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TMI Blog2015 (12) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment. It squarely applied to the case and quashed the assessment in the facts and circumstances of the case and in law. 3. Commissioner of Income Tax (Appeals) ought to have held that the income accruing on transfer of long term capital asset was the very subject matter for consideration in his order dated 16.05.2012 and had been given effect by Assessing Officer on 6.7.2012 for the assessment year 2008-09 having reached finality the proceedings u/s.147 initiated with reference to the very same 'long term capital asset was without jurisdiction in the facts and circumstances of the case and in law. 4. Without prejudice to the above, the Commissioner of Income Tax (Appeals) ought to have upheld that it is clearly a case based on 'change of opinion' on the part of the Assessing Officer for recomputing the capital gain on the basis of statement at the time of survey u/s.133A and hence the reassessment is unsustainable in the facts and circumstances of the case and in law." 3. The assessee in its grounds challenges the order of the Commissioner of Income Tax (Appeals) in sustaining the reopening of assessment under section 147 of the Act. Counsel for the assessee at the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the LTCG was arrived at the time of survey based on the Guideline value of the land deemed to have been transferred to the developer. Subsequently, the assessment was reopened u/s 147 of the IT Act, 1961 and a notice u/s 148 of the IT Act, 1961 was issued on 31.12.2012, Which was served on 5/1/2013. In the letter dt. 12/11/2012, Sri Vikram Damodaran, Director of the assessee company states that it was agreed that at the time of survey the capital gains admitted for AY 2008-09 would be revised upwards, and that a revised return would be filed, as directed by the Jt. Commissioner of Income Tax. Accordingly, after the survey, the assessee filed a return in response to the notice under section 148 for the A Y 2008-09 on 31.12.2012 adopting the rate of Rs. 1200/- per sq.ft and returning income of Rs. 12,34,04,230/-. 6. Departmental Representative submits that the subject matter of appeal in the assessment year 2006-07 was the year of taxability. He submits that Commissioner of Income Tax (Appeals) held that the capital gains should be taxed in the year 2008-09 and not in the assessment year 2006-07. He submits that meanwhile there was a survey in the premises of the assessee and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. In the assessment order the Assessing Officer while discussing the facts of the case stated that the case was originally selected for scrutiny u/s 143(3) which was completed on 28.12.2010 assessing the Long Term Capital Gains of Rs. 10,l1,12,800/- on a protective basis. The Long Term Capital Gains arose in this case because of the Joint Development Agreement dated 28.12.2005 between the assessee and MIs. V.R. Nachimuthu (CBE) - a firm. The Long Term Capital Gains was assessed on substantive basis in the Asst. Year 2006-07 based on the observation that the effective date of transfer of the land of the assessee is the date of Joint Development Agreement i.e. 28.12.2005 and hence Long Term Capital Gains is assessable for Asst. Year 2006-07, not 2008-09. The assessee preferred appeal before the CIT(A) and the CIT(A) vide his order dated 16.05.2012 in Appeal No.292/10-11 directed the Assessing Officer to assess the Long Term Capital Gains on substantive basis in the Asst. Year 2008-09 observing that' municipal sanction is the primary criteria in this issue which was obtained only on 19.10.2007. The ITAT confirmed the order of the CIT(A). Appeal has been preferred by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his decision that the transfer had taken place during the previous year relevant to the Asst. Year 2008-09 and therefore, it has to be assessed on a substantive basis in the assessment for the Asst. Year 2008- 09. No appeal was filed by the Revenue against the appellate order for the Asst. Year 2008-09 and the same has reached finality. 8. In the above prevailing state of affairs, based on the survey u/s 133A, conducted on 29.10.2012, the Assessing Officer formed his opinion that the Long Term Capital Gains as was arrived at the time of survey, based on the guideline value of the land deemed to have been transferred to the Developer was to be taken, at a higher value of Rs. 1200/- per sq.ft. and the revised capital gains would be Rs. 12,34,04,230/-. The revision in the Long Term Capital Gains as per the assessment order was based on the guideline value of the land deemed to have been transferred to the Developer which was brought out in the course of Revision Proceedings u/s 133A of the Income Tax Act, 1961. The appellant relied on the decision of the Gujrat High Court in the case of National Dairy Development Board Vs DCIT reported in [2011J CTR (Guj) 302. The argument of the Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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