TaxTMI 
TaxTMI 
2020 (6) TMI 403
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....e of the same be taken. 3. The Hon'ble Appellate Commissioner in his impugned order confirmed the addition of a sum of Rs. 37,99,873/- which was added by the Assessing Officer as the business income during assessment which is bad in law as the appellant declared capital gains from the very inception of the joint development agreement. 4. For that the facts and circumstances the Appellate Commissioner erred in upholding addition made by ld. Assessing Officer of Rs. 37,99,873/- on account of business income. The addition is not called for and hence the same should be deleted. 5. The appellant craves leave to press new, additional grounds of appeal or modify, withdraw any of the above grounds at the time of hearing of the appeal. 3. Brief facts qua the issue, as stated in the assessment order, are as follows: "The assessee has declared income from Long Term Capital Gains and claimed exemption u/s. 54 of Rs. 52,92,237.43/- for alleged investment in the property. In course of proceedings u/s. 142(1) and in compliance with requisition from time to time for furnishing the details of Capital gains, the assessee furnished Balance sheet for F.Y. 2010-11....
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....ement with the developer to develop and construct a real estate project at the developers cost. The key feature of JDA is that the land owner contributes land and developer undertakes the responsibility of obtaining approvals, property development, launching and marketing the project with his financial resources. The land owner may get consideration in the form of either: i) lump sum consideration ii) percentage of sales revenue iii) certain percentage of constructed area in the project, depending uponthe terms and conditions agreed upon between them. In this manner, the resources and efforts of land owner and developer are pooled together. In such an arrangement execution of JDA between the owner of the immovable property and the developer gives the rise to capital gains tax liability in the year in which immovable property is handed over to the developer for development of project. The receipt of consideration (Share of Constructed area or Share revenue) in future does not affect the timing of the taxable event. However, with effect from 01.04.2018 in order to mitigate hardship to the assessee the Finance Act 2017 had inserted sub section (5A) ....
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....sessment year 2012-13. He also filed intimation u/s 143(1) of the Act received from the department for assessment years 2005-06, 2006-07 and 2007-08. 7.On the other hand, the ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity. 8. We heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials available on record. We note that assessee had submitted the following written submissions before the ld CIT(A), which is relevant to adjudicate the issue raised by the assessee therefore, the same is reproduced below: "1.The assessee acquired the land situated at 702/4 Sarat Chatterjee Road, Shibpur, Howrah 711102 by way of gift from Father, Shri Prasanta Ganguly in financial year ended 31st March,1985 (Gift tax was duly paid by the above donor in relation thereto).Copy of the gift deed already submitted. 2.The assessee entered ....
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.... of Rs. 16,85,405/-(paper book pg.No.1). The Income Tax Return for the assessment year 2005-06 was processed by the Income Tax Department under section 143(1) of the Act and the Department accepted the long term capital gain of Rs. 16,85,405/- declared by the assessee. The ld Counsel also submitted the copy of the Income Tax Return for the previous year 2005-06 relevant to assessment year 2006-07 wherein the assessee had declared long term capital gain to the tune of Rs. 19,39,857/-(paper book pg.No.4). The Income Tax Return for the assessment year 2006-07 was processed by the Income Tax Department under section 143(1) of the Act and the Department accepted the long term capital gain of Rs. 19,39,857/- declared by the assessee. We noticed from the Income Tax Return filed by the assessee, as mentioned above, that the assessee had already declared capital gain in the preceding previous years on the basis of the Joint Development Agreement therefore the same should not be taxable again in the hands of the assessee, otherwise it would be tantamount to double taxation on the same income. We note that during the A.Y. 2012-13, the assessee has sold a part of his selfoccupied p....