2020 (11) TMI 949

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..... The appeal was admitted by a bench of this Court vide order dated 16.12.2014 on the following substantial questions of law: (i) Whether in the fact and in circumstances and in law the tribunal was correct in holding that there is no failure on the assessee to disclose truly and fully all material facts necessary for computing its income due to which income has escaped tax, admittedly when the assessee has not disclosed the fact regarding handing over of possession of the property to the developer pursuant to JVA and recorded a perverse finding? (ii) Whether in the fact and in circumstances and in law the tribunal was correct in holding that disclosure of JVA and advance receipt from JVA amounts to disclosure, when the cr....

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....(hereinafter referred to as 'the tribunal' for short) by filing an appeal. The tribunal by an order dated 30.07.2013 inter alia held that earlier order of assessment was made under Section 143(3) of the Act on 22.12.2006 and the assessment has been reopened after expiry of four years and therefore, the proviso to Section 147 of the Act applies. It was also held that the Assessing Officer has not mentioned that the assessee had failed to disclose truly and fully all material facts necessary for computing its income, due to which the income had escaped tax. Accordingly, the order of re assessment was set aside. In the aforesaid factual background, this appeal has been filed. 4. Learned counsel for the revenue submitted that the ass....

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....iled to disclose the transaction, the same has escaped assessment. It is also urged that the order of re opening of assessment be upheld and the matter be remitted to tribunal for adjudication on merits. In support of aforesaid submissions, reliance has been placed on a decision of the Supreme Court in 'ASSISTANT COMMISSIONER OF INCOME TAX VS. RAJESH JHAVERI STOCK BROKERS (P) LTD.', 291 ITR 500 (SC). 6. On the other hand, learned counsel for the assessee submitted that an agreement has to be a contract in order to attract the applicability of Section 2(45) of the Act. While inviting the attention to clauses 3.1, 3.2 as well as other clauses of the agreement, it is contended that there is no delivery of possession under Section 53....

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....) for development of 20 acres of land near Hebbal flyover belonging to the company on 22.01.2004. This Joint Venture Development entered into on 22.01.04 enables the assessee to claim 28% of the saleable constructed area. The balance 72% of saleable constructed area belongs to the developer. The possession of the land vests with the developer on account of Joint Venture Agreement and on account of construction carried on as per JVA as such there is a transfer of property of 72% of the 20 acres of land from the assessee company to M/s. Godrej Properties and Investments Ltd. to the extent of value of the land transferred, the assessee is liable to capital gains tax for the year in which the joint venture agreement is entered into and possessi....