TMI Blog2015 (6) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... refund in this respect as per provisions of the law. In this appeal, the income received by the assessee on transfer of TDR has been taxed by the lower authorities as income from other sources. In view of our above observations, the receipt on transfer of TDR and in terms of the consent terms decree of the Court is though capital receipt but can not be subjected to Capital Gains Tax . The said receipt therefore can not be taxed even under the head ‘Income from other sources’. - Decided in favour of assessee. - ITA Nos. 7810/M/2010 & 6599/M/2012 - - - Dated:- 17-6-2015 - SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER Assessee by : Shri Vipul Joshi, A.R. Abhishek Tilak, A.R. Revenue by : Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om capital gains was wrongly declared as the same was exempt in the hands of the assessee. The AO, however, assessed the returned income and thereby also taxed the capital gains. The assessee preferred appeal before the Ld. CIT(A). 3. It had been contended before the Ld. CIT(A) that the sum of ₹ 14,50,000/- had inadvertently been shown as long term capital gains in the return of income and the same was therefore wrongly offered for taxation. The assessee had received the said amount from his housing society namely Land Bridge Co-operative Housing Society Ltd. being its member as having a residential flat therein. The society and its members received certain amount from the builder for transfer of development rights/additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of capital Gains Tax on society had been taken to the Income Tax Appellate Tribunal by the society. The Tribunal vide order dated September 14, 2012 reported as (2013) 21 ITR Trib. 467 (Mum.) held that though the transferrable development right amounts to transfer of capital asset by the society, however, the same could not be subjected to tax under the head Capital Gains for the reasons that there was no cost of acquisition in acquiring the right which had been transferred and therefore the computational mode given in section 48 thus fails. The Tribunal therefore deleted the addition made in the hands of the society in respect of the above stated capital gains. The matter was carried by way of appeal by the Revenue to the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the society and its members individually. Though the Ld. AR has contended that the entire receipt has already been considered at the hands of the society, however, irrespective of the above contention, even if, the income received by the assessee is considered in the hands of the assessee, still it can not be subjected Capital Gains Tax in view of the law laid down by the Hon ble High Court in the case of housing society of the assessee i.e. in the case of Land Bridge Co-operative Housing Society Ltd. (supra). The same proposition will apply in the case of the assessee also. Respectfully following the decision of the Hon ble Bombay High Court, it is held that the TDR receipts in the hands of the assessee are not taxable. 5. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that even if a claim is not made before the AO, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon ble High Court has further observed that the decision of the Hon ble Supreme Court in the case of Goetze (India) Limited v. CIT (2006) 157 Taxman 1, relating to the restriction of making the claim through a revised return was limited to the powers of the Assessing Authority and the said judgment does not impinge on the power or negate the powers of the appellate authorities to entertain such claim by way of additional ground. Even otherwise, the Ld. CIT(A) ought to have considered the claim of the assessee in exercise of his appellate jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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