TMI Blog2018 (9) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... ], we find no infirmity in his order as the guidance value of the property was of ₹ 20 lakhs and the assessee himself has offered the higher value i.e., ₹ 37,60,000/- to tax. Therefore, we confirm the order of CIT(A). Accordingly, the appeal of the Revenue is dismissed. - ITA No.194/Bang/2018 - - - Dated:- 7-9-2018 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER For The Revenue : Dr. P. V. Pradeep Kumar, Addl. CIT For The Assessee : Smt. Sheetal Borkar, Advocate ORDER Per Sunil Kumar Yadav, Judicial Member This appeal is preferred by the Revenue against the order the CIT(A), inter alia, on following grounds: 1. The order of the learned CIT(A) is oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of hearing the orders of Ld.CIT(A) may be set aside and that of Assessing Officer may be restored. 2. The grounds raised in this appeal relate to the deletion of addition of ₹ 1.6 Crores being capital gain on assessee s share of built up area in the project executed under Joint Development Agreement (JDA) by adopting cost of construction at the rate of ₹ 1600/- per sq.ft. The facts in brief borne out from the record are that in first round of appeal the Tribunal vide its order dated 31.08.2017 set aside the order of the CIT(A) and restored the matter to the file of CIT(A) with a direction to readjudicate the issue in the light of judgment of jurisdictional High Court in the case of CIT Vs. Ved Prakash Rakhra 376 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 37,60,000/- and not ₹ 1,60,00,000/- as held by the AO. Accordingly, he deleted the addition. 4. Aggrieved, the Revenue has preferred an appeal before the Tribunal and placed heavy reliance upon the order of the AO whereas the learned Counsel for the assessee, besides placing reliance upon the order of the CIT(A), has invited our attention to the judgment of the Apex Court in the case of CIT Vs. Balbir Singh Maini (supra) in which it has been held that if the owner continues to be the owner throughout agreement, and had no stage purported to transfer rights akin to ownership to developer, there would be no transfer of rights and no transfer of profit or gain would arise from such transfer of capital asset. 5. The learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rakhra (supra), judgment of the Apex Court in the case of CIT Vs. Balbir Singh Maini and the order of the Tribunal in the case of ACIT Vs. Smt. Sarojini M Kushe, and ACIT Vs. Shankar Vittal Motor Co. Ltd. He has also taken note of the guidance value as per the valuation done by Sub-Registrar of the property at ₹ 20 lakhs and since the assessee himself has shown the value at 37,60,000/-, the CIT(A) accepted the same. He has also taken a cognizance of the fact that assessee himself has offered profit from sale of constructed area received at ₹ 3,24,85,000/- on which tax was offered by assessee in the assessment years 2014-15 to 2016-17. The CIT(A) has examined the issue in detail in his order and for the sake of reference we extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea to be constructed on the scheduled property; C. Construction and handing over to the owners 50% basement, car parking units; D. Allotment of 50% of saleable garden/terrace area; E. Providing rent free accommodation as set out in clause (1.4). The exchange value in consideration of 50% of the land was agreed to be conveyed to the Developer and/or his nominee/s valued at ₹ 1,16,70,000/-. The fair market value as on 01-04-1981 as per the subregistrar valuation has to be taken into consideration. However, the Assessing Authority has not taken into consideration this aspect of the matter. Taking into consideration the project cost incurred by the developer on the basis of their letter dated 01-02-2004, which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment made by the AO on ₹ 2,86,00,000/- was held to be contrary to law and the issue was decided against the revenue. 1.9 In the light of the above referred decision of Hon'ble High Court, in the case of the appellant, the facts are that the appellant transferred the land through JDA and is to receive 10,000 sq.ft. of constructed space as a consideration. The appellant offered the sale consideration at ₹ 37,60,000/- being the exchange value and the said sale consideration is not specified in the JDA. The guidance value as per the valuation done by the sub-registrar for the property transferred is ₹ 20,00,000/- and accordingly, ₹ 37,60,000/- being higher of the two values, was taken as the sale consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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