TMI Blog2020 (12) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... atter in his impugned order. As rightly contended by the ld. D.R., this issue thus has not been considered and decided either by the Assessing Officer or by the ld. CIT(Appeals) on merit by examining/verifying the terms and conditions of the relevant development agreement. Since the same goes to the root of the matter, we consider it fair and proper and in the interest of justice to send it back to the Assessing Officer for such examination/verification. The impugned order of the ld. CIT(Appeals) is accordingly set aside and this matter is restored to the file of the Assessing Officer for deciding the same on merit as relying on INFINITY INFOTECH PARKS LIMITED [ 2018 (9) TMI 111 - CALCUTTA HIGH COURT] Valuation report prepared by the DVO u/s 55A - Assessing Officer is accordingly directed to re-compute the long-term capital gain chargeable to tax in the hands of the assessee after taking into consideration the valuation report of the DVO dated 20.05.2019 and after giving the assessee proper and sufficient opportunity of being heard. - I.T.A. No. 2626/KOL/2019 - - - Dated:- 12-8-2020 - P. P. Bhatt, J. (President) And P.M. Jagtap, Vice President For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the perusal of the said data, the Assessing Officer noted that the cost of one Katha of land in the same area was about ₹ 11,250/-. Accordingly he worked out the cost of assessee's land as on 01.04.1981 at ₹ 9,94,725/- and the indexed cost of acquisition at ₹ 1,07,52,977/- as against ₹ 21,98,38,646/- claimed by the assessee. When this indexed cost of acquisition determined by him on the basis of the sale instances received from ADSR, Siliguri was confronted by the Assessing Officer to the assessee, the latter raised the following objections:- (1) Value of land has been done of same area and not particular of my land. (2) Basis of valuation of land has not been disclosed. (3) Evidences upon which has relied by ADSR for value of land has not been disclosed. (4) Facts and classification of land whether agricultural, bastu, commercial, industrial etc. under which facts the value of land has been determined by the ADSR, Siliguri was not disclosed. (5) Surrounding situation of land for value has not been revealed by the ADSR, Siliguri. (6) Width of road, demand and approximate surroundings of land for which value has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace upon the possession of the relevant flat being made over to the assessee by the developer No flat or constructed area has been transferred by the developer during the year and mere development agreement has been executed during the assessment year. That chargeability to income tax under the Head CAPITAL GAINS operates on any profits or gains arising from the transfer of capital assets u/s. 45(1) of the Act only and as there is no profit or gain just by executing development agreement, so, the assessee is not liable to pay any capital gain tax. The judgment of Hon'ble High Court of Calcutta in case of PCIT-vs.-Infinity Infotech Parks Ltd. Reported in 307 CTR 105 squarely apply to our case. A copy of judgment is enclosed herewith and marked as Annexure-5 for ready reference . 4. The submission made by the assessee did not find favour with the ld. CIT(Appeals), who proceeded to confirm the action of the Assessing Officer in determining the long-term capital gain chargeable to tax in the hands of the assessee at ₹ 2,16,48,185/- for the following reasons given in paragraph no. 4 of his impugned order:- 4. I have perused the assessment order, grounds of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition of land sold as per the value determined by the DVO . 6. We have heard the arguments of both the sides and also perused the relevant material available on record. In support of the issue raised in Ground No. 1, the ld. Counsel for the assessee has submitted that the agreement entered into by the assessee on 16.12.2015 with M/s. Radiant Nirman Private Limited for development of her land did not result in any transfer of the said immovable property within the meaning of section 2(47)(v) of the Act and the execution of the said development agreement, therefore, did not give rise to any capital gain, which was chargeable to tax in the hands of the assessee during the year under consideration. In support of this contention, he has relied on the decision of the Hon'ble Calcutta High Court in the case of PCIT-vs.-Infinity Infotech Parks Limited [307 CTR 105]. It is, however, observed that the assessee herself had declared long-term capital loss in her return of income for the year under consideration as arising as a result of the execution of the development agreement with M/s. Radiant Nirman Pvt. Limited on 16.12.2015 and even during the course of assessment proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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