TMI Blog2019 (12) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... % of undivided portion of the land, against which, consideration was held to be 60% of the constructed area. After noting that the assessee had shown the capital gains on the basis of individual sale deeds executed in favour of the nominees of the developer, it was held that it cannot be stated that the assessment order stood merged with the appellate order because the said issue was never raised by the assessee in order to be decided by the appellate authority. Assessees cannot plead a case that there has been a change of opinion and that the rules of consistency had been violated. The CIT (A) has elaborately dealt with this aspect and we concur with the view taken by the CIT(A), which was confirmed by the Tribunal. Thus, for all the above reasons, we find that the Assessing Officer has not traveled beyond the reasons, for which, the assessment was re-opened and there is no contra view of the Assessing Officer for two assessment years i.e., 1996-97 and 2000-01 as it is reiterated that at no point of time, there was discussion on the merits of the matter as to what is the actual date of transfer. Furthermore, we have also brought out the factual position to show that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire capital gains was taxable in A.Y.2000-01, when there was no transfer in respect of the entire land either u/s.2(47)(v) or section 45 of the Income Tax Act, 1961? 5) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that the CIT(A) had given direction to modify the assessment order for all the assessment years by deleting the sum assessed by way of Long Term Capital Gains and accordingly to re-compute the taxes payable and there was no double taxable of the capital gains? 6) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not holding that the Assessing Officer having held that the capital gains was taxable in the A.Y.1996-97 in terms of Section 2(47)(v), was precluded from assessing the same in A.Y.2001-02 on the basis of receipt of the consideration? 3. The facts, which would be necessary for the disposal of these appeals, are culled out as hereunder: - The appellant/assessees are Hindu Undivided Families, which owned properties at Chennai. Both the assessees entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year under consideration, namely, 2000-01, the assessees filed their returns of income on 29.12.2000 admitting an income of ₹ 13,83,085/-, which included capital gains in respect of the undivided share of the land that was sold during the previous year relevant to the assessment year 2000-01. An intimation under Section 143(1) of the Act was issued on 13.03.2002 and subsequently, by notice dated 25.03.2004, the assessment was re-opened under Section 147 of the Act. The reason assigned was that the entire capital gains in respect of 40% of the undivided share in the land was to be brought to tax. The objection filed by the assessees were not accepted and an order was passed on 11.03.2005 by treating ₹ 95,44,610/- as long term capital gains. Aggrieved by the same, the assesses preferred appeals before the CIT(A) in ITA Nos.3 and 6/2005-06. By a common order dated 30.11.2005, the CIT(A) upheld the decision of the Assessing Officer in respect of bringing to tax the entire capital gains during the year 2000-01. 7. Aggrieved by the same, the assessees preferred appeals before the Income Tax Appellate Tribunal, Chennai, which were dismissed by commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the assessees referred to various clauses in the General Development Agreement between the assessees and the developer and submitted that the effect of a substantive assessment cannot be changed or altered and that this came to be done based on a mere change of opinion which is unsustainable in law. 12. In this regard, learned counsel for the assessees placed reliance on the decisions of the Honourable Supreme Court in the case of CIT Vs. Kelvinator India Ltd. [reported in (2010) 320 ITR 561] and ITO v. Techspan India P. Ltd. [reported in (2018) 404 ITR 10] , which were referred to in W.P.No.7416 of 2017 dated 04.10.2018 [MBI Kits International Vs. ITO] as confirmed by us in W.A.No.200 of 2019 vide judgment dated 24.06.2019. With regard to the aspect i.e. what is the effective date of transfer, reliance was placed on the decision in Shrip. P.Madhusudhan Vs. ACIT in TCA.No.1986 of 2008 dated 11.06.2019. Thus, in the light of the above submission, the learned counsel prays for setting aside of the common order passed by the Tribunal. 13. Ms.V.Pushpa, learned Junior Standing counsel for the respondent - Revenue pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order dated 23.03.2004 for the assessment year 2001-02. It is submitted that in the said order, the Assessing Officer held that notwithstanding the stand taken on the issue of liability to capital gains, which were brought to tax in the assessment year 1996-97, the capital gains admitted by the assessee in the assessment year 2001-02 were assessed on protective basis. It is submitted that when the assessees challenged the re-assessment order for the year 1996-97 dated 23.03.2004 and the protective assessment for the year 2001-02 dated 23.03.2004 by way of appeal, the CIT(A), by a common order dated 27.08.2004 allowed the appeals and set aside the re-assessment proceedings dated 23.03.2004. The CIT(A), while concluding that the re-assessment proceedings dated 23.03.2004 for the assessment year 1996-97, were bad in law on account of technical non-compliance, confirmed the protective assessment for the year 2001-02 as a regular assessment and therefore, the re-opening cannot be done. 18. Though the submission of learned counsel for the assessees appears to be convincing at the first instance, on a closer scrutiny, the result to be arrived at is otherwise. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 1996-97 had been annulled, the assessment for the assessment year 2001- 2002 has to be held as substantive one'. 19. After taking note of the common order passed by the CIT(A) dated 27.08.2004, it was held by the CIT(A) in the orders dated 30.11.2005 that the assessment for the year 2001-02, which was directed to be treated as substantive, was not on merits and it was only in the present appeals before the CIT(A), what was sought to be decided was as to the effective date of transfer. We have also gone through the order dated 23.03.2004 for the assessment year 2001-02 and we find absolutely no discussion on the merits of the matter. Therefore, there was no effective adjudication as to what would be the effective date of transfer while deciding the correctness of the reassessment for the year 1996-97 while making protective assessment for the year 2001-02. Therefore, we fully agree with the view taken by the CIT(A) that there was no discussion on merits on the effective date of transfer. Further, the CIT(A), after elaborately considering the terms of agreement, was right in concluding that the transfer came to be actually completed during the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ominees of the developer. Thus, we fully agree with the finding of the Tribunal that the assessees did not come out clearly as to when the actual transaction took place. 21. Further, the learned counsel for the Revenue pointed out that the assessees, in their letter dated 01.02.2006 to the Assistant Commissioner of Income Tax, Circle -XIV, Chennai, has taken yet another contrary stand by filing an application under Section 154 of the Act for the assessment year 2001- 02 stating that such assessment should be rectified in line with the decision taken for the assessment year 2000-01. 22. As already held by us, the assessees cannot plead a case that there has been a change of opinion and that the rules of consistency had been violated. The CIT (A) has elaborately dealt with this aspect and we concur with the view taken by the CIT(A), which was confirmed by the Tribunal. Thus, for all the above reasons, we find that the Assessing Officer has not traveled beyond the reasons, for which, the assessment was re-opened and there is no contra view of the Assessing Officer for two assessment years i.e., 1996-97 and 2000-01 as it is reiterated that at no point ..... 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