9911796707
TMI Blog2019 (1) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... d escaped assessment. Consequent thereto, notice u/s 148 of the Act was issued to the assessee on 20.01.2012. The assessment was concluded u/s 143(3) of the Act vide order dated 25.03.2013 wherein the assessee's income was determined at Rs. 26,67,100/- in view of the assessee's 19.87% share in the LTCG amounting to Rs. 23,37,970/- arising on account of JDA in respect of the aforesaid New Thippasandra property. On appeal, the CIT(A) dismissed the assessee's appeal vide order dated 19.09.2016. 2.2. On further appeal by the assessee, a co-ordinate bench of this Tribunal, in its order in ITA No.167/Bang/2017 dated 05.05.2017, remanded the matter to the file of the AO for consideration and adjudication on the issue of validity of re-opening of assessment as well as other grounds, modified/additional grounds of appeal raised on merits, holding as under at para 7 thereof: "7. We have considered the rival submissions as well as the relevant material on record. In support of his contention that the Assessing Officer has not supplied the reasons recorded for reopening of the assessment despite a specific request made by the assessee. He has also filed an Affidavit dt.7.3.2017 wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for re-opening the assessment for Assessment Year 2008-09 can be treated as the reasons for re-opening the assessment have been communicated to the assessee and therefore upheld the validity of the order of assessment. On merits, the CIT(A) confirmed/followed the findings of his predecessor in the first round of appeals and consequently dismissed the assessee's appeal vide the impugned order dated 31.10.2018. 3. Aggrieved by the order of the CIT(A)-4, Bangalore, dated 31.10.2018, for Assessment Year 2008-09, the assessee has preferred this appeal before the Tribunal wherein he has raised the following grounds: 1. The order of the learned Commissioner of Income-tax [Appeals] passed under Section 250 r.w.s. 254 of the Act in so far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. Grounds on jurisdiction on re-opening of assessment u/s. 148 of the Act. [i] The learned Commissioner of Income -Tax [Appeals] failed to appreciate that the assessment order passed u/s. 147 rws 143[3] of the Act is bad in law and void ab initio in as much as the reasons recorded were not communicated to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciate that no possession was handed over to the developer in the impugned assessment year on the facts and circumstances of the case. 4. Without Prejudice, whether the assessing officer was justified in taking cost of construction of the developer as the full value of consideration of land on the facts and circumstances of the case. i) The CIT [A] erred in confirming the assessment order wherein the cost of construction as per the developer at Rs. 1139 per Square feet was considered and consequently, arriving at the sale consideration of land of the Appellant at Rs. 24,14,827/- on the facts and circumstances of the case. ii) The learned CIT [A] was not justified in confirming the order of the learned assessing authority who adopted the cost of the super built up area of the owner's constructed portion as per the developer as the full values of sale consideration on the facts and circumstances of the case. iii) Without Prejudice, the learned CIT [A] erred in not considering guideline value of the land as the sale consideration in the computation of capital gains on the facts and circumstances of the case. iv) Without further Prejudice, the authorities below oug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed in the interest of equity and justice. 4. Ground Nos. 1 and 8 to 10, being general in nature and not urged, are dismissed as infructuous. 5. Ground No. 7 - Charging of interest u/s 234A and 234B of the Act 5.1 In this ground (supra), the assessee denies himself liable to be charged interest u/s 234A and 234B of the Act. The charging of interest is consequential and mandatory and the AO has no discretion in the matter. This proposition has been upheld by the Hon'ble Apex Court in the case of Anjum H. Ghaswala (252 ITR 1) (SC) and I, therefore, uphold the action of the AO in charging the assessee the aforesaid interest u/s 234A and 234B of the Act. The AO is, however, directed to re-compute the interest chargeable u/s 234A and 234B of the Act, if any, while giving effect of this order. 6. Ground No. 3: Transfer as per section 2(47)(v) of the Act 6.1 In this ground (supra), the assessee contends that the authorities below failed to appreciate that there was no event of 'transfer' as defined in section 2(47)(v) of the Act in the case on hand as no possession was handed over to the developer after entering into the JDA and therefore there was no question of capital gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich he wrongly attempted to distinguish. Rather, the CIT(A) ought to have applied the principles laid down in the decision of the Hon'ble Jurisdictional High Court in the case of Smt. K. G. Rukminiamma (supra) and allowed the assessee exemption u/s 54/54F of the Act for the two flats / units. It is the contention of the learned AR that the Hon'ble Karnataka High Court in the aforesaid decision (supra) has held that the meaning of "a residential house" in section 54 of the Act meant that the assessee is entitled to exemption in respect of multiple units in the same residential building/complex. In view of the above, it is submitted by the learned AR that the aforesaid decision of the Hon'ble Karnataka High Court in the case of CIT Vs. Smt. K. G. Rukminiamma (2011) 331 ITR 211 (Kar) squarely applies on all fours to the assessee in the case on hand on both facts and in law and it is therefore prayed that the assessee be granted exemption u/s 54/54F of the Act in respect of all units i.e., the 2 flats in the same residential building/complex received by the assessee in terms of the JDA. In this regard, reliance was also placed on the decision of the co-ordinate bench of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the assessee's claim for exemption u/s 54F of the Act; holding as under at para 11 thereof: "11. We have given careful consideration to the rival submissions. We find that the facts of the Assessee's case are similar to the case of Smt.K.G.Rukminiamma (supra) decided by the Hon'ble Karnataka High Court. In the case of K.G.Rukminiamma, the facts were on a site measuring 30' x 110' the assessee had a residential premises. Under a joint development agreement she gave that property to a builder for putting up flats. Under the agreement 8 flats are to be put up in that property and 4 flats representing 48% is the share of the assessee and the remaining 52% representing another 4 flats is the share of the builder. So the consideration for selling 52% of the site was 4 flats representing 48% of built up area and the 4 flats are situated in a residential building. The Court held that the 4 flats constitute 'a residential house' for the purpose of sec 54. The 4 residential flats cannot be construed as 4 residential houses for the purpose of sec 54. It has to be construed as "a residential house" and the assessee is entitled to the benefit accordingly. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old and the Long Term Capital Gain on such sale was used to buy two independent residential houses. This aspect has been noticed by the Hon'ble Court in paragraph 15 & 16 of the judgment in the case of Khubchand M.Makhija (supra) wherein the distinguishing facts between the facts of K.G.Rukminiammal(supra) and the facts of the case Khubchand M.Makhija (supra) were brought out by the Hon'ble Karnataka High Court. In the present case all the 13 flats were situate in the same premises and, therefore, the decision rendered in the case of Smt. K.G Rukminiamma (Supra) will apply. In the light of above judicial pronouncements on identical facts and circumstances of the case of the assessee we are of the view that the Assessee is entitled to deduction u/s.54F of the Act on all the 13 flats and there was no capital gain chargeable to tax in the hands of the assessee. We hold and direct accordingly and allow the appeal of the Assessee." 7.3.4 In the factual and legal matrix of the case, as discussed above, and respectfully following the decisions of the Hon'ble Karnataka High Court in the case of CIT Vs. Smt. K. G. Rukminiamma (supra); of the Hon'ble Madras High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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