TaxTMI 
TaxTMI 
2017 (6) TMI 1258
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....ld the Builders cost as basis for determination of the consideration of the 55%of the land transferred measuring 3153 sqft without appreciating the facts and circumstances of the case. 4. The Ld. CIT(A) ought to have held that the FMV as on the date of JDA based on the value of Sub-Registrar was the consideration in respect of the 55%of land transferred in favor of Developer and not the Developer's cost of construction. 5. The Ld. CIT(A) ought to have not held that the facts of the Appellant's case were different than the facts in the case of Ved Prakash Rakara mealy on the Ground that no price was mentioned in the JDA ignoring the ratio laid down by the Hon'ble Jurisdictional High Court, wherein it was categorically held that the Builders cost cannot be the basis for determination of consideration of the land transferred in the scheme of JDA 6. The Appellant craves leave to add, alter, amend and delete any of the grounds at the time of hearing. For these and other grounds that may be urged at the time of hearing, the Appellant respectfully prays that your Hon'ble Authority be pleased to pass orders deleting the Capital Gain amounting to Rs. 88,96,056....
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.... to the law and facts of the case in view of the decision of the Hon'ble High Court of Karnataka (Supra) and therefore, the Assessee having been aggrieved with the Assessment order has filed an Appeal before the Ld. CIT(A)-3, Bangalore. 08. The Ld. CIT(A) has passed an Appellate order dated: 25-12- 2015 and dismissed the Appeal on the ground that the decision of the Honble High Court of Karnataka in the case of Ved Prakash Rakhra (2015) 370 ITR 762 (Kar) was not applicable since the facts of the Assessees case are distinguishable from the facts in the case of Ved Prakash Rakhra (2015) 370 ITR 762 (KAR). 09. The Ld. CIT(A)-3 got misdirected by mis-reading the judgment of the Honble High Court of Karnataka in the case of Ved Prakash Rakhra (2015) 370 ITR 762 (KAR). The Ld. CIT(A) has mis-read the facts of the Assessee's case and erroneously held that the facts of the Assessee's case are different from the facts in the case of Ved Prakash Rakhra (2015) 370 ITR 762 (KAR), ignoring the ratio laid down by the Hon'ble High Court of Karnataka . The Ld. CIT(A) has held that the f ac t s of the Assessees case were different than the facts in the case of Ved Prakash Rakhra where....
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....e date of JDA should have be considered for quantifying the consideration of the land transferred. 13. The Assessee submits that the AO and the CIT(A) have relied upon the information provided by the Developer wherein the cost of Rs. 1238/- per sq.ft was reported by the Builder and the same was adopted by the AO and Confirmed by the CIT(A) for quantification of the consideration which was determined at Rs. 1,08,13,930/- determined by the Ld. AO. The findings of the CIT(A) as regards adoption of Builders cost of Rs. 1238/- per sq.ft is completely opposed to the ratio laid down by the Hon'ble High Court of Karnataka. 14. On the other hand, the learned DR relied upon the order passed by the lower authorities and has also relied on the judgment of the Hon'ble jurisdictional High Court in the case of Ved Prakash Rakhra (supra). In the facts and circumstances of the case, the DR pleaded that the order passed by the authorities below is required to be upheld. 15. We have heard the rival contentions and perused the materials on record. Relevant clauses, viz., 2(f), (g), 4.1, 4.2, 5.1 to 5.6, 6.1, 8.1 to 8.3 and 12.1 to 12.3 of the JDA are reproduced hereunder for the purposes ....
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....uctions of the Schedule Property including the OWNERS share of constructed area as set out in this Agreement. 4.2) The land tax in respect of the schedule property shall be paid by the OWNERS until the completion of the project and from the date of delivery of possession of the OWNERS 45% share in the residential complex, the OWNERS shall become liable to pay the property tax as may be determined by the authorities to the extent of the share allotted to the OWNERS. The DEVELOPER or its nominee/s shall be liable to pay the property tax on the completed residential units to the extent of 55% allotted to the share of the DEVELOPER. 5. SHARING OF SUPER BUILT AREA: 5.1) In consideration of OWNERS agreeing to transfer an undivided 55% (Fifty Five Percent) share in the land in favour of the DEVELOPER or its nominee/s, the DEVELOPER does hereby agree to construct and deliver to the OWNERS or their nominee/s or assignee/s free from encumbrances and all claims of 45% (Forty Five Percent) of the Super built-up area in the building with 45% of the Super built up area in the building with 45% share in the car parking slots to be provided in the compl....
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....ill be proportionate to the super built area retained by the DEVELOPER in the land in Schedule Property and they shall be entitled to all income, gains, capital appreciation and benefits of all kinds and description accruing, arising or flowing there from. 5.5) That after allotment of OWNERS CONSTRUCTED AREA as aforesaid in Para 5.1 on sanction of license and plans, the DEVELOPER shall be entitled to sell or otherwise dispose of the DEVELOPER'S CONSTRUCTED AREA etc., Viz.. the remaining Super Built area in the buildings and car parking areas, areas and the benefits and advantages available with proportionate undivided share in the land in the Schedule Property. 5.6) That after the sanction of plans, the OWNERS and DEVELOPER shall mutually decide upon the apportionment of their respective built up areas falling to their shares by mutual discussions and reduce the same into writing in the form of Supplemental Sharing Agreement. Both the Parties shall share both the advantages/disadvantages in proportion to their respective shares on equitable basis and in such manner that the value of the arcas is of more or less equal value and importance, b....