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2015 (2) TMI 548 - AT - Income TaxValidity of reopening of assessment - assessee has offered capital gain from the sale of immovable property in the assessment year 2008-09 - Held that:- Since the assessee has not filed any return of income for the assessment year under consideration despite having entered into sale agreement for the flat in question, therefore, we are of the view that the Assessing Officer had valid and cogent reason and tangible material to believe that the income chargeable to tax has escaped assessment by reasons of failure on the part of the assessee to furnish truly and fully all material facts necessary for assessment. Accordingly, we do not find any merit or substance in the objection of the assessee against the validity of reopening of assessment Capital asset in relation to the flat to be constructed in the Roshni Co-operative Housing Society - short-term capital gain v/s long-term capital gain - whether transfer by the assessee was vide agreement dated October 21, 2004, or completed only on completion of construction and handing over the possession of the said flat to the purchaser and receipt of balance sale consideration? - Held that:- The assessee acquired the flat in the society on September 8, 2003 and transferred all rights in the said flat including the right to acquire the newly constructed flat vide agreement dated October 21, 2004, therefore, the capital asset has been transferred by the assessee within the period of 36 months from the date of purchase and hence the profit/gain on said asset will be short-term capital gain and not long-term capital gain. The deferment in payment of sale consideration for the reason of enforcement of the terms and conditions of the agreement and right of the parties is not material when there was no subsequent transfer of title either intended or actually taken place. In view of the above discussion and facts and circumstances of the case we hold that the transaction of transfer of capital asset in question was completed vide agreement dated October 21, 2004. It is not the case where in the case of the brother of the assessee was examined for the assessment year 2005-06 and accepted the claim that no capital gain arose in the said assessment year. In fact, there was no return of income filed by the assessee as well as no order of assessment in the case of the brother of the assessee, therefore, mere offering of the capital gain for the assessment year 2008-09 by the brother of the assessee will have no bearing or impact on the assessment in the case of the assessee for the assessment year 2005-06. The learned authorised representative has relied upon the various decisions on the point of deemed transfer under section 2(47)(v), we find that those decisions are not applicable in the peculiar facts of the case in hand. Therefore, we uphold the order of the authorities below on this issue. Applicability of section 50C - Held that:- When the agreement itself is subjected to stamp duty and valuation of the capital asset being transfer then the value determined by the DVO at the request of the assessee is justified at ₹ 1.59 crores. Section 50C is applicable in the case because the agreement itself is subjected to valuation under stamp duty valuation authority. Accordingly, we do not find any merit in the objection of the assessee regarding applicability of section 50C. Levy of interest under sections 234A and 234B is mandatory and consequential and no separate finding in this regard is required. - Appeal decided against assessee.
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