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Income Tax Officer 17 (1) (1) , Mumbai Versus Sam P Toddywalla and Vica-Versa and Income Tax Officer 14 (3) (3) , Mumbai Versus Mr. Munchershaw P Toddywalla and Vica-Versa

2016 (4) TMI 804 - ITAT MUMBAI

Long term capital gain - Held that:- The assessee had no control over the said property. We further note that it conveyance deed was executed in favour of the purchasers of flats through the cooperative society to which the assessee was also confirming party and a sum of 2,47,60,250/- was paid by the flat owners to the builders M/S DCPL and the assessee did not get anything out of the sale consideration. The developer DC PL had paid the income tax on the income resulting from the consideration o .....

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d not be taxed twice firstly in the hands of developers M/.S DCPL who received the consideration actually and second in the hands of the assessee who was just confirming party to the conveyance deed. In our opinion the assessee must be taxed only in respect of the long-term gain on the lump sum compensation received at the time of leasing of the land ₹ 6,25,000/- being 50% of total compensation received i.e ₹ 12,50,000/- in 1979. Thus, we do not find any infirmity in the order of CIT .....

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M: These are the cross-appeals and these are directed against the orders dated 19.4.2012 and 8.8.2013 passed by the respective CIT(A) and these relate to the assessment year 2007-08. Since issue involved in all these cases is common and therefore, these appeals are heard together and are being disposed of by this consolidated order for the sake of convenience. We shall take up the grounds as raised in ITA No.4518/Mum/2012 which are as under: 1. On the facts and in the circumstances of the case a .....

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eversed and that of the Assessing Officer be restored. 2.1 The facts in brief are that the assessee filed his return of income at ₹ 1,64,451/- on 12th July 2007 which was revised by the him on 26th July 2007 by declaring an income of 1,64,651/-. The assessee and his brother were co-owners of land admeasuring 54198 Sq Metres having share of 50% each which was leased out by them for 999 years vide agreement dated30.03.1979 to a builder namely Daryani (Indo Saigon) Construction Pvt.Ltd. for a .....

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th of November 2006 a deed of conveyance was registered between the assessee, his brother (owners), the Daryani (Indo Saigon) Construction Pvt. Ltd., and the flat buyers represented by Deepti Shakti Mukti Co-operative Hsg.Soc.Ltd. for a consideration of rupees 2,47,60,250/-which was received by the builder company directly. The case of the assessee was reopened under section 147 read with section 148 of the Act to assess the long-term gain arising out of the said transaction. The notice under se .....

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r the flats purchased and car parking area to the builder and he had not received anything out of the said consideration. The said builder had duly paid the income tax on the profits on the sale of flats. The AO rejected the contention of the assessee that the property was leased out to DCPL on 30 March 1979 . The assessee however admitted that he had not paid any tax on the money received upon granting of lease these for 999 years in the financial year 1979-80 which was as good as sale however .....

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cost of the land. The above working given by the appellant of ₹ 2,40,975/-appears to be reasonable. However the above working was not available before the assessing officer during the assessment proceeding. In fact the appellant together with his brother has received ₹ 12,50,000/-which was non-refundable deposit from the Lessor of land for 999 years. I feel this should be the actual consideration received. 50% of this ₹ 6.25/- would be the cost of consideration received by the .....

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rther submitted that the assessee did not pay any tax in the financial year 1979-80.The assessee was party to the said conveyance deed therefore the AO had rightly assessed the capital gain arising out of sale of land through the conveyance deed. 6. Per contra, the AR submitted before us that though the assessee had not paid any tax on the non-refundable compensation/Lease money received for leasing out the land in the AY 1979-80. The assessee did not receive anything out of the sale considerati .....

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on of ₹ 12,50,000/-which was non-refundable and also handed over the possession of the land to builder. Thereafter the assessee had no control over the said property. We further note that it conveyance deed was executed in favour of the purchasers of flats through the cooperative society to which the assessee was also confirming party and a sum of 2,47,60,250/- was paid by the flat owners to the builders M/S DCPL and the assessee did not get anything out of the sale consideration. The deve .....

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