TMI Blog2018 (4) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... HRI AMARJIT SINGH, JM For The Assessee : Shri Amar Gahlot Chandni Patel (AR) For The Department : Shri M.C. Omi Ningshen (DR) ORDER PER AMARJIT SINGH, JM: The assessee has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals)-33, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment years 2005-06, 2006-07 2008-09. ITA NO.2787/M/2017:- 2. The assessee has filed the present appeal against the order dated 05.12.2016 passed by the Commissioner of Income Tax (Appeals)-33, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment years 2005-06. 3. The assessee has raised the following grounds: - Being aggrieved by the order of the Ld. Commissioner of Income-tax (Appeals) (hereinafter referred to as CIT(A)1 ), the Appellant craves leave to prefer appeal on the grounds, without prejudice to one another, as follows: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offered to tax by the Appellant. b) There arises no 'transfer' in A.Y. 2006-07since 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. 2006-07 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 2008-09. 4. The Appellant craves leave to alter, modify, add, delete any grounds of appeal at the time of hearing. ITA NO.7603/M/2011:- 6. The assessee has filed the present appeal against the order dated 30.08.2011 passed by the Commissioner of Income Tax (Appeals)-30, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment years 2008-09 7. The assessee has raised the following grounds:- The Assessing Officer has erred in making an addition of 1797490/- on account of Long Term Capital Gains on protective basis; 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 47,06,500/- on protective basis and also reopened the assessment in the year of 2005-06 and 2006-07 also. In the A.Y. 2005-06 2006-07, notices u/s 148 of the Act dated 21.03.2012 were issued and served upon the assessee. Thereafter the part of the receipt of the sale of the flats was taxed as long term capital gain in the year of 2005-06 2006-07 also. The assessee filed an appeal before the CIT(A) who confirmed the said order, therefore, the assessee has filed the present appeal before us. ISSUE NOs. 1 2:- 9. Issue nos. 1 2 are being taken up together for adjudication. Under these issues the assessee has challenged the addition of ₹ 17,97,490/- on account of long term capital gain on protective basis and also challenged the finding of the AO in which the AO has observed that the LTCG was liable to be taxed in the hands of the assessee in the A.Ys. 2005-06 2006-07 also. The ownership of the assessee upon the plot in question by virtue of will dated 20.08.1987 is not in dispute. The assessee along with his brother became the owner of the plot by virtue of probate by the 3rd Additional District Sessions Judge of Patna on 6th December 1990. Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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.Bijay kumar Kishorepuria. The date of sale agreement be/ng 10-11.2003 of the flat falls in the financial year 2005-06 and the sale consideration for the same is Rs,19,80, 500/-. The assesses has not declared this sale transaction the Return of Income filed for A.Y. 2005-06 resulting thereby in under assessment(non-assessment) of income under the heading long Term Capital Gain' Of ₹ 9,90,123/-. Assessment u/s 43(3) of the I.T. Act, 1961 has been made for the A. Y, 2005-06 vide order dated 23.10.2007. I have, therefore, reasons to believe that income in the form of Long Term Capita! gain of ₹ 9, 90, 124/- chargeable to tax has escaped assessment for the Assessment Year 2005-06 as per provisions of Section 147 of the I.T. Act. Accordingly, Sanction u/s 151 of the I T. Act for issuing Notice U/S 148 of this Act to reopen the assessment u/s 147 of the Act is hereby solicited, 10. In the A.Y. 2006-07 the reasons have been given which lies at page no. 77 of the paper book. Which is hereby reproduced bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed AO at the time of original assessment u/s 143(3) of the Act. In this regard, the ledger was produced on dated 15.10.2007 which lies at page no. 96 to 97 of the paper book. Accordingly, the Assessing Officer also raised the question about non-offering the tax on sale consideration received from Bijay Kumar Kishorepuria and Mr. Sunil Khemka in his notice dated 06.11.2008 which was replied but the Assessing Officer nowhere choose to tax in the assessment years 2006-07. Needless to say that the capital gain tax has been offered to tax in the A.Y. 2008-09 after the receipt of the full payment. The Assessing Officer nowhere choose to tax the long term capital gain in the A.Y. 2005-06 and 2006-07 during the original assessments u/s 143(3) of the Act. The reopening u/s 147/148 of the Act for assessment years 2005-06 and 2006-07 is otherwise also untenable as it has been reopened after a period of four years where the original assessment was completed u/s 143(3) of the Act. In this context, the proviso to Section 147 of the Act is attracted and the reopening would be justified only when the AO has recorded that there is a failure on the part of the assessee to disclose fully and truly al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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