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2017 (8) TMI 1126 - AT - Income TaxReopening of assessment - capital gain addition - transfer of rights in favour of the Developer (JDA) - year of taxability - assessee contended that, in subsequent years he has paid the taxes and therefore, there was no loss to revenue or escapement of income as far as the assessee is concerned. - Held that:- Having gone through the assessment order, we find that the AO, has accepted the assessee’s returned income. For reopening of an assessment even within a period of 4 years, there need to be fresh material for the AO to issue a notice u/s 148. It is not sufficient if the AO believes that there is escapement of income as held by the Hon'ble Supreme Court in the case of Kelvinator India Ltd (2010 (1) TMI 11 - SUPREME COURT OF INDIA). In the case before us, the issue of capital gain was very much before the AO and the capital gain has arisen on account of sale of flats coming to Assessee’s share by virtue of the Development Agreement entered into by the assessee with M/s. JMR Promoters and Builders. Thus, it is clear that the AO while passing the order u/s 147 of the Act had all the material before him to compute the capital gain. The decision of the Hon'ble Supreme Court in the case of Kelvinator India Ltd is, in our opinion, applicable to the facts of the case before us. Therefore, in our opinion, the reopening of the assessment is void as rightly held by the CIT (A). Thus, grounds of appeal No.1 (a) & (b) are rejected. The capital gains would not arise in the A.Y 2009-10 as in the present case also the Development Agreement is dated 12.03.2007 and the HUDA building permissions were obtained in the financial year 2007-08 relevant to the A.Y 2008-09. In view of the same, the Revenue’s grounds of appeal 1(c) and (d) are rejected. Additional ground of appeal raised by the Revenue that in the alternative, the capital gain should be brought to tax in the A.Y 2007-08 is concerned, we are of the opinion that this Tribunal cannot give a direction to the AO to bring to tax any income in the A.Y which is not before us. It is left open to the AO to take remedial action, if any, if the law so permits. The additional grounds of appeal are also thus rejected.
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