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2022 (8) TMI 1265 - AT - Income TaxComputation of capital gain on transfer of property - Adoption of sales consideration as reflected in form No.26AS - HELD THAT:- Assessee made it clear in the written submission that the sale consideration to be considered at Rs.18,54,25,000/- as per amount reflected in form No.26AS relating to assessment year 2014-15. In our opinion, the argument of assessee’s counsel is to be verified with reference to the form No.26AS filed before us. Accordingly, we direct the AO to consider sales consideration as reflected in form No.26AS relating to assessment year 2014-15 for the purpose of computation of capital gain on transfer of property at Pujanahalli, Devanahalli village, Bengaluru district. This ground of the appeal of the assessee is allowed. No claim by the assessee in the original return of income filed - Disallowance towards the development charges paid to Bengaluru Development Authority and brokerage charges paid while computing the capital gain in the hands of the assessee - AO disallowed this claim of the assessee on the reason that this has not been claimed in the original return of income filed by the assessee - CIT(A) confirmed the disallowance - HELD THAT:- As held by Hon’ble Supreme Court in the case of Goetz (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] wherein the assessee filed the return of income for the relevant assessment year without claiming a particular deduction, later on, it sought to claim the deduction by way of a letter addressed to the AO the deduction disallowed by the AO on the ground that there was no provision under the Act to make amendment in the return of income by making an application at the assessment stage without revising the return of income. However, the same is allowed by the Hon’ble Supreme Court. Being so, the Tribunal being the second appellate authority in this case and there is no restriction on the power of Tribunal to entertain such claim. Accordingly, we direct the AO to allow this claim as claimed by assessee. This ground of appeal of assessee is allowed. Non-granting of deduction u/s 54F in respect of investment in purchase of a residential building in Newton MA, USA - CIT-A observed that the assessee not claimed exemption for investment in house property located in USA in the return of income - HELD THAT:- Non-claiming of deduction in the return of income filed by the assessee, in our opinion, judgement of Hon’ble Supreme Court in the case of Goetz (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] applied as the Tribunal is not precluded in entertaining the claim of the assessee before the appellate proceedings. Accordingly, we allow the claim of assessee u/s 54F of the Act in respect of investment made in property situated in Newton MA, USA. This ground of appeal of the assessee is allowed. Long-term capital gain arising out of the JDA - whether it is assessable in the year in which the development agreement entered into or in the relevant subsequent year in which the area duly developed and constructed giving the share of the assessee and land ownership has been handed over to the assessee - HELD THAT:- In the present case, there is no transfer of land per say vide JDA dated 31.1.2014 and developer only got right to construct and the ownership of property as such does not get transferred to him to the developer on execution of JDA. The assessee has to receive Rs.7.5 crores as refundable deposit, out of this assessee has received in this assessment year an amount of Rs.3.75 crores and balance Rs.3.25 crores to be received by assessee within 4 months from the date of execution of JDA dated 31.1.2014 and another balance Rs.50 lakhs shall be to the first party at the time of handing over the superbuilt up area of 10,337 sq.ft. to the owners. Being so, the capital gains as a result of this JDA can arise only at point of receipt of consideration by the assessee and not on the date of JDA. More so, in the absence of any act in furtherance of contract by the developer, it cannot be held that transfer did took place u/s 2(47)(v) of the Act in the assessment year under consideration. Being so, we are of the opinion that capital gain arising out of the impugned JDA dated 31.1.2014 to be taxed in the assessment year 2015-16 only and not in assessment year 2014-15. More so, it is already subject to tax in the assessment year 2015-16 and cannot be brought to tax in the assessment year 2014-15, which amounts to double taxation. Accordingly, this ground of appeal of assessee is allowed. Deduction u/s 54 for assessment year 2015-16 in respect of assessee’s share of residential apartment under JDA dated 31.1.2014 - Since this ground is not related to assessment year 2014- 15, we are declined to entertain these grounds in the assessment year 2014-15. However, the assessee is at liberty to take appropriate remedy in the right assessment year, if so advised. These grounds are disposed of accordingly.
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