AI Drafter 
TaxTMI 
TaxTMI 
2019 (1) TMI 590
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....assessment. Consequent thereto, notice u/s 148 of the Act was issued to the assessee on 20.01.2012. The assessee then filed her return of income for Assessment Year 2008- 09 on 24.12.2012 declaring NIL income. The assessment was concluded u/s 143(3) of the Act vide order dated 25.03.2013 wherein the assessee's income was determined at Rs. 47,14,769/- in view of the assessee's 40.07% share in the LTCG arising on account of JDA in respect of the aforesaid New Thippasandra property. On appeal, the CIT(A) dismissed the assessee's appeal vide order dated 19.09.2016. 2.2.1 On further appeal by the assessee, a co-ordinate bench of this Tribunal, in its order in ITA No.75/Bang/2017 dated 6.10.2017, remanded the matter to the file of the AO for consideration and adjudication on the issue of validity of re-opening of assessment as well as other grounds, modified/additional grounds of appeal raised on merits, holding as under at para 4.4.1 thereof: "4.4.1 We have heard the rival contentions and perused and carefully considered the material on record. In support of her contention that the AO has not supplied her with the reasons recorded for re-opening the assessment despite the as....
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....Petition (MP) in M.P. No.42/Bang/2018 which was allowed vide order dated 10.04.2018 whereby the order in ITA No.75/Bang/2017 was amended as under: "3. We have heard both par4:ies h the matter and perusal and carefully considered the material on record. On a perusal of the submissions put forth by the petitioner in the MP., the impugned Tribunal's order dt.6.10.2017 in the case on hand and the order of the co-ordinate bench in the case of Sri Damodar Reddy LTA No.167/Bang/2017 dt.5.5.2017 which was referred to and followed by us, we find that an inadvertent mistake has crept into our order dt.6.10.2017 in the case on hand, whereby at para 4.4.1 of the order, we have wrongly mentioned that the matter is remitted to the file of the Assessing Officer for consideration and adjudication of the issue of validity of reopening of assessment as well as other grounds, modified / additional grounds of appeal raised on merits. We ought to have mentioned that the aforesaid matters / issues / grounds (supra) are remitted to the file of the CIT (Appeals) for consideration and adjudication; as has been the view / direction in the case of Damodar Reddy (supra) which was referred to and ....
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....essor in the first round of appeals and consequently dismissed the assessee's appeal vide the impugned order dated 31.10.2018. 3. Aggrieved by the order of the CIT(A)-4, Bangalore, dated 31.10.2018, for Assessment Year 2008-09, the assessee has preferred this appeal before the Tribunal wherein he has raised the following grounds: 1. The order of the learned Commissioner of Income-tax [Appeals] passed under Section 250 r.w.s. 254 of the Act in so far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. Grounds on jurisdiction on re-opening of assessment u/s. 148 of the Act. [i] The learned Commissioner of Income -Tax [Appeals] failed to appreciate that the assessment order passed u/s. 147 rws 143[3] of the Act is bad in law and void ab initio in as much as the reasons recorded were not communicated to the Appellant though the same was requested vide letter dated 22/02/2012, consequently the assessment order founded on an invalid reopening deserves to be cancelled on the facts and circumstances of the case. [ii] The learned Commissioner of Income-tax [Appeals....
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....t of construction of the developer as the full value of consideration of land on the facts and circumstances of the case. i) The CIT [A] erred in confirming the assessment order wherein the cost of construction as per the developer at Rs. 1139 per Square feet was considered and consequently, arriving at the sale consideration of land of the Appellant at Rs. 48,69,759/- on the facts and circumstances of the case. ii) The learned CIT [A] was not justified in confirming the order of the learned assessing authority who adopted the cost of the super built up area of the owner's constructed portion as per the developer as the full values of sale consideration on the facts and circumstances of the case. iii) Without Prejudice, the learned CIT [A] erred in not considering guideline value of the land as the sale consideration in the computation of capital gains on the facts and circumstances of the case. iv) Without further Prejudice, the authorities below ought to have taken the guideline value of the land for the purpose of computation of capital gains on the facts and circumstances of the case. 5. Without Prejudice, grounds on non-granting....
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.... not urged, are dismissed as infructuous. 5. Ground No. 7 - Charging of interest u/s 234A and 234B of the Act 5.1 In this ground (supra), the assessee denies himself liable to be charged interest u/s 234A and 234B of the Act. The charging of interest is consequential and mandatory and the AO has no discretion in the matter. This proposition has been upheld by the Hon'ble Apex Court in the case of Anjum H. Ghaswala (252 ITR 1) (SC) and I, therefore, uphold the action of the AO in charging the assessee the aforesaid interest u/s 234A and 234B of the Act. The AO is, however, directed to re-compute the interest chargeable u/s 234A and 234B of the Act, if any, while giving effect of this order. 6. Ground No. 3: Transfer as per section 2(47)(v) of the Act 6.1 In this ground (supra), the assessee contends that the authorities below failed to appreciate that there was no event of 'transfer' as defined in section 2(47)(v) of the Act in the case on hand as no possession was handed over to the developer after entering into the JDA and therefore there was no question of capital gains arising to the assessee. 6.2 We have heard and considered the rival contentions / submissions an....
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....he CIT(A) ought to have applied the principles laid down in the decision of the Hon'ble Jurisdictional High Court in the case of Smt. K. G. Rukminiamma (supra) and allowed the assessee exemption u/s 54/54F of the Act for the two flats / units. It is the contention of the learned AR that the Hon'ble Karnataka High Court in the aforesaid decision (supra) has held that the meaning of "a residential house" in section 54 of the Act meant that the assessee is entitled to exemption in respect of multiple units in the same residential building/complex. In view of the above, it is submitted by the learned AR that the aforesaid decision of the Hon'ble Karnataka High Court in the case of CIT Vs. Smt. K. G. Rukminiamma (2011) 331 ITR 211 (Kar) squarely applies on all fours to the assessee in the case on hand on both facts and in law and it is therefore prayed that the assessee be granted exemption u/s 54/54F of the Act in respect of all units i.e., the 2 flats in the same residential building/complex received by the assessee in terms of the JDA. In this regard, reliance was also placed on the decision of the co-ordinate bench of this Tribunal in the case of Smt. Netravathi Vs. ITO in ITA No. 2....
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....s 54F of the Act; holding as under at para 11 thereof: "11. We have given careful consideration to the rival submissions. We find that the facts of the Assessee's case are similar to the case of Smt. K.G. Rukminiamma (supra) decided by the Hon'ble Karnataka High Court. In the case of K.G.Rukminiamma, the facts were on a site measuring 30' x 110' the assessee had a residential premises. Under a joint development agreement she gave that property to a builder for putting up flats. Under the agreement 8 flats are to be put up in that property and 4 flats representing 48% is the share of the assessee and the remaining 52% representing another 4 flats is the share of the builder. So the consideration for selling 52% of the site was 4 flats representing 48% of built up area and the 4 flats are situated in a residential building. The Court held that the 4 flats constitute 'a residential house' for the purpose of sec 54. The 4 residential flats cannot be construed as 4 residential houses for the purpose of sec 54. It has to be construed as "a residential house" and the assessee is entitled to the benefit accordingly. In that view of the matter, the Court hel....