TMI Blog2017 (7) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... e Memorandum of understanding that out of ₹ 70 lakhs (Rs. 20 lakhs pertains to initial payment plus a compensation of ₹ 50 lakhs) was paid as the full and final settlement towards dues. We found the assessee has claimed in the Return of income filed for the assessment year 2004-05 compensation of ₹ 50 lakhs paid to Opal Constructions and subsequently in the order passed u/s. 143(3) r.w.s. 263 of the Act. The Ld. AO allowed the compensation claim of ₹ 50 lakhs only, but before the Ld. CIT(A), assessee made fresh claim of ₹ 20 lakhs, which is not allowable after passing the assessment order u/s. 143(3) r.w.s. 263] in confirmity with Revision order. Hence, we are of the opinion that Ld. CIT(A) was not justified in directing additional claim of ₹ 20 lakhs based on the fresh claim by the assessee. The provisions of section 263 of the Act is for the benefit of Revenue and not for assessee. Accordingly, we are inclined to set aside the order of CIT(A) on this ground and restore the order of Assessing Officer allowing the claim of ₹ 50 lakhs only and allow this ground of the appeal of the Revenue. Work out the appropriate cost of indexation of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for condoning the delay in filing the appeal ITA No. 1596/Mds/2013. 3. Before going into the merits of the assessee case, the Ld. AR has argued to condoned the delay of 762 days in filing the appeal. We heard both the parties, the Ld AR explained that the assessee has filed an affidavit for condonation of delay and admission of the appeal. We have perused the condonation petition filed by the assessee. The assessee has filed an affidavit and prayed for condonation of 762 days without explaining the valid reasons for delay in filing the appeal. The Ld. AR could not explain the circumstances in which the appeal was filed and we Prima Facie found, there is inordinate delay in filing the appeal and the explanations are not convincing. We also find that the delay cannot be condoned without sufficient cause and valid reasons and rely on the co-ordinate bench decision of this Tribunal in the case of JCIT Vs Tractors Farm Equipments Ltd., 104 ITD 149, at page 150 wherein it was observed as under: A distinction must be made between a case where the delay is inordinate and a case where the delays is of a few days. Whereas in the former case, the consideration of prejudice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006) 280 ITR 357 (Mad) 11. Venkatadri Traders Ltd., Vs. CIT (2001) 168 CTR (Mad)81: (2001) 118 Taxman 622 (Mad) 4. Considering the facts, judicial decisions and explanations of the assessee, we are of the opinion that the condonation petition filed by the assessee is without sufficient cause and there seems to be negligence on the part of the assessee and no priority was fixed and such lapses cannot be condoned and we decline to condone the delay in filing the appeal and accordingly the appeal is dismissed as unadmitted. Similarly the three co-owners filed the appeal in ITA No. 1594, 1595 1597/Mds/2013, where the facts are identical and similar to ITA No. 1596/Mds/2013and Accordingly these appeals are also dismissed as unadmitted. In the result, Assessee appeals in ITA Nos. 1596/Mds/2013, 1597/Mds/2013, 1595/Mds/2013 1594/Mds/2013 are dismissed. 5. The Revenue has filed appeals against the commonorder of Commissioner of Income Tax (Appeals) in ITA No. 289, 292, 288 291/11-12 passed u/s. 143 r.w.s. 263 and 250 of the Income Tax Act. For the sake of convenience, we take up the Revenue appeal filed in ITA No. 831/Mds/2013 for the assessment year 2004-05 and the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and other sources. Since, the Return of income was filed belatedly, the Assessing Officer issued notice u/s. 148 of the Act as income has escaped assessment and the assessment was completed u/s. 143(3) r.w.s. 147 of the Act on 29.12.2008 with Assessed income of ₹ 64,08,990/-. Subsequently, the Commissioner of Income Tax -II, Thiruchirappali found the order passed u/s. 143(3) r.w.s. 147 of the Act on 29.12.2008 is erroneous and prejudical to the interest of the Revenue and passed the order u/s. 263 of the Act dated 16.03.2011 set aside theorder of Assessing Officer. The Ld. AO as per the directions of the commissioner of income tax issued notice u/s. 143(2) of the Act on 02.06.2011 and in response to notice, the Ld. AR of the assessee appeared from time to time and submitted the information along with Books of accounts. The assessee along with his mother Smt. Sesa Balkees Ammal, brother Shri AVM Nazimuddin and sister AVM Zubaida Beevi, entered into an agreement of development of the property in July 2002 with M/s. Opal Constructions. Since, the property development project could not materialise, the assessee along with three co-owner paid compensation of ₹ 50 lakhs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs to Opal Constructions in connection with Land Promotion. Further, the ld. AO applied the provisions of section 50C of the Act and also restricted the index value of land to ₹ 13,49,645/- and Assessed the Long Term capital gains of ₹ 2,92,59,995/- and share of the assessee is determined at ₹ 82,83,357/- and the Ld. AO passed the order u/s. 143 r.w.s. 263 of the Act dated 22.12.2011. 8. Aggrieved by the order, the assessee has filed an appeal with the CIT(A). In the appellate proceedings, the Ld. AR made submissions on the evidences and Hibbah documents and further the Ld. AO erred in determining the sale consideration as per the provisions of section 50C of the Act, the Ld CIT(A) considered the grounds, submissions of the assessee and the evidence filed on the disputed issue for complying the provisions of section 50C of the Act. The Ld. CIT(A) discussed elaborately at Page 2 to 9 of the order and concluded that the Assessing Officer has completed re-assessment on 29.12.2008. Whereas, the amendment to sec. 50C of the Act was introduced by the Finance Act w.e.f. 01.10.2009 and shall apply only to the transactions took place on or after 01.10.2009. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rused the material on record and judicial decisions. The fact that the assessee is one of the co-owner and the coowners claimed deduction of ₹ 50 lakhs paid as compensation to M/s. Opal Constructions. We perused the documents and material in support of payment of ₹ 70 lakhs at page 163 of paper book. Where it was stated in the joint development agreement executed on 20.05.2003 between the assessee and other co-owners and Allied Majestic Developers confirming that the Opal Constructions, at the time of execution of development agreement paid sum of ₹ 20 lakhs to the co-owners and after the discussions and arrangements between the co-owners and erstwhile developer Opal Constructions the present developer Allied Majestic made arrangement for payment referred at page 163 and inner page 3 of the Memorandum of understanding that out of ₹ 70 lakhs (Rs. 20 lakhs pertains to initial payment plus a compensation of ₹ 50 lakhs) was paid as the full and final settlement towards dues. We found the assessee has claimed in the Return of income filed for the assessment year 2004-05 compensation of ₹ 50 lakhs paid to Opal Constructions and subsequently in the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to the building demolishing evidence and submitted that after obtaining permission on 01.03.2001, the assessee has demolished the building and entered into a development agreement with builder. Now, the question arises on determining the value of old building existence as on 01.03.2001. On the query from the bench the Ld AR could not convince with respect to existence of building with any proof or value or valuation report to support their claim and relied only on the documents. 13. We perused the various documents as referred by the Ld. AR there seems to be a building existing right from the purchase of the property from the year 1997 to the year 2001 and the fact being that the building was under existence. Now the question arises the assessee has claimed indexation on the value of building as per the valuer report. We find the Assessing Officer has not referred to the valuation report and made observations only on Hibbah document executed on 02.05.2003 between co-owners, where these facts of the old building was not mentioned. Prima Facie, on perusal of the supportive documents there was existence of building but the value was not determined. Even the valuation report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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