TaxTMI 
TaxTMI 
2021 (1) TMI 352
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....nces of the appellant's case, having regard to the ratio of the decision of the Hon'ble Supreme Court in the case of GKN DRIVESHAFT reported in 259 ITR 19, which has been explained by several other decisions cited before him. 3. The learned CIT[A] failed to appreciate that the reasons which are to be mentioned as recorded by the learned A.O. in format meant for obtaining approval of the learned JC for issuance of notice u/s. 148 of the Act, without recording the reasons elsewhere in the file other than in the format would not comply with the requirement of mandatorily requiring the provisions of section 148[2] of the Act and consequently, the impugned assessment is not valid in law. 4. The learned CIT[A] has erred that the agreement dated 07/06/2005, which is not engrossed on the requisite stamp paper and not registered in accordance with the law is a enforceable contract and further in holding the same is a valid contract to obtain the benefits of section 53A of the Transfer of Property Act, although the said agreement was not registered. 5. Without prejudice to the above, the learned CT[A] has failed to appreciate that the agreement dated 07/06/....
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....ct, resulting into a transfer attracting capital gains exigible to tax during the previous year relevant to the assessment year under appeal. 10.1 The authorities below failed to appreciate to invoke section 53A of the Transfer of Property Act, there should be a valid contract in writing which is capable of being enforced and in the instant case, the agreement entered into is not a contract enforceable in law and is subject to several "ifs and Buts" and consequently invoking the provisions of section 2[47][v] read with section 53A is misconceived and the resultant addition is required to be deleted. 11. Without prejudice to the above, the CIT[A] ought to have taken atleast a sum of Rs. 1,00,000 per cent as FMV of the property as on 01/04/1981 and indexed the cost for computing the capital gains as against the sum of Rs. 35,000 per cent taken by him. 12. The A.O. failed to appreciate the agreement brought only an Association of Person [AOP] in existence and no amount is credited to the account of the appellant in the books of the AOP and consequently section 45[3] of the Act has no application and on that footing the amount specified in the agreement as th....
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....been complied with and consequently, the reassessment requires to be cancelled. 3. The learned CIT[A] is not justified in sustaining the assessment made by the learned A.O. u/s. 143[3] rws 147 dated 28/02/2014 in sustaining the reopening the assessment for the aforesaid assessment year in as much as there was no income escaping assessment, as the assessment proceedings are pending adjudication before the Hon'ble CIT[Appeals] and therefore, the order of assessment passed by the learned A.O. invoking the provisions of sec. 147 of the Act deserves to be cancelled. 4. The learned CIT[A] failed to appreciate that he has already made an assessment and such assessment is pending adjudication in appeal and such appellate proceedings before him are continuation of assessment proceedings and therefore, during pendency of assessment proceedings, he could not have issued a notice u/s. 148 of the Act and therefore, the notice issued u/s. 148 of the Act is illegal and consequently, the reassessment founded on such notice, which is illegal and requires to be cancelled. 5. The learned CIT[A] failed to appreciate that the A.O. had not passed a speaking order disposing....
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....ed by the appellant there was no obligation to file an estimate and pay advance tax and consequently, the very levy of interest is bad in law and requires to be cancelled. 10. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs." 2. It is submitted that, originally, Division bench of this Tribunal heard these appeals on 08/11/2017. However, due to difference of opinion that arose between Hon'ble Accountant Member and Hon'ble Judicial Member on certain issues, the matter was referred to third member by Hon'ble President ITAT, under section 255(4) of the Act. 2.1. The issues on which difference of opinion arose between Hon'ble Accountant Member and Hon'ble Judicial Member, has been summed up by Hon'ble Third Member in his order as under as follows: 1. Whether the order of assessment passed under section 147 of the act on 28/12/2012 was without furnishing reasons recorded for initiating....
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.... no such mandate is laid down by the Hon'ble High Court or Karnataka that if the reasons recorded is made prior to furnishing return or income the reasons recorded should not be furnished unless and until the assessee makes another request for furnishing reasons recorded. In my opinion, it is not correct to say that any sequence of dates has been laid out by the Hon'ble Supreme Court in its decision rendered in the case of GKN Drive Shafts Ltd. (supra) and the ratio of the decision is that the reasons recorded have to be furnished if demanded by the assessee, provided the assessee has filed return in response to notice u/s. 148 of the Act. In that view of the matter, I agree with the conclusions of the ld. JM." 3.3. We note that, Hon'ble Third Member concurred with the view taken by Hon'ble Judicial Member, who observed that, order dated 28/02/2014 passed by Ld. AO under section 143(3) read with 147 of the Act, without furnishing reasons recorded for initiating proceedings for reassessment under section 147 of the Act is void and of no effect. Respectfully following the same, we allow Grounds 2, 3, 6 & 7.4. Grounds 4, 5, 10, 10.1, 14 & 15 are in respect of, wh....
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.... the parties. There has been a complete change of parties as well as the terms of agreement in the MoU dated 15.4.2006 as well as 7.3.2008, in as much as the adjacent property was also considered for the purpose of joint development. Even MoU dated 15.4.2006 were substantially noted in the registered MoU dated 7.3.2008. Thus the agreement dated 7.6.2005 stood extinguished consequent to the later MoU dated 15.4.2006 between different parties and on different terms and the MoU dated 15.4.2000-also stood extinguished consequent to revised MoU dated 7.3.2008 which was ultimately registered on 4.7.2008-.Thus the provisions of Sec. 47 of the Registration Act, 1908 cannot be applied to the facts of the present case. I agree with the ld. Counsel for the Assessee that the provisions of Sec. 62 of the Contract Act, 1872 which contains principle of Novation of contracts is applicable in the present case and therefore the JD,-'A, dated 7.6.2005 and the MOU dated 15.4.2006 stood extinguished. In this regard as rightly pointed out, the terms of the MoU dated 7.3.2008 which was the ultimate bargain between the parties with regard to the extent of property that was subject matter of the JDA, t....
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....n for lower authorities to compute the capital gains arising out of the alleged transfer on 07.06.2005, yet for completeness for record. we would like to record, that the finding recorded by the Commissioner (Appeal) that on account of grant of licence to construct dated 06.03.2006. the position said to have been handed a work to the developer, was a incorrect finding of fact by the local authority. 19.1 In our view no transfer can take place within the meaning of section 2(47) of the act on the basis of the construction agreement/development agreement. as the said agreement failure to comply the provisions of the Transfer of Property Act Registration Act And Stamp Duty Act further reliance of the revenue on the judgment of T.K. Dayalu was misplaced in the present set of facts and after the pronouncement of the judgment by the Hon'ble Supreme Court in matter of Balbir Singh (supra), as no possession was given for the purposes of Transfer Of Property Act in the assessment year under consideration. Therefore there was no justification for the authorities below to compute the capital gain by assuming that the transfer has taken place on 7 of June 2005. Further, the AO, in....
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....as been held to be consequential by Hon'ble Judicial Member in para 20 as under: "20. These grounds raised by the assessee became academic/redundant on account of our finding of fact recorded herein above therefore we do not deem it appropriate to adjudicating these grounds raised in the present appeal" Respectfully following the same, we hold this ground to be consequential in nature. 8. Ground No. 1 and 17 have been submitted to be general in nature. In the result, appeal filed by assessee in ITA No. 1269 stands allowed. ITA no. 1270/Bang/2016 9. Ground No. 2-5 are in respect of challenging validity of reassessment order dated 28/02/2014. 9.1. We have perused the order passed by Hon'ble Judicial Member as well as the descent order by Hon'ble Accountant Member. We note that these issues are not subject matter of the descent order. Therefore, view of Hon'ble Judicial Member has to be adopted as it is as under. 9.2. Hon'ble Judicial Member has decided these issues in para 14.2 of his order dated 22/01/2018 as under: "14.2 We have heard the rival contentions and perused the record. First of all, in our view, there is no prohi....