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Mangesh A. Tupe Versus The Income Tax Officer, Ward 11 (1) , Pune

2018 (2) TMI 973 - ITAT PUNE

Computation of LTCG - invoking of the provisions of section 50C - Identification of property - Held that:- A perusal of description of properties clearly indicate that the survey numbers giving description of property in development agreement dated 17-01-2004 are different from survey numbers of land which are subject matter of agreement dated 19-01-2004. Even the total area of land is different in both the agreements. Both the authorities below have failed to examine that the land which is subj .....

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e first time before the Tribunal. During the assessment proceedings the assessee never appeared before the Assessing Officer and apparently no such ground was raised by assessee before the First Appellate Authority. Therefore, we deem it necessary to remit this appeal back to the file of Assessing Officer for necessary verification and identification of the land before proceedings with the assessment of any gain arising from sale of land. - Decided in favour of assessee for statistical purposes. .....

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e executed a development agreement dated 19-01-2004 for sale of development rights in favour of M/s. City Corporation Limited for a consideration of ₹ 31,98,820/-. The assessee did not file return of income disclosing income from transfer of such rights. Notice u/s. 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) on 14-03- 2011. The assessee did not respond to notice. Thereafter, several notices were issued to the assessee u/s. 142(1) of the Act, the assessee remained .....

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377; 54,20,320/- and computed Long Term Capital Gain as ₹ 25,05,172/-. Aggrieved by assessment order dated 01-12-2011 passed u/s. 144 r.w.s. 147 of the Act, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) confirmed the findings of Assessing Officer and dismissed the appeal of assessee. Now, the assessee is in second appeal before the Tribunal against invoking of the provisions of section 50C, as well as computation of Long .....

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ficer on sale of the land amounting to ₹ 25,05,172/- without verification of the facts of the case and not appreciating the factual position of the case. 3. The Learned Commissioner of Income Tax has also erred in applying provisions of section 50C of the Income Tax Act, 1961. 4. The ld. AR of assessee submitted that the assessee vide Development Agreement dated 17-01-2004 with Shri Popat Keshav Tupe and others acquired development rights in respect of land situated at Grampanchayat Sadesa .....

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d the English translation is at pages 119 to 131 of the paper book. The ld. AR submitted that admittedly, before the Assessing Officer, the assessee did not appear. The Assessing Officer treated the land to be ancestral and computed Long Term Capital Gain by invoking the provisions of section 50C of the Act. The Assessing Officer while computing Long Term Capital Gain disturbed both, the sale price of land, as well as cost of acquisition of land. The ld. AR submitted that the land in question is .....

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e, the assessee had acquired the development rights in the land for business purpose the provisions of section 50C are not attracted. 4.1 The ld. AR further submitted that a search action u/s. 132 was carried out at the residential premises of the assessee on 21-02-2008. The assessment order u/s. 143(3) r.w.s. 153A for the assessment year 2004-05 was passed on 31-12-2009. The said assessment order is at pages 80 to 85 of the paper book. The income arising from development agreement executed by a .....

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hayat Sadesatranalli, Hadapsar. 5. On the other hand Dr. Vivek Agarwal representing the Department vehemently supported the findings of Commissioner of Income Tax (Appeals) and prayed for dismissing the appeal of assessee. 6. We have heard the submissions made by representatives of rival sides and have perused the orders of authorities below. We have also considered various documents placed on record by assessee in the form of paper book. It is contention of the assessee is that the development .....

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7. The properties which is subject matter of agreement dated 17-01- 2004 between the assessee and Shri Popat Keshav Tupe and others is as under : i. Survey No. 197/5 admeasuring 00 Hector 66 Aar. ii. Survey No. 197/3C admeasuring 00 Hector 20 Aar. iii. Survey No. 187/1B admeasuring 00 Hector 29.33 Aar. iv. Survey No. 187/12 admeasuring 00 Hector 24 Aar. v. Survey No. 188/1A admeasuring 00 Hector 13.66 Aar. situated at Grampanchayat Sadesatranalli, Hadapsar. Whereas, the properties for which dev .....

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total area 00 Hector 20 Aar. v. Survey No. 187/5 admeasuring 00 Hector 2.75 Aar from and out of total area 00 Hector 20 Aar. situated at Grampanchayat Sadesatranalli, Hadapsar. A perusal of description of above properties clearly indicate that the survey numbers giving description of property in development agreement dated 17-01-2004 are different from survey numbers of land which are subject matter of agreement dated 19-01-2004. Even the total area of land is different in both the agreements. B .....

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is that the transaction which has been subjected to tax in the present proceedings has already been offered to tax in proceedings arising from search operations u/s. 153A of the Act. We find that this plea has been raised by assessee for the first time before the Tribunal. During the assessment proceedings the assessee never appeared before the Assessing Officer and apparently no such ground was raised by assessee before the First Appellate Authority. Therefore, we deem it necessary to remit thi .....

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