TMI Blog2015 (12) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the decision relied on by the Authorized Representative are not relevant to the facts of the case. The submissions of the learned Authorized Representative regarding change of opinion are rejected and the 148 proceedings are upheld - Decided against assessee - ITA No. 1695/Mds/2015 - - - Dated:- 27-11-2015 - Chandra Poojari, AM And Challa Nagendra Prasad, JM For the Appellant : Mr K Raghu, CA For the Respondent : Dr U Anjaneyulu, CIT DR ORDER Per Challa Nagendra Prasad, JM This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-I, Coimbatore dated 21.05.2015 for the assessment year 2008-09. 2. The assessee raised the following grounds of appeal:- 1. Commissioner of Income Tax (Appeals) has grossly erred in rejecting the claim of the assessee that impugned proceedings of Assessing Officer was in excess of his jurisdiction u/s.147 in the facts and circumstances of the case and in law. 2. Commissioner of Income Tax (Appeals) ought to have held on a reading of third proviso under section 147: Provided also that Assessing Officer may assess or reassess such income other than the income involving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement (JDA)i.e. 28/12/2005 and' hence LTCG is assessable for AY' 2006-07, not 2008-09. The assessee preferred appeal before the CIT(A). The CIT(A) vide order dated 16.5.2012 directed the Assessing Officer to assess the LTCG on substantive basis in the A.Y. 2008-09 observing that Municipal sanction is the primary criterion in this issue, which was obtained only on 19/10/2007. The Tribunal confirmed the order of the CIT(A). Appeal has been preferred by the Department for the A.Y. 2006-07 against the order of the Tribunal treating the A.Y. 2008-09 as the substantive year for computation of LTCG for. However, no appeal was preferred against the decision of the CIT(A) by the Department for the assessment year 2008-09, it being a protective assessment and appeal was already filed against the Tribunal s decision for AY 2006-07. Hence, for this purpose, Long Term Capital Gain on sale of land emanated during the FY 2007-08 upon obtaining Municipal sanction for this joint venture project and thus, this assessment for AY 2008-09 is made substantively. 5. A survey under section 133A of the IT Act, 1961 was conducted in the premises of the assessee on 29.10.2012. During the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately considered the issue whether the reopening of assessment is valid or not in the order with reference to the contentions of the assessee and the Assessing Officer and held that reopening of assessment is valid. While holding so, Commissioner of Income Tax (Appeals) held as under:- 5. I have gone through the submissions made by the appellant and also the order of the Assessing Officer. The Assessing Officer in his order has stated at Para 3 A survey u/s 133A of the IT Act 1961 was conducted in the premises of the assessee on 29.10.2012. During the course of survey. the assessee admitted the sale consideration at a higher value of ₹ 1200/- per square feet amounting to ₹ 12,34, 04,230/-. This was based on the guideline value of the land deemed to have been transferred to the developer. Subsequently the assessment was re-opened 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. 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 ₹ 1200/- per sq.ft. and returning income of ₹ 12,34,04,230/-. The Authorized R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant, in respect of vacant land of about 4.20 acres, given for development for residential complex, in terms of the Joint Development Agreement dated 28.12.2005 entered into with M/s. V.R. Nachimuthu (CBE), a firm. The appellant admitted in, the regular return filed, Long Term Capital Gains arising under the JDA for the Asst. Year 2008-09 at ₹ 10,l1,12,800/-. Under the JDA, the appellant was entitled to 35% of the built-up area and the developer was entitled to 65% of the built-up area, together with the proportionate undivided interest in the land. The appellant had received an advance of Rs.l,74,00,000/- but, as per the JDA, instead of refunding the amount, a built-up area of 12,500 sq.ft. was to be appropriated from out of the owner's share. Accordingly, the advance of Rs.l,74,00,000/- was treated as part of sale consideration received on the date of JDA on 28.12.2005, for the purpose of computing the capital gains at Rs.l0,11,12,800/-. In the regular assessment, the Assessing Officer made a protective assessment for the Asst. Year 2008-09 and by an order u/s 143(3) r.w.s. 147 made a substantive assessment on 'the same amount, as income, for the Asst. Year 2006-07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjected to any revision under Section 147 of the Act, we Fail to understand how Revenue would be justified in sustaining its plea on its jurisdiction to revise the order under Section 147 of the Act. On this sale ground, we dismiss the Tax Case (Appeal) filed by the Revenue . According to the Authorized Representative, the Assessing Officer is questioning the order of the CIT(A) dated 16.05.2012 for the Asst. Year 2008-09 in the matter of quantum of Long Term Capital Gains. I this specific issue, I differ with the Authorized Representative. The Assessing Officer has issued notice u/s 147 after having credible information on record during the course of survey regarding the quantum of Long Term Capital Gains. Recalling the facts, the order of the CIT(A) for the Asst. Year 2008-09 was not regarding the quantum of Long Term Capital Gains, but was regarding the Asst. Year in which the Long Term Capital Gains is to be brought to tax. Hence, it cannot be held as the review on the basis of change of opinion. The issue in the appeal for the Asst. Year 2008-09 and also for the Asst. Year 2006- 07 was regarding the year in which the Long Term Capital Gains was to be brought to tax. The issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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