 30.8.1994. 2. Irrevocable General Power of Attorney executed by the appellants in favour of Mohd. Mahel Alam Khan executed on 30.8.1994. 3. Deed of cancellation of Irrevocable GPA mentioned at S.No.2 above executed on 16.10.1997. 4. Deed dated 23.6.2000 for effecting cancellation of Development Agreement executed on 28.9.1995 in favour of N. Ravi Kumar. 5. Development Agreement executed on 28.6.2000 by the appellants in favour of Sri Dwarakamai Estates P. Ltd., 6. Development Agreement entered into between the appellants and Smt. P. Chandramathi executed on 24.11.2000. 12. It was submitted that after cancelling the earlier agreements, assessee entered into a development agreement with M/s. Sun Mark Builders on 04-11-2003. It was further submitted that property was under unauthorised occupation of hut dwellers and a suit was filed before the Land Grabbing Court. The Hon'ble Court stayed the implementation of the development agreement. After prolonged conciliation proceedings, substantial amounts were paid for getting them v....
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....o the Developer to commence the Development work after demolishing the existing structures. 5(a) The Developer hereby agree, covenant and undertakes to handover or deliver 39% of the constructed area i.e., super-built areas which include all shareable areas in common passaged, basement, sewage lines, electrical lines, balconies etc., in all floors of the proposed complex or mutually agreed between the parties to the owners free of cost in lieu of utilisation of their land comprised in the schedule mentioned property for the above said development and construction. The remaining 61% of the constructed area would be retained by the Developer. The earmarking of the portions shall be made after receipt of the approved plans. (b) The developer shall have the rights over the site and terrace floors of the proposed residential complex to the extent of 61%. In case further floor is permitted to be constructed by the MCH the same shall be apportioned in the above ratio i.e., 39 : 61 between the owners and the developer. (c) If the owners or the developer received more of constructed areas that her/her/they are/is entitled to in terms of clause (a) above, then the ....
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....0,000/- per month shall be paid till the completion of construction. However, six months grace period was allowed. By perusing the above terms of the agreement and the fact that the receipts obtained from the tenants indicate that most of the tenants have been settled and paid by the time agreement was entered into, we are of the opinion that assessees did give possession of the property to the said developer at the time of entering into agreement and the terms of agreement have been fulfilled. 16. The Hon'ble A.P. High Court in the case of Potla Nageswara Rao vs. DCIT [365 ITR 249] held as under: "Each and every individual case stands on its own footing. Before admitting an appeal the High Court must examine the issue before it on its own merits. The pendency of another matter cannot be a ground to proceed with the matter. On March 7, 2003, the assessee entered into an agreement with a developer and the plan of the building was approved on March 31, 2003. These dates fell in the previous year 2002-03, relevant to the A.Y. 2003-04. Thus, the Tribunal held that the land being a capital asset was transferred by the assessee to the developer during the A.Y. ....
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....iples laid down in the above case, does not apply to the facts of the present case. Therefore, we are of the opinion that capital gains is correctly imposed in the order under consideration. The action of the Assessing Officer in levying capital gains in the impugned year is consequently upheld. B. Sale Consideration to be adopted 19. As briefly stated above, the A.O. while considering the sale consideration has taken two amounts for consideration, one amount is 'sale consideration received under the guise of refundable deposit' of Rs. 11,00,165 and other 'value of constructed area of flats received in lieu of asset given for development' at Rs. 63,71,290 in each case. assessee did contest that both the amounts cannot be taken and value of cost of construction for the builder has to be adopted and not the market price of sale value. As already stated above, Ld. CIT(A) did not adjudicate this issue at all. 20. After considering the rival contentions, we are of the opinion A.O. cannot take both the amounts into consideration as it will be a double addition. To that extent, A.O. action cannot be upheld. It is also assessee's contention that value of construc....