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2016 (7) TMI 1632 - ITAT BANGALOREValidity of reassessment u/s 147 - assessee has not offered the capital gains in the year of entering of the JDA - transfer of land as per the provisions of section 2(47)(v) as the possession of the said property has been taken by the developer in part performance of contract referred in section 53A of the Transfer of Property Act - HELD THAT:- There is no dispute that the assessee had entered into a JDA dt.12.5.2004 and had not offered any income being capital gain arising from the said JDA, Hon’ble jurisdictional High Court in the case of CIT AND JCIT VERSUS TK. DAYALU [2012 (6) TMI 405 - KARNATAKA HIGH COURT] held that when the possession was handed over to the developer at the time of entering into JDA, it constitutes transfer under Section 2(47)(v) of the Act and consequently the capital gains is to be taxed in the year in which the JDA was entered into. When the assessee did not offer the income arising from transfer of land in question under JDA and there was no original assessment then the reopening based on the decision of Hon’ble jurisdictional High Court as well as facts came to the knowledge of the Assessing Officer that the assessee had entered into JDA is valid and justified. Addition on account of capital gains - HELD THAT:- We find that as per the JDA dt.12.5.2004 the assessee has handed over possession to the developer for construction of the residential project though the said JDA and handing over of the possession does not constitute an outright and absolute sale however it would certainly constitute the transfer of the immovable property as per the provisions of section 2(47)(v) of the Act as held by the Hon’ble jurisdictional High Court in the case of Dr. T.K. Dayalu [2012 (6) TMI 405 - KARNATAKA HIGH COURT]. We do not find any error or illegality so far as the JDA along with handing over of possession constitute transfer of land in question in terms of section 2(47)(v) . The issue of computation of capital gains is set aside to the record of the Assessing Officer with a direction to compute the capital gains by taking consideration for transfer of the land as on the date of JDA as market value of the asset to be received by the assessee.
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