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2012 (12) TMI 699 - AT - Income TaxReopening of assessment - Eligibility of deduction u/s 54/54F - Held that:- On examination of the agreement dated 14.4.2002 and also the affirmation letter dated 21.4.2004, it appears that the AO has arrived at the belief that the capital gains would be assessable in the assessment years 2003-04 to 2005-06. These discussions would show that the AO had enough reasons to draw a belief of escapement of income in these three years. As stated earlier, it cannot be said that the AO had reached firm conclusion on the issue of year of assessment of the capital gains at the time of issuing notice u/s 148, hence dismissal of grounds raised with regard to the validity of the notice issued u/s 148 for the year under consideration. Validity of assessment of capital gains - Selection of year of assessment - Held that:- On a careful reading of the agreement dated 14.4.2002 entered between the assessee and the builder, it is noticed that the said agreement is a development agreement, under which the builder has agreed for the development of the schedule property into multi storied residential building by name "Nikunjam Apartments" - the builder shall commence construction within 30 days from the date of entering the schedule property for the purpose of construction (clause 6.1). Further it is the responsibility of the builder to obtain necessary approvals. It is also mentioned in clause 2 of the agreement that the assessee has executed a registered general power of attorney in favour of the builder on the very same date, i.e., on 14.4.2002 - CIT(A) was right in law in confirming the action of the assessing officer in assessing the capital gain in the assessment year 2003-04, since the development agreement was entered into on 14.4.2002. As assessee already declared capital gains in the assessment years 2005-06 and 2006-07 and hence the sale consideration declared in those years are required to be excluded in the assessment year 2003-04 - the right course for the assessee would be to approach the tax authorities for exclusion of the income, which was wrongly offered by him in the subsequent assessment years Deduction u/s 54/54F - Held that:- The assessee is urging this plea for the first time set aside this matter to the file of the AO with the direction to examine the claim of the assessee - appeal of the assessee as partly allowed for statistical purposes.
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