TMI Blog2018 (11) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed building. The main part of consideration i.e. value of constructed portion to be received by the assessee, was definitely in future. In such circumstances, where the assessee though had parted with the possession of property for the purpose of development of the said project and had also received so-called consideration for the property, but had not received the main part of consideration i.e. constructed flats, then such a transaction of entering into Development Agreement would not make the assessee liable to pay capital gains tax on entering into such Development Agreement. The said transaction does not amount to transfer under section 2(47) of the Act and in the absence of the same, the assessee is not liable to pay capital gains tax under section 45. No capital gains has arisen in the hands of assessee on the date of entering into Development Agreement and the computation of long term capital gains in the hands of assessee is not warranted, since the property has not been developed and the assessee has not received constructed portion which is allocated to her share. In such circumstances, order of CIT(A) is reversed and hold that there is no merit in assessing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified in rejecting the claim of the assessee being Manager/Karta of the HUF. By virtue of the new provisions of the Hindu Law a daughter of a co-parcener could also become Karta of the HUF. This is also the opinion of Law Commission expressed in its 174th Report there is no reason why they could be deprived of the right and privilege of managing HUF as their Karta. The Ld. CIT(A) was required to accept the proposition put before him. It be held accordingly. 5) On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified, in response to arguments of the assessee, that the Karta should be only male member of the family and thus a woman could never be a de jure karta of HUF. This runs counter to the judicial opinion and Law Commission Report. It be held accordingly. 6) On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified in assessing the Long Term Capital Gain in the hands of the assessee but it should have been assessed in the hands of the members independently as claimed due to partition/family arrangement. 7) On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving separately from father and mother. The partition was made in the year 2000 and as on 01.10.2011, the assessee and her sons and daughters had entered into Agreement for Development of the said house with the builder and hence, the names of other members were as consenting parties in the Development Agreement. The plea of assessee was not accepted and the Assessing Officer held that the said property was exclusively held by the assessee. Therefore, the income from long term capital gains on transfer / relinquishment of rights of capital assets to the developer arose in the hands of assessee in her individual capacity, hence income from capital gains was assessed in the hands of assessee. 5. The CIT(A) has upheld the order of Assessing Officer on both the issues. 6. The assessee is in appeal against the order of CIT(A). 7. The ground of appeal No.1 raised by the assessee is against assessability of income from capital gains in the year under appeal i.e. the year in which the assessee had entered into Development Agreement and had not sold the property. The second issue which is raised by the assessee vide grounds of appeal No.2 to 6, wherein the plea of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lop the said property in accordance with construction permission at their own cost, expenses, risk and responsibility. The developer would be entitled to obtain and modify the approved construction permission and building plans with due permission of the Competent Authorities. The developer had to develop at his own cost. By executing agreement, the owner granted to the developer license to enter upon the said property as bare licensee for enabling them to develop the said property and accordingly, handover the vacant possession of the said property, as per clause (4) of the Agreement. It was also agreed that the owner and the developer shall jointly own the portion of the developed property, under which developer was constructing ground + four storied building over the said plot of land. The said Development Agreement was executed on 01.10.2011. The assessee is in appeal for assessment year 2012-13 i.e. the financial year in which the Development Agreement was entered into between the parties. At the time of entering into Development Agreement, the assessee received only sum of ₹ 5,50,000/- which was though called as entire consideration amount, was actually part of consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
