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2015 (1) TMI 651 - AT - Income TaxDetermination of the assessment year in which the Capital gains is assessable - whether date of MOU cannot be considered as date of transfer? - Held that:- The finding given by the tax authorities that the assessee had given possession of the property upon entering into the MOU has not been controverted by the assessee. Further, it is a fact that the assessees have been receiving the monetary portion of the consideration in instalments and the said fact was also not denied by the assessees, though the developer did not give the instalments at the agreed point of time at the agreed amount. We notice that the tax authorities have made reference to sec. 2(47)(v) of the Act and the assessees are disputing about the applicability of that section to them. However, in view of the decision of Hon’ble jurisdictional Bombay High Court rendered in the case of Chaturbhuj Dwarkadas Kapadia (2003 (2) TMI 62 - BOMBAY High Court), we are inclined to reject the said contentions of the assessee. Even otherwise, we notice that the assessee’s case would also fall u/s 2(47)(vi) of the Act. Hence, we are of the view that the Ld CIT(A) was justified in upholding the action of the assessing officer in assessing the Capital gain in assessment year 2000-01. - Decided in favour of assessee. Validity of reassessment proceedings - Held that:- Notice from the order of the Ld CIT(A) that the first appellate authority has given a finding that the assessing officer has explicitly discussed about assessing Capital gain in the assessment order relating to AY 2004-05 and has also recorded the same reasons before issuing notice u/s 148 of the Act for AY 2000-01. Before us, the assessee could not produce any material to contradict the findings given by the Ld CIT(A). Accordingly we do not find any merit in the grounds relating to validity of reassessment and accordingly dismiss them. - Decided against assessee. Determination of sale consideration - Held that:- Set aside the order of Ld CIT(A) on this issue passed in the hands of both the assessees and restore the matter to the file of the assessing officer with the direction to compute the sale consideration by following the decision rendered in the case of G. Raghuram [ 2010 (4) TMI 712 - ITAT, HYDERABAD] wherein held the Real consideration received by the assessee in lieu of the land foregone by him is only the cost of construction of proposed building to the extent of which falls to the assessee in the ultimately constructed area and not the market value of such share of constructed area which may be available after the completion of construction.- Decided in favour of assessee for statistical purposes. Determination of FMV of the property as on 1.4.1981 - Held that:- AO did not examine the valuation report obtained by the assessee from a Registered Valuer. In our view, the AO should have examined the same and should have given reasons for not accepting the same. In the absence of the same, we are of the view that this issue also requires fresh examination at the end of the assessing officer.- Decided in favour of assessee for statistical purposes. Deduction claimed u/s 54 - Held that:- As decided in Jatinder Kumar Madan Vs. ITO [2012 (5) TMI 316 - ITAT MUMBAI] the flats obtained under development agreement is eligible for deduction u/s 54 of the Act if the new flat had been constructed within a period of 3 years from the date of transfer. Thus, we notice that the view entertained by the tax authorities have been rejected by the Tribunal. Hence, this issue also requires examination at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) on this issue passed in the hands of both the assessees and restore the same to the file of the AO with the direction to examine the same afresh by duly considering the decision rendered in the case of Jatinder Kumar Madan (supra). - Decided in favour of assessee for statistical purposes.
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