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TMI Blog2021 (9) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... th these appeals, the same were clubbed and heard together and therefore, a common order is passed for the sake of convenience. The decision taken in ITA No. 848/Hyd/2019 mutatis-mutandis shall apply to ITA No. 849/Hyd/2019. 1.1 The grounds raised in both the appeals are common, therefore, the grounds raised in AY 848/Hyd/2019 are as under: "1. The Ld.CIT(A) erred both in law and on facts of the case. 2. The Ld.CIT(A) failed to appreciate the fact that at the time of completion of assessment, there was only one Registered JDA dated 12-07-2012 which was irrevocable and binding on all the parties including their heirs, executors, administrators, legal representatives etc. 3. The Ld.CIT(A) ought to have appreciated the fact that the dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment agreement (in short "JDA") with M/s Shanta Sriram Constructions Pvt. Ltd., in connection with the land at Gachibowli in June, 2008, which was subsequently cancelled on 25/06/2012. Again a fresh JDA LLP was entered into on 12/07/2012 and also got registered. As per this agreement assessee's share with her son Sri Samuel Rajkumar Patta and daughter Smt. Ayesha Magdalene is shown at 42.5% instead of 50% as per earlier agreement. Since the assessee did not offer capital gains on the above JDA dated 12/07/2012, the AO issued a show cause notice dated 22/02/2015 requesting her explanation as to why she did not offer capital gains in her hands on account of the above JDA and also to explain as to why the same should not be computed and tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eveloper has not applied for plan approval nor any plan got approved. The developer has no intention to carry on the development as per the agreement. Further, the assessee has cancelled the JDA and cancellation deed has been entered into on 30.03.2016. After that the assessee entered into a fresh JDA on 29.04.2017. The AO's contention is that the cancellation deed and subsequent agreement are entered into after the assessment order was passed and it is an after thought. On consideration of the above, it is seen that there is no development under taken by the developer as contemplated in the assessment. This fact has not been disputed/ contradicted by the AO. Further, in the new JDA, dt.29.04.2017, new partner is admitted and associated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO should be given liberty to invoke capital gains as per the fresh JDA executed on 29/04/2017. 6. The ld. AR, on the other hand, filed a paper book containing 01 to 304 and another paper book containing written submissions. Besides relying on the order of CIT(A), the ld. AR submitted that since 2008 there was no activity regarding construction and no estimate obtained for the completion of the development property and no construction activity was undertaken by the developer. He further stated that the JDA was executed on 01/06/2008 with the same property and no capital gain tax assessment was made by the AO. In the impugned assessment year, the JDA was got cancelled without any efforts done by the developer. Therefore, the capital gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hands of the assessee, we dismiss the grounds raised by the revenue on this issue. The JDA executed on 29th April, 2017 which was materialized and as we have decided the issue against the revenue cited "supra", therefore, in the interest of justice we give the following direction: "The AO is directed to take necessary action for determining the capital gains on impugned property in the respective year/years. This particular direction is being issued in terms of sec. 150 of the Act and, therefore, the limitation stipulated u/s 149 of the Act is not applicable for reopening the assessment u/s. 147 of the Act. In this regard, the reliance is placed on the following decisions: 1) B.A.R. Abdul Rehman Saheb Vs. ITO (1975) 100 ITR 541 (AP) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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