TMI Blog2022 (8) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Coordinate Bench of the Tribunal in the case of K. Vijaya Lakshmi [ 2018 (3) TMI 138 - ITAT HYDERABAD] held that the provisions of section 45(5A) cannot be applied retrospectively. Similarly, following the decision of the Hon'ble A.P High Court in the case of Potla Nageswar Rao [ 2014 (8) TMI 636 - ANDHRA PRADESH HIGH COURT] where it has been held that the transfer is complete on the execution of the JDA, he held that the assessee is liable to capital gain tax in the impugned A.Y i.e. A.Y 2016-17 when the Jt.Development Agreement was entered into between the assessee and M/s. Dhanush Builders developers for development of the property. We do not find any infirmity in the order of the learned CIT (A) on this issue. Since the learned CIT (A) in his detailed order has decided the issue regarding the year of taxation of the capital gain and also the manner in which the capital gain should be computed which is based on the decision of the jurisdictional High Court and the Coordinate Bench of the Tribunal. Therefore, we do not find any infirmity in the order of the learned CIT (A) in dismissing the grounds raised before him. Accordingly, the grounds raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to which the fair market value of the land as on 01.04.1981 was Rs.10,000/- per acre. He noted that in this case the transfer of property was in square yards. In the absence of information, he computed the fair market value of the transferred property i.e. 791 square yards proportionately at Rs.1,648/- (10000/4800 X 791). Basing on the information available, he computed the capital gains as under: Consideration on transfer of property (being 40% of the project as discussed in the order) Rs.1,08,20,000 Indexed cost of acquisition as discussed in the order 1648 X 711/100 Rs. 11,717 Long Term Capital Gains (LTCG) Rs.1,08,08,283 4. Before the learned CIT (A), the assessee challenged the addition of Rs.1,08,08,283/-on account of Long Term Capital Gain. The assessee also submitted that the capital gain cannot be added in the impugned A.Y since she didn t get the possession of the flats during the impugned A.Y. It was submitted that the capital gain would be admitted in the A.Y relevant to the previous year in which the possession of the flat is handed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice the decision of the Supreme Court in the case of Jai Hind Cycles to the effect that it does not lay down any law as no question was framed and thereby erred in holding that the year of assessability is the year in which development agreement is entered into. 5. (Tax effect - Rs.33,39,760). For these and other grounds that may be urged, it is prayed that the Hon'ble Tribunal may be pleased to allow the appeal. 6.1 Additional Grounds: On the facts and circumstances of the case, the authorities below has erred in not considering the deduction claimed u/s.54F of the Act which was claimed in the return of income 7. Referring to the decision of the Hon'ble Supreme Court in the case of NTPC Vs. CIT reported as (1998) 229 ITR 383, the learned Counsel for the assessee submitted that the additional ground being a legal ground and do not require fresh investigation of facts should be admitted for adjudication. 8. The learned DR, on the other hand, opposed the admission of the additional ground stating that it is not a legal one and requires verification of fact. He drew the attention of the Bench to the report of the Assessing Officer on admission of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Agricultural Income Rs.2,31,250/- Further on verification of Schedule CG of the ITR it is found that the assessee has not filed any detail of transfer of capital asset and not claimed any exemption u/s 54F of 1T Act. 1961. The copy of ITR enclosed herewith for ready reference. Subsequently, the assessee filed return of Income claiming it as Original against the notice Issued u/s 142(1) dated 30 11 2018 vide Ack No 393032940231218 dated 23 12 2018 declar1ng following income particulars: (i) Profit or gains from business/ Profession Rs 30.000/ (ii) Income from Long Term Capital Gain.. Rs. 54.27.033/- (iii) Income from Other Sources .. Rs.3,36,886 (iv) Gross Total Income - Rs 57,93, 919 (v) Agricultural Income - Rs 2,31,250 Further. on verification of Schedule CG of the ITR, is found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al arguments made by both sides regarding the admissibility of the additional ground. We find the additional ground raised by the assessee is not a legal ground, but it requires verification of facts especially when the assessee during the course of assessment proceedings had categorically stated before the Assessing Officer that the assessee has not made any investment in movable or immovable asset during the financial year 2015-16. Therefore, the additional ground raised by the assessee, being not a legal one, but requires verification of facts, the additional ground raised by the assessee is liable to be dismissed. Accordingly, we dismiss the additional ground raised by the assessee. 10. The learned Counsel for the assessee strongly challenged the order of the learned CIT (A) in confirming the action of the Assessing Officer. He submitted that the first question that has to be adjudicated in the instant case is that for the purpose of computation of capital gain whether the date of development agreement or the date of delivery of the flats are to be considered and the 2nd question that arises is regarding the bifurcation of the composite value of the land and building. So far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CIT (A) on the issue of computation and or taxability of capital gain and submitted that the learned CIT (A) in his detailed order has rejected the claim of the assessee. His decision is based on the decision of the ITAT Hyderabad Bench in the case of Smt. K. Vijaya Lakshmi (Supra) where it has been held that provision of section 45(5A) cannot be applied retrospectively. 13. Further, the Hon'ble A.P High Court in the case of Potla Nageswara Rao (Supra) has held that transfer is complete on the execution of the JDA and thus was liable to be taxed in the impugned A.Y. He accordingly submitted that the order of the learned CIT (A) being based on the basis of the decision of the jurisdictional High Court and jurisdictional Tribunal, the grounds raised by the assessee should be dismissed. 14. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the assessee in the instant case has entered into a Joint Development Agreement cum-GPA with M/s Dhanush Builders Developers for developme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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