9911796707
TMI Blog2020 (6) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... t") 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 Rs. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et for different years, it is further observed that his nature of activity is investment in Land, construction building through contractor thereon and then selling of Flats to the customers and further investment thereafter in land and construction thereon. Assessee is not entitled to any exemption u/s. 54 as such as will be obvious from the affairs relating to land & property. The claim of income under Long term capital gain and so the exemption u/s 54 is thus, liable to be forfeited." 4. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has confirmed the addition made by the Assessing Officer observing the following: "7.3. I have considered the submission of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een them. In this manner, the resources and efforts of land owner and developer are pooled together. In such an arrangement execution of JDA between the owner of the immovable property and the developer gives the rise to capital gains tax liability in the year in which immovable property is handed over to the developer for development of project. The receipt of consideration (Share of Constructed area or Share revenue) in future does not affect the timing of the taxable event. However, with effect from 01.04.2018 in order to mitigate hardship to the assessee the Finance Act 2017 had inserted sub section (5A) which provide that in case assesse's being individual or HUF which enters into a specified agreement for development of project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down in the section 54. Since, no capital gains were declared in 2001-02 the appellant cannot claim benefit of capital gains in 2012-13. This ground of appeal fails and, therefore, is not allowed." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding agreement already submitted) 3. Out of his total share of 12345 sq ft, he has kept 3938 sq fit for his own use i.e. 3rd floor Block A along with garden and garage at Gr floor, details attached in Annexure-A. 4.The possession of owners share was given by developer in phases in the year 2004-05, 2005-06, and 2006-07. The assessee has paid LTCG on the portion which was handed over to him by the developer in the year of possession. 5. During the A.Y. 2012-13, the assessee has sold a part of his self occupied portion (2228 sq ft) and also other flats to various buyers. As the period of holding was more than 3 years there was a LTCG on transfer of these flats. 6.During the year the assessee purchased/booked other residential prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the long term capital gain of Rs. 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 Rs. 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 the Act and the Department accepted the long term capital gain of Rs. 19,39,857/- declared by the assessee. We noticed from the Income Tax Return filed by the assessee, as mentioned above, that the assessee had already declared capital gain in the preceding previous years on the basis of the Joint Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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