9911796707
TMI Blog2014 (1) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... . Property Development Limited and therefore, the return filed by the assessee after a delay of almost 2½ years, cannot be accepted. 2. The assessee is the owner of the land bearing Sy.No.193/2, Kyathamaranahally, Mysore, measuring in all 71874 sq.ft. The assessee entered into a joint development agreement with one M/s.S.I.Property Development Limited, a Company incorporated under the Companies Act. Under the aforesaid agreement, she agreed to sell 92% of the undivided share in the land to the developer and retained 8% of the land for herself. The agreement was executed on 30th June 1994. The total consideration agreed upon was Rs.30 lakhs and 8% of the built area. Rs.10 lakhs was paid as advance. On 27.2.1996, a modified agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or assessment year 2003-04 in which period the assessee claims that capital gains arise was not filed within the due date under Section 139(1) or under Section 139(4) of the Act. It is only after the Assessing Officer initiated proceedings under Section 147 to bring to tax assessee's income from family pension, income from house property and capital gains on sale of assets and notice under Section 148 was issued on 14.9.2005, that the assessee filed the return of income for assessment year 2003-04 on 29.3.2006 (after a delay of almost 2½ years) declaring income which included capital gains of Rs.47,59,091/- in respect of various properties including the aforesaid property. The assessee in the return of income for assessment year 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phase 5 of the project Kingsdale to M/s. Johnson Lifts Ltd., in terms of an arbitration award and also received advance from another party towards one apartment G9 in phase 5 and it obliged to deliver the same to them. 3. It has carried out the foundation work for the phases 5,6 &7.". 3. The aforesaid terms in the agreement makes it clear that on the date the agreement was entered into, the previous builder had put up foundation for constructing seven blocks. He had already completed construction in respect of four blocks and construction was yet to be commenced in blocks 5, 6 & 7. From the aforesaid facts, it is clear that, the assessee had parted with possession to the builder. The builder had put up the foundation and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the Power of Attorney dated 18.12.1996 to show, if at all possession is delivered on that day. A careful examination of the Power of Attorney shows that it came to be executed only for the purpose of selling the apartments constructed on the land. Therefore, it presupposes that construction existed on the land in question on the date the Power of Attorney was executed. Having regard to the magnitude of the construction, it cannot be done overnight. If 96 apartments were ready for sale, it is quite possible that constructions had taken two years. 30.6.1994 is the date of agreement. If on 18.12.1996 they were ready for sale, the finding recorded by the authorities that possession delivered on the date of the agreement is probable. When ..... X X X X Extracts X X X X X X X X Extracts X X X X
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