TMI Blog2017 (2) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... sole and exclusive owner of the properties under consideration and/or having any testamentary documents to claim exclusive ownership with rights to take care, deal and disposed off the property under question. We feel it appropriate that the ld. CIT would have taken into consideration of the actual amount received as an earnest money for taxation purposes. Finally as the instant case requires elaborate discussion with regard to the rights of the assessee as well as other legal heirs qua entitlement /rights/ obligation/liabilities of individual and as the order passed by the ld. CIT is erroneous to the extent that he has considered the complete amount including unpaid and unrealized also as notional capital gain, therefore, in our considered opinion, this is fit case to be remanded to the file of the ld. Assessing Officer for deciding afresh while considering the documents pertaining to the sale deed, agreement, society documents, relinquishment deeds etc. and other documents submitted by the other legal heir and/or claim of the Assessee as well the applicability of the same in the instant case and also while considering the Sec.159 and 168 of I.T. Act and Hindu Succession Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the transactions, has been wrongly rejected by ld.CIT(A). 8. That charging of interest u/s 234A 234B has been wrongly confirmed. 9. That initiation of penalty u/s 271(1 (c) has been wrongly confirmed. 10. That the order under appeal is wholly against law and facts of the case. 3. In the instant appeal, there is delay of 1 day while filing in appeal. The ld. AR submitted that the delay was occurred because of his personal difficulties and the same was not intentional and malafide and also relied upon the case of Collector, Land Acquisition Vs. Mst Katiji Ors. reported in (1987) 167 ITR 471(SC) and shown sufficient cause for 1 day delay for filing the instant appeal, so in the interest of justice, the delay of 1 day is condoned. 4. The brief facts of the case as noted in the assessment order are that on 25.02.2007, the Punjabi Co-operative House Building Society Ltd., Mohali, of which the husband of Late Smt. Manjit Kaur was a member and was allotted plot No.44 measuring 1000 sq. yard by the said society, entered into a tripartite joint development agreement with M/s. HASH Builders (P) Ltd., Chandigarh and M/s. Tata Housing Development Company Ltd. Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quare feet, the rate has to be taken as per the rate offered to the general public. That would be the actual rate of flat at which the builder would offer to any person. The sum of ₹ 4500/- per sq. feet is rate as per which HASH is liable to buy from THDC. It is a clear indication of the value of flat, devoid of any special benefit to the members. The rate which could be offered to general public would in any case be not less than 4500/- per sq. ft. Therefore, according to facts, the total value of consideration to be adopted comes at ₹ 3,67,50,000/-. 14.0 In view of the above, the transaction is treated as transfer and the capital gain is computed as under: Sale consideration: ₹ 3,67,50,000/- Less Cost of acquisition After indexation ₹ 2,43,167/- Long Term Capital Gain ₹ 3,65,06,833/- 15.0 The assessee has other income ₹ 25,200/- from rent and ₹ 5,384/- from interest. The same is also to be added to the income. 16.0 I am satisfied that by not showing the correct amount of capital gain the assessee has concealed income and furnished inaccurate particulars of income. Therefore, penalty proceedings are being ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under subsection (1) of section 139 in an account in any such bank or institution as may be specified in, and utilized in accordance with, any scheme which the Central Government may, by notification in the Official Gazettee, frame in this behalf and such return shall be accompanied by proof of such deposit; and for the purpose of subsection (1) the amount, if any, already utilized by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset;] The assessee has not demonstrated that before the date of filling return for A.Y 2007-08, he has deposited above sum in specified bank or institution. Even till date theses details have not been submitted by the assessee. Similarly, assessee has to satisfy conditions as provided in the provision to sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions of two properties in her name but subsequently, she filed the revised return and clarified, therefore, if inadvertently she had shown the property as her own then also she cannot become a full owner as law mandates that all the legal heirs are entitled to get their respective share unless and until separate arrangement has been made and/or debarred from inheritance. The ld. AR also relied upon the judgment passed by the Punjab Haryana High Court in the case of CIT vs. Bakshi Sampuran Singh 133 ITR 0650 and argued that facts of the case are similar to the instance case as the Hon ble High Court held as under: 8.After hearing the learned counsel for the parties and going through the record of the case, we are of the opinion that the question of law referred to us has to be answered in the affirmative, i.e., in favour of the assessee and against the Revenue. Mr. Awasthy, learned f counsel for the Revenue, could not cite any authority in support of his case. It is well settled that the income received by the executor during the course of administration belongs to him and he alone is liable to be assessed as such. The title of the residuary legatee accrues only whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angel, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in the facts of the case. The ld. AR further submitted that exemption claimed u/s 54F ought to have been allowed in favour of the assessee. 8. On the contrary, the ld. DR submitted that the cases which have been relied upon by the ld. AR are distinguishable to the facts of the instant case. It was further argued that even otherwise other legal heirs have not objected to the original return of the Assessee (deceased) now as reflects from the assessment order itself. It was further argued by the ld. DR that the order passed u/s 263 by the ld. CIT was never been agitated and/or challenged by the assessee, therefore, the order passed by the authorities below does not requires to be interfered with and same are likely to be upheld/confirmed. 9. We have gone through the facts and circumstances of the case and relevant record as well as rival submissions of the parties. At the outset, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section(1),- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c ) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by his in his capacity as legal representative if, while his liability for tax remains undercharged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, section 2(47)(v) of the I.T. Act, did not apply, that further, willingness to perform their part of the contract was absent on the part of the developers, or it could not be performed by them, which was one of the conditions precedent for applying section 53A of the transfer Act; that in clause 26 of the JDA dated 25.02.2007, the principle of force major had been provided for, which would be applicable with full vigour in the circumstances; that from the cumulative effect of the covenants contained in the JDA read with the registered special power of attorney dated 26.02.2007, it could not be held that the mandatory requirements of section 53A of the Transfer Act were complied with, which stood incorporated in section 2(47)(v) of the Act; that once that was so, it could not be said that the assessees were liable to capital gain tax in respect of the remaining land which was not transferred by them to the developer/builder because of supervising event and not on account of any volition on their part; and that viewed from another angle, it could not be said that any income chargeable to capital gains tax in respect of the remaining land had accrued or arisen to the assessee in th ..... 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