TMI Blog2018 (5) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... TK/2015 - - - Dated:- 7-5-2018 - SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER For The Assessee : Shri Dillip Kumar Mohanty, AR For The Revenue : Shri D.K.Pradhan, DR ORDER Per N.S.Saini, AM These are cross appeals filed by the assessee and the department against the order of the CIT(A)-1, Bhubaneswar dated 23.2.2015 for the assessment year 2007-2008. 2. The assessee has raised the following grounds of appeal: 1. For that the order of assessment dated 18.3.2013 as well as the order of the CIT(A)-1, Bhubaneswar dated 23.2.2015 are void, abinitio, in view of the jurisdictional error since at the time of Development agreement for development of the property, no transfer arises giving rise to any Transfer of Property U/s. 53A of the Transfer of Property Act, thereby into the mischief of 2(47) of the I.T. Act, 1961. Thus, the notice issued U/s. 147 for the impugned period are not only illegal but also without jurisdiction. 2. For that the Ld. Assessing Officer has wrongly assumed jurisdiction on the face of the fact that though the Developer Agreement was executed on 15.01.2007, but however, the delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) appreciated the pre and post expenditure towards construction of the residential house, but however, considering part of the same and rejecting the others without a speaking order in calculating the cost of acquisition are erroneous and needs to be revised and hence liable to be set aside. 10. For that the assessee craves leave to add, alter or amend any of the grounds of appeal either before or at the time of hearing of the appeal. 11. For these and other grounds if any that will be adduced at the time of hearing, it is prayed that the assessment be quashed and the demand be annulled in the interest of justice and equity. 3. In Ground Nos.1 to 4 of the appeal, the grievance of the assessee is that the time of development agreement for development of property, no transfer arise giving rise to any transfer of right u/s.53A of the Transfer of Property Act and hence, the assessee is not liable to any capital gains tax. 4. The brief facts of the case are that the assessee entered into an agreement with the builder M/s. Odyssa Home Commercials (P) Ltd. on dt.15.1.2007 for construction and sale of 9 dwelling units on his land situated at Plot N0.137/A, Surya Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer also found that the assessee has invested an amount of ₹ 1,18,630/- over a period of years in constructing a two storied building in the said plot which was demolished by the builder and computed the indexed cost of improvement at ₹ 4,61,221/-. Accordingly, the total indexed cost of acquisition and investment was computed at ₹ 13,04,928/- (8,43,707 + 4,61,221). After deducting the indexed cost of acquisition and investment from the total amounts received in cash and kind, the Assessing Officer arrived at the long-term capital gains of ₹ 1,07,28,455/- and added the same to the income of the assessee. 7. Before the CIT(A), apart from filing additional grounds of appeal regarding delivery of possession of land, the assessee vide written submission dt.17.7.2014 has contested the AO s conclusion that delivery of the landed property was given on 15.1.2007 as part performance of contract as under: 1. At the outset, it is submitted that though the agreement with the developer was executed on 15.01.2007 and the General Power of Attorney was executed on the same day, but however the delivery of possession of the land was delivered to the developer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. are annexed herewith at Annexure-I for your honour's kind perusal, record and reference. It is pertinent to submit here that on receipt of the rent as aforesaid from the tenant M/s. Suntony Signate Pvt. Ltd, the assessee has offered the same for taxation during the financial year 2006-07, relating to the Asst.Year 2007-08. The returns filed for the aforesaid period accompanied with the computation of total income by the assessee are annexed herewith at Annexure-II for your honour's kind perusal, record and reference. From the submission as above vis-avis the documents submitted now, it is evident that during the impugned year, the possession of r the scheduled property was with the assessee appellant. It is further submitted that assessee had rented a premises for his residence at Plot No.64, Surya Nagar, BBSR for the period 30.7.2007 to 20.6.2012 (copy enclosed) 8. The CIT(A) after considering the submissions of the assessee held as under: I have considered the matter. The AO has made a detailed discussion regarding the part performance of contract when the appellant executed an agreement on dt.15.1.20107 with Odyssa Home Commercials (P) Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Section 17(1A) and Section 49 of the Registration Act shows that in the eyes of law, there is no contract which can be taken cognizance of, for the purpose specified in Section 53A. The ITAT was not correct in referring to the expression of the nature referred to in Section 53A in Section 2(47)(v) in order to arrive at the opposite conclusion. This expression was used by the legislature ever since sub-section (v) was inserted by the Finance Act of 1987 w.e.f. 01.04.1988. All that is meant by is expression is to refer to the ingredients of applicability of Section 53A to the contracts mentioned herein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi (supra), that the Section applies, and this is what is meant by the expression of the nature referred to in Section 53A . This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression of the nature referred to in Section 53A would somehow refer only to the nature of contract mentioned in Section 53A, which would th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
