TaxTMI 
TaxTMI 
2021 (9) TMI 860
X X X X Extracts X X X X
X X X X Extracts X X X X
.... accordingly. 3) On the facts and circumstances of the case and in law the appellant-assessee also disputes the year of the taxation of LTCG as A.Y. 2007-08 which year is not correct. It be held accordingly. 4) On the facts and circumstances of the case and in law the filing of the appeal is delayed. The appeal was decided by the Ld. CIT(A) vide his order dt. 07.03.2014. The husband of the assessee expired on 05.01.2014. She was in mourning. The detailed affidavit with prayer to condone delay will be filed later. The assessee-appellant therefore requests to condone the delay and admit appeal for adjudication in accordance with the provisions of law. 5) The appellant craves/leave to add, amend or alter any of the above grounds of appeal." 2. At the very outset, the Ld. Counsel for the assessee submitted that there is a delay of 121 days in filing the appeal for which he has filed an affidavit along with condonation petition for delay. The contentions of the assessee is that the delay was caused because of factors which were not attributable to any direct conduct or mala-fide motive of the assessee. Rather, they were all circumstantial and unavoidable in nature. The assessee i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....djudication. 5. Having heard the submissions of both the parties herein, we find the additional grounds raised by the assessee are legal in nature, hence, the same is admitted in line with the decision of Hon'ble Supreme court of India in the case of NTPC Ltd. Vs. CIT (supra.). 6. That starting his arguments with regard to the first additional ground, the Ld. Counsel for the assessee submitted that in this case, the assessment has been completed u/s.144 of the Income Tax Act, 1961 (hereinafter referred to as "the Act‟) on the basis of incriminating materials unearthed at the time of search action in the premises of a third party. That it is settled position of law whenever incriminating materials are found in consequent of search proceedings in the premises of a third party in relation to the assessee, in such scenario, assessment for the assessee should be completed u/s.153C of the Act and not u/s.144 of the Act. In this case, the Assessing Officer resorted to best judgment assessment u/s.144(1)(a) of the Act wherein "if any person fails to make the return required under sub section (1) of section 139 and has not made a return or a revised return under sub section (4) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of Section 50C of the Act in respect of development agreement entered into by the assessee. 10. Briefly once again the facts of the present case are that the assessee is an individual and basically a housewife from agriculturist family. The assessee had not filed any return of income for the year under appeal and that she had entered into a development agreement with Shri Abhijit D. Nagpure on 18.04.2006 for development of her immovable property at Survey No.14/1A/3, Anandwalli for Rs. 36 Lacs. There was search action u/s.132 of the Act against one Shri Bhupendra Shah, Proprietor of M/s. Bhavik Developers, Nashik on 08.02.2008. From such seized documents, the aforesaid transactions of the assessee entering into development agreement with Shri Nagpure was evident. That Shri Nagpure is an employee of M/s. Bhavik Developers, Proprietor of Shri Bhupendra S. Shah. The Assessing Officer examined development agreement which was registered with the Sub-registrar, Nashik-3 and found that as per the said development agreement, more particularly as per Clause-4, the assessee had given the possession of the land/property to the developer i.e. Shri Abhijit Deelip Nagpure on 18.04.2006. The A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....him on the date of the registration of the development agreement between him and the assessee. Thereafter, the Ld. CIT(Appeal) at Para 6.3, 6.4 has brought out reasons for not accepting the claim of the assessee that as per reasoning provided therein, the Ld. CIT(Appeal) came to the conclusion that the transfer of possession of the land was given to Shri Nagpure on the very date of registration of the development agreement and Shri Abhijit D Nagpure had also furnished a ledger account of the assessee in the books of account of M/s. Bhavik Developers, Prop. Shri Bhupendra S. Shah and bank statement of M/s. Bhavik Developers in Pimpalgaon Merchants Co-op Bank Ltd. which showed the details of payment of all cheques during the assessment year 2007-08 only. 12.3 The Ld. CIT(Appeal) referred the matter also to DVO for proper valuation who had valued the property at Rs. 64,50,000/-. In the valuation report dated30.04.2011, the valuation officer had also given complete details of the various objections raised by the assessee and the reply furnished to the assessee with regard to the said objections. After taking into consideration, all the relevant facts and objections of the assessee, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsibility of the developer to protect the said property, the possession of the said property as well as to protect the ownership rights of the owner/second party (assessee) in the said property...................... and to perform all such acts................... for the purposes of protecting the possession of the property and ownership rights of the second party vested therein. Furthermore, Clause 4 of the said development agreement which deals with possession of the property on the basis of which addition of capital gain has been initiated by Sub-ordinate Authorities u/s.50C of the Act, it clearly states that the owner i.e. the assessee has handed over the actual possession of the said property to the developer for the purposes of carrying out development work on the said property on license basis. That it is also mentioned, the owner has given the developer the right to develop the property and undertake construction on the said property. 16. We find this clause does not say anything about any change of ownership from the assessee to the developer. There is also no mention of any registered documents with the concerned authority being filed to suggest that ownership has been t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case. We have also examined that Clause 4 of the said development agreement which talks of transfer of possession there also, nothing suggests even in form of whisper that there has been any change of ownership from the assessee in favour of the developer. Rather on license basis, the developer had been authorized to carry out development work on the said property. 19. The Ld. AR for the assessee has also cited the judgment of the Hon‟ble Karnataka High Court in the case of V.S. Chandrashekhar Vs. ACIT, ITA No.70/2015 dated 02.02.2021 wherein at Para 11 of the said judgment, the Hon‟ble High Court has discussed the circumstances of applicability of Section 50C of the Act. The relevant portion is extracted as follows: "11. Thus, from perusal of the aforesaid provisions, it is axiomatic that explanation 1 to Section 2(47) uses the term 'immovable property' whereas, Section 50C uses the expression 'land' instead of immovable property. It is also pertinent to mention that wherever the legislature intended to expand the meaning of the land to include rights or interests in land, it has said so specifically viz., Section 35(1)(a), Section 54G(1), Section 54GA(1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e land. We have gone through the submissions made in this regard by the assessee before the Ld. CIT(Appeal) and other relevant records/documents and we find that as like the Assessing Officer even the assessee has not brought out any cogent reason or any logical basis for such determination of the fair market value. Alternatively, it was prayed by the Ld. AR for the assessee that the issue may be restore to the file of the Assessing Officer for fresh determination of the fair market value and that the assessee may be given another opportunity in this regard. 23. The Ld. DR did not raise any objection with regard to the submissions put forth by the Ld. AR of the assessee. 24. Having heard the parties, we are of the considered view, in the interest of justice that the fair market value of the land has to be adopted on a reasonable basis and it must be reflected from the order of the Assessing Officer itself. Reasons behind such determination of the fair market value should be clearly spelled out in the order. Therefore, we set aside the order of the Ld. CIT(Appeal) on this issue and restore the same to the file of the Assessing Officer for adjudication as per law complying with the....