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TMI Blog2018 (4) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Ld., C1T(A) has erred in concluding that the Appellant has preferred no appeal before the Hon'ble ITAT against the protective assessment for A.Y. 2008-09, when Appeal No. 7603/Mum,/2011 is already filed on the issue and is pending before the Hon'ble ITAT. 1.The Ld. CET(A) has erred in allowing the action of the Assessing Officer in re-opening the assessment for A.Y. 2005-06, beyond four years of limitation, even when there was full and true disclosure of material facts during the original assessment proceedings. 3. The Ld. CIT(A) has erred in allowing the taxation of capital gains in A.Y. 2005-06: a) The transfer of property was effected in AY 2008-09, which is the year when the capita! gains were offered to tax by the Appellant. b) There arises no 'transfer' in A.Y. 2005-06 since the possession of the property was not given because the same was under construction, as the property was not constructed in AY 2005-06. c) There arises no 'transfer' in A.Y. 2005-06 as what was entered into in this year was a mere agreement to sell with conditions precedent in respect of payment of consideration, and such conditions were fulfilled only in AY 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The CIT(A) erred in upholding the findings of the Assessing Officer in so much as the LTGC needs to taxed in the hands of the appellant for assessment year 2005-06 and 2006-07; and 3. The appellant craves leave to, add to alter, amplify, modify or delete all or any of the aforesaid grounds at or before the hearing." 8. The brief facts of the case are that the assessee filed his return of income on 20.03.2009 declaring total income to the tune of Rs. 5,26,470/- for the assessment year of 2008-2009. Thereafter, the assessee has filed the revised return of income on 30.03.2009 declaring total income to the tune of Rs. 5,26,470/-. The return was processed u/s 143(1) of the I.T. Act, 1961. Subsequently, the case was selected for scrutiny and notice u/s 143(2) of the Act was issued and served upon the assessee. Thereafter, the notice u/s 142(1) of the Act along with questionnaire was also issued and served upon the assessee. The assessee was an individual and during the year assessee's total income consisted of income from salary, income from business, capital gains and income from other sources. The assessee received the loan amounting to Rs. 65,95,287/- from Fashion Exim India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot by virtue of probate by the 3rd Additional District & Sessions Judge of Patna on 6th December 1990. Subsequently, the assessee alongwith his brother entered into the development agreement dated 05.03.2003 with one Max Enterprises Pvt. Ltd. of Patna in respect of property in question. The assessee and his brother allowed the development upon the said inherited property by the said developer i.e., Max Enterprises Pvt. Ltd. The assessee sold two flats along with undivided share in the property to Shri Bijay Kumar Kishorepuria and Shri Sunil Khemka and received sale consideration of Rs. 19,80,500/- by virtue of agreement to sell dated 10.11.2004 in the A.Y. 2005-06 and the assessee received the sale consideration of Rs. 27,26,000/- by virtue of agreement dated 05.05.2005 in the A.Y. 2006-07. The agreement is on the file which lies at page no. 127 to 143 of the paper book. In ITA. No.7603/M/2011, the agreement dated 04.05.2005 between the assessee's and Sunil Khemka lies at page no.109 to 125 of the paper book. The para no. 6 to 6.4 of the sale agreement, it has been clarified that the sale would be completed after the full consideration. The sale was completed in the A.Y. 2008-09 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he paper book. Which is hereby reproduced below as under:- ""Mr. KISHORE KUMAR KATHRUKA 71, Land Mark, 175, Carter Road, Bandra (West), Murnbai-400050. Sir, Sub : Reasons for reopening : -Reassessment proceeding u/s 147 of the I.T.Act for trie A. V. 2006-07 PAN : ABXPK3340B; Ref: Your letter dated 3.04,2012 refer to the above. Vide letter dated 03.04.2012 you have requested to provide reasons for reopening of the assessment u/s 147 for the A. Y. 2006-07. In view of the above, the Reasons for reopening of assessment u/s 147 of the Income tax Act, 1961 is provided to you as under:- During the course of assessment proceedings for the A.Y. 2008-09, it is observed from the details by the assessee that the assessee had told his residential unit being fist, to one Mr.Sunil Khemka. The date of sale agreement being 04.05.2005 of the flat falls in the financial year 2005-06 and the sale consideration for the same is Rs,27,26,000/-. The assesses has not declared this sale transaction the Return of Income filed for A.Y. 2006-07 resulting thereby in under assessment(non-assessment) of income under the heading long Term Capital Gain' Of Rs. 11,27,278/-. Assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment. In this case, there is no such charge by the assessee. It is not in dispute that the assessee transferred flats along with undivided share in the plot to Bijay Kumar Kishorepuria and Mr. Sunil Khemka. The sale would be deemed to be concluded after the full payment and on the date of registration which effected after the A.Y. 2006-07. In this regard we also find in support of law settled in Shri Raj Rani Devi Ramna Vs. CIT-(1993) 201 ITR 1032 Patna, Suraj lamp and Industries P. Ltd. Vs. State of Harayana and Anr. (2012) 340 ITR 1 Supreme Court. The assessee admitted that the sale-deed was registered in the year 2011-12 but he received full consideration in the A.Y. 2008-09, therefore, he offered the same to tax under the head of long term capital gain. In the above said facts and circumstances of the case, the Long term capital gain has been assessed to tax on protective basis in the A.Y. 2008-09. The long term capital gain assessed on protected basis in the assessment year 2008-09 is herby treated as substantive assessment. Therefore in the said circumstances, we are of the view that the notice u/s 148 of the I.T. Act, 1961 to the assessee dated 21.03.2012 for the A.Y. 20 ..... 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