AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 118
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....ring the previous year relevant to assessment year 2008-09 and as such any capital gain thereon cannot be taxed in assessment year 2010-11. 4. The Ld. CIT (A) is not justified in approving the impugned assessment order merely because the appellant has not filed his return of income for assessment year 2008-09. 5. The Ld. CIT (A) has not properly appreciate facts of the case and has dismissed the present appeal in a partition manner." 3. The brief facts of the case, as emanating from the record, are: The assessee is an individual and derives income from salary. For the year under consideration, the assessee did not file the return of income. On the basis of the information available with the Assessing Officer ("AO") in AIR, it was observed that the assessee along with 17 other co-owners had sold immovable property, however, the profit arising in this transaction was not offered for tax. Accordingly, the AO issued notices under section 148 of the Act on 31/03/2017, and proceedings under section 147 of the Act were initiated. Subsequently, statutory notice under section 142(1) of the Act was issued and served on the assessee requesting to submit the details in connection with the....
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....eement and even the developer was given the right to sell the constructive area vide the Development Agreement. The learned AR further submitted that entitling the developer to sell the constructive area further is only possible once the possession is given. 6. On the contrary, the learned Departmental Representative ("learned DR") submitted that under the Development Agreement, the owner had the right to get back the property if the payment terms are not fulfilled, and therefore, the Development Agreement was a contingent contract. The learned DR further submitted that the possession was handed over to the developer on the date of the sale deed i.e. 30/03/2010, and therefore the transfer of property took place in the year under consideration. 7. We have considered the submissions of both sides and perused the material available on record. In the present case, it is undisputed that the assessee did not file his return of income. On the basis of the information available in AIR that the assessee along with 17 other co-owners has sold immovable property and since the assessee has not filed any return of income, therefore, no income under the head "capital gains" has been offered fo....
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....gs under section 147 of the Act in the facts of the present case. Accordingly, grounds no.1 and 2 raised in assessee's appeal are dismissed. 9. On merits, the main issue for consideration is the year in which the transfer of immovable property has taken place. As is evident from the material available on record, the assessee along with 17 other co-owners/family members entered into Development Agreement dated 18/01/2008, with Shri Shivraj Komal Singh, Builder/Developer, in respect of property, i.e. agriculture land situated at village Titwala, Tehsil office Kalyan, District Thane, in Dombivali Municipal Corporation for a consideration of Rs.34,56,000. As per the Revenue, an Agreement for Sale was entered amongst the aforesaid parties on 30/03/2010, therefore, the capital gains arose in the assessment year under consideration, and since the market value of the land was Rs.5,11,93,000, therefore the same should be adopted as per section 50C of the Act for computing capital gains in the hands of the assessee. 10. Before proceeding further, it is relevant to note the meaning of the term "transfer', which is defined in section 2(47) of the Act, in relation to a capital asset. Section ....
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....sset. We are of the considered view that the term "any right" used in the aforesaid clause is wide enough to even include the development rights in the plot of land. In the present case, it has not been disputed that the assessee has transferred the development rights in the plot of land to the builder/developer. It is the plea of the assessee that the possession of the land was also handed over to the builder/developer alongwith the development rights. Therefore, even though the Agreement for Sale was executed on 30/03/2010, the property was already transferred on 18/01/2008 at the time of execution of the Development Agreement, and thus, for all intent and purpose the land was transferred in the assessment year 2008-09. 12. We find that in Sanjeev Lal v/s CIT, in [2014] 365 ITR 389 (SC), the Hon'ble Supreme Court, while dealing with the facts, wherein the assessee claimed the benefit under section 54 of the Act in respect of the capital gains arising from transfer of property vide sale deed registered on 24/09/2004, while the agreement to sell was executed on 27/09/2002, considered the question as to whether the date on which agreement to sell was executed could be considered th....
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....ri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appellants. By virtue of an order passed in the suit filed by Shri Ranjeet Lal, the appellants were restrained from dealing with the said residential house and a law-abiding citizen cannot be expected to violate the direction of a court by executing a sale deed in favour of a third party while being restrained from doing so. In the circumstances, for a justifiable reason, which was not within the control of the appellants, they could not execute the sale deed and the sale deed had been registered only on 24th September, 2004, after the suit filed by Shri Ranjeet Lal, challenging the validity of the Will, had been dismissed. In the light of the aforestated facts and in view of the definition of the term "transfer", one can come to a conclusion that some right in respect of the capital asset in question had been transferred in favour of the vendee and therefore, some right which the appellants had, in respect of the capital asset in question, had been extinguished because after execution of the agreement to sell it was n....
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....other co-owners handed over open and physical possession of the aforesaid land to the builder/developer. In the said Development Agreement, it was also agreed that the entire responsibility for the protection, use, and occupation of the said land is of the builder/developer. It was further agreed that the builder/developer has the right to sell the constructive area of the planned building on the land which includes shop/flats for a reasonable price and the builder/developer has every right to receive the prize consideration. In this regard, it is relevant to note clauses No. 12 and 13 of the Development Agreement, which reads as under:- "12) The Second Party has handed over open and physical possession of this landed property to the First Party as Developers for the purpose of carrying measurements and other works today. Hereinafter, it is/ will be the entire responsibility of the First Party for protection, use and occupation and of the said land. 13) The First Party has right to sell constructive area of the planned building on the land which include shops/ flats and shops etc. for a reasonable price and to search customers for the same, enter into agreement with them and ex....