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2018 (4) TMI 693

ived 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. 2005-06 and 2006-07 are not justifiable and are held to be wrong against law and facts and are hereby ordered to be set aside by relying upon the law settled in Hindustan Lever Ltd. Vs. R. B. Wadkar (2004 (2) TMI 41 - BOMBAY High Court). - I.T.A. Nos.2787, 2788/M/2017 And 7603/M/2011 - Dated:- 19-3-2018 - SHRI G.S. PANNU, AM AND SHRI 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 re .....

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ounds, 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 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. 2006-07, 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. 2006-07: 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. 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 .....

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nt, the assessee and his brother transferred 60% share of the land to the developer Max Enterprises Pvt. Ltd. or their nominees in lieu of which they were entitled to 40% of the constructed area. The assessee indicated his two flats and received consideration in the A.Ys. 2005-06 & 2006-07 in sum of ₹ 47,06,500/- and the long term capital gain was assessed to the tune of ₹ 17,97,490/-. The Assessing Officer was of the view that the income to the assessee was accrued in the A.Y. 2005-06 & 2006-07, therefore, the long term capital gain was liable to be taxed in the said year, hence, the Assessing Officer assessed the tax on long term capital gain upon the sale consideration of the flats to the tune of ₹ 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 asses .....

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of the Act or not for the assessment year of 2005-06 and 2006-07. The reasons are 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. 2005-06 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. 2005-06. 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.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 Capit .....

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/- in the assessment year of 2005-06 and the assessee did not declare the long term capital gain to the tune of ₹ 9.90,123/. for tax in the return of income. The assessee submitted his reply that the assessee filed the objection by virtue of letter dated 03.12.2012 which lies at page no.75 to 82 of the paper book in ITA. No. 2787/M/2017. The assessee also filed the objection in ITA. No.2788/M/2017 by virtue of letter dated 03.12.2012 which lies at page no. 69 to 76 of the paper book. It is specifically explained that the issue was earlier examined by concerned 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 c .....

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