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2012 (3) TMI 474

tion to the file of the A.O. with the direction to refer the same to the DVO in the light of our above observations. The DVO should only consider net of land transfer to Developer by the assessee after considering acquisition made by the Govt as well as Thane Municipal Corporation as discussed hereinabove and also to exclude the value of TDR or additional FSI included in the consideration shown in the Development Agreement. Needless the say the A.O. should give reasonable opportunity of being heard to the assessee. - ITA No. 5803/Mum/2009 - Dated:- 28-3-2012 - J. Sudhakar Reddy (Accountant Member) And R. S. Padvekar (Judicial Member) For the Petitioner : Manish Kanojia For the Respondent : B. V. Jhaveri ORDER R. S. Padvekar (Judicial Member .....

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ts which revealed from the record are as under. The assessee is an individual who was the owner with one-half of the share in the plot of land situated at Panchpakhadi, Thane (West). The assessee sold the said property for total consideration of ₹ 20 lakhs and accordingly as the assessee had ½ share the assessee declared ₹ 10 lakhs as sale consideration. The assessee declared the capital loss in respect of the sale of the said plot of land of ₹ 2,56,476/-, after claiming Index Cost of Acquisition. It was noticed by the A.O. that as per the agreement the fair market value of the land for the purpose of payment of the stamp duty was adopted at ₹ 1,19,72,064/- as against the sale consideration of ₹ 20 lakhs .....

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The A.O. applied sec.50C and adopted the sale consideration of ₹ 1,19,72,064/- which was valuation adopted for the purpose of payment of the stamp duty when the Development Agreement was registered on 20th July, 2005. The assessee challenged the action of the A.O. before the Ld. CIT (A). The Ld. CIT (A) following the decision of the Tribunal in the case of Shakti Insulated Wires (P) Ltd. vs. ITO in ITA 3710/Mum/2007 dated 27.04.2009, allowed assessee s contention. He further observed that the assessee has transferred land admeasuring 134 meters only and he held that pro-rata consideration should be ₹ 7,14,910/- as against total consideration of ₹ 20 lakhs. In sum and substance, he held that, in fact, consideration declared .....

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cquisition of the land if the assessee has not taken any consideration. So far as issue of the TDR is concerned, the value of the TDR cannot be the subject matter of sec. 50C and admittedly, the assessee gets additional FSI / TDR only after the acquisition of the land. As per the Land Acquisition Act once the notification is issued then assessee loses the title of the land or property. Ultimately, what has to be considered is the net area available with assessee for transferring to the Developer. 5. The Ld. D.R. relied on the decision of the Hon ble High Court of Bombay in the case of Chedda Housing Development vs. Babijan Shekh Farid - 2007 (3) MLJ 402 (Bom) in which their Lordships have interpreted the definition of immovable property und .....

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