Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Mr. Kailash Chand Gupta Hyderabad Versus Commissioner of Income Tax (Central) Hyderabad

2015 (7) TMI 72 - ITAT HYDERABAD

Revision u/s 263 - order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee - Registration of Development Agreement - Explanation w.r.t Exemption u/s 54F - Held that:- On the basis of this explanation offered in respect of each and every issue, it was contended on behalf of the assessee before the Ld. CIT that it was not the case of assessments having been completed by the A.O. without making proper and adequate enquiries as required in t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iry which A.O. ought to have made in the facts and circumstances of the case but has failed to do. We, therefore, fully agree with the stand of the assessee that the impugned order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee and without applying his mind. In our opinion, this failure of the Ld. CIT, however, does not constitute any legal infirmity to make the order passed by him under section 263 invalid or void abinitio as sought .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - ITA Nos.1075 to 1077/Hyd/2014 - Dated:- 17-6-2015 - Shri B. Ramakotaiah & Smt.Asha Vijayaraghavan, JJ. For the Petitioner : Shri Sanjay Kumar For the Respondent: Shri B.V. Gopinath ORDER Per Smt. Asha Vijayaraghavan, J.M. This appeal is preferred by the assessee against the order of the CIT (Central), Hyderabad dated 27.03.2014 relat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

found and seized relating to the assessee. Accordingly notice u/s 153C was issued to the assessee. 4. The facts are as follows: A.Y 2005-06 5. Assessee along with fiver others executed a Development Agreement cum GPA on 01-06-2004 for development of 2915 Sq Yds. (3085 Sq Yds. Minus 175 Sq Yds. Surrendered to Municipality) of land at Begumpet, Hyderabad. Out of this land, the assessee's share works out to 659 Sq Yds. As per the agreement cum GPA for foregoing his land, assessee received flat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

PA was on 1.6.2004 (FY 2004-05) relevant of A.Y 2005-06), there was transfer during A.Y 2005-06 and capital gains needs to be taxed in A.Y 2005-06. This fact has not been verified during assessment proceedings. AY 2006-07 6. From the computation of the assessee for the AY 2006-07, an amount of ₹ 34,77,500/- (Calculated @650 per Sq Foot cost of construction x 5350 Sq feet area received) was shown as received for surrendering 362.55 Sq. Yds of land to the buiider. Assessee sold Flat No. 305 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pleted by adopting the amount offered by the assessee. This fact has not been verified during the assessment proceedings. A. Y.2007-08 7. The assessee was allowed exemption u/s 54F for an amount of ₹ 13,91,000/- in respect of Flat No. 205 in the FY 2004-05. This Flat No. 205 was subsequently gifted by the assessee to Srnt. Kiran Gupta on 20-02-2007 which indicate that the assessee did not hold the property for the period prescribed u/s 54F. Consequently, the amount of ₹ 13,91,000/- c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oned assessment years shall not be revised u/s.263 of the LT.Act. In response to the notices the Authorised Representative of the assessee filed written submissions as under: A.Y 2005-06 9. Assessees's submission dated 24.03.2014 - Registration of Development Agreement: You may note that the endorsement of registration behind the development agreement (as per the seized material on page 352 of Annexure A/EBPL/OFF/01) is very much there. This information was very much avat'lable and consi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Y.2006-07 10. Assessees's submission dated 24.03.2014 Registration of Development Agreement: You may note that the endorsement of registration behind the development agreement (as per the seized material on page 352 of Annexure A/EBPL/OFF/01) is very much there. This information was very much available and constdered by A.O already. Explanation with respect to rate adopted for transfer of Land: With regard to your calculation in the notice, on the basis of cost assigned to undivided share of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

You may note thet; after construction the land is only an undivided portion and the sale is always made not on what land comes as undivided shsre, but on the basis of oudt-up area. Hence, just for giving the break-up as requested by the department; the cost of building was taken on the basis of Construction cost No one would sell a building at cost of construction. The flat was sold for ₹ 1355.14/- per sft (Rs. 1355.14/per sq.ft (Rs.1355.14 *2140 SFT = ₹ 29,00,000). You may note that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of construction (5350 sq. ft* ₹ 650/- per sqft) of buht-up area developed and received by the assessee in exchange of land given for development. All these facts have been considered by the A. 0 and have been clarified already and all the above workings were given in detail. (iii) A. Y.2007-08 11. Assessee s submission dated 24.03.2014 Registration of Development Agreement: You may note that the endorsement of registration behind the development agreement (as per the seized material on pa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ee's wife is not "trenster" and the exemption claimed for the same holds good. This is only a family srrsnqement and does not constitute sale of capital asset Explanation w.r.t revision u/s 263 of I. TAct; 1961: In this regard we would like to affirm that all the above facts were considered by the A.O in past for which explanations were sought by him. We had provided valid explenettons for all the queries raised and they were considered by the A.O correctly. Hence; the order given .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uiries which he is legally required to make and decide the issues without making such enquiries then the order of the Assessing Officer would be erroneous in Law. This was so held in the case of Desai Brothers Ltd. Vs. DCIT, Pune Tribunal. Similar view was also taken by many other Tribunals and High Courts wherein it was held that on failure of Assessing Officer to make enquiry as expected, Commissioner was justified in invoking provision of Section 263 because the orders passed as such by the A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the A.O. should have made further enquiries before accepting the statements made by the assessee in his return. It is incumbent on the A.O. to investigate the facts stated in the return when circumstances would make such an enquiry prudent. The word erroneous in 5ec.263 of Income-tax Act, 1961 includes cases where there has been failure to make necessary enquiries. Considering the above, the order passed by Assessing Officer without examining the issues narrated above are definitely erroneous an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e . 13. Aggrieved, assessee has filed appeal before us for A.Ys 2005-06 to 2007-08. 14. We heard both the parties and perused the material on record. We find that the Coordinate Bench of the Hyderabad Bench has decided similar issue in the case of Mr. Pramod Kumar Gupta, Hyderabad in ITA No.1102 & 1103/Hyd/2014 vide order dated 20th February, 2015. The relevant portion at Para 7 is reproduced below: 7. As is clearly evident from the common ground raised by the assessee in both the appeals, a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he said notices, a detailed submission was filed by the assessee explaining as to how the issues raised by the Ld. CIT in the notices issued under section 263 were not relevant for the purpose of completing the assessments in the case of the assessee for all the four years under consideration. On the basis of this explanation offered in respect of each and every issue, it was contended on behalf of the assessee before the Ld. CIT that it was not the case of assessments having been completed by t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ances of the case. He has not pointed out specifically even a single enquiry which A.O. ought to have made in the facts and circumstances of the case but has failed to do. We, therefore, fully agree with the stand of the assessee that the impugned order has been passed by the Ld. CIT under section 263 without considering the explanation offered by the assessee and without applying his mind. In our opinion, this failure of the Ld. CIT, however, does not constitute any legal infirmity to make the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ind. Needless to observe that the Ld. CIT(A) shall pass well discussed and well reasoned order after giving proper and sufficient opportunity of being heard to the assessee. 15. Respectfully following the Coordinate Bench Decision, the appeals of assessee are treated as allowed for statistical purposes. Sd/- (Asha Vijayaraghavan) Judicial Member ITA Nos.1075 to 1077/Hyd/2014 (Assessment years: 2005-06 to 2007-08) I do not agree with my sister s draft order fully as it contains not only certain e .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version