TMI Blog2020 (6) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... eal)-14, Kolkata, in appeal No. CIT(A)-14,Kolkata/40/2015-16, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 27/03/2015. 2. The grounds of appeal raised by the assessee are as follows: 1. For that in the facts and circumstances of the case the appellate order passed was in violation of principles of natural justice hence is bad in law and be quashed. 2. For that the observations and findings made in the appellate order were perverse and hence the same be quashed and/or no cognizance of the same be taken. 3. The Hon ble Appellate Commissioner in his impugned order confirmed the addition of a sum of ₹ 37,99,873/- which was added by the Assessing Officer as the business income during assessment which is bad in law as the appellant declared capital gains from the very inception of the joint development agreement. 4. For that the facts and circumstances the Appellate Commissioner erred in upholding addition made by ld. Assessing Officer of ₹ 37,99,873/- on account of business income. The addition is not called for and hence the same should be deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired land by way of gift from father Shri Prasnata Ganguly in F.Y. 1984-85. Copy of gift deed was submitted. The appellant had then entered into a Joint Development Agreement with M/s Maa Batai Chand Construction. On development of the land against the consideration of 38% of total constructed area the remaining 60% has to be invested with the developer. The copy of agreement was also submitted by the A/R of the appellant. These facts have not been denied by the AO in the assessment order. In a Joint Development Agreement (JDA) land owner contributes his land and enters into an agreement with the developer to develop and construct a real estate project at the developers cost. The key feature of JDA is that the land owner contributes land and developer undertakes the responsibility of obtaining approvals, property development, launching and marketing the project with his financial resources. The land owner may get consideration in the form of either: i) lump sum consideration ii) percentage of sales revenue iii) certain percentage of constructed area in the project, depending uponthe terms and conditions agreed upon between them. In this manner, the resources and effo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 5. Aggrieved by the order of the ld. CIT(A), the assessee is in appeal before us. 6. The ld. Counsel for the assessee relied on the written submissions furnished during the proceedings before ld CIT(A). Apart from this, ld Counsel submitted before us, copy of income tax return of the assessee for assessment years 2005-06, 2006-07 and 2007-08, and argued that assessee had already paid capital gain tax in assessment years 2005-06, 2006-07 and 2007-08, on account of joint development agreement therefore on the same income the assessee cannot pay the tax in assessment year 2012-13. He also filed intimation u/s 143(1) of the Act received from the department for assessment years 2005-06, 2006-07 and 2007-08. 7.On the other hand, the ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and the same is not being repeated for the sake of brevity. 8. We heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06, and 2006-07. That is, while adjudicating the issue, the ld CIT(A) ignored the important submission of the assessee that he had already paid the taxes on long term capital gain(LTCG) in preceding years viz:2004-05, 2005-06, and 2006-07, and therefore the assessee need not to pay the taxes on the same income again in assessment year 2012-13. 9. Before us, ld Counsel submitted the copy of the Income Tax Return for the previous year 2004-05 relevant to assessment year 2005-06 wherein the assessee had declared long term capital gain to the tune of ₹ 16,85,405/-(paper book pg.No.1). The Income Tax Return for the assessment year 2005-06 was processed by the Income Tax Department under section 143(1) of the Act and the Department accepted the long term capital gain of ₹ 16,85,405/- declared by the assessee. The ld Counsel also submitted the copy of the Income Tax Return for the previous year 2005-06 relevant to assessment year 2006-07 wherein the assessee had declared long term capital gain to the tune of ₹ 19,39,857/-(paper book pg.No.4). The Income Tax Return for the assessment year 2006-07 was processed by the Income Tax Department under section 143(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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