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TMI Blog2023 (6) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... section 147 read with section 143(3) of the Act, for the assessment year 2009-10. 2. In this appeal, the Revenue has raised the following grounds:- "I. On the facts & circumstances of the case, the Ld. CIT(A) erred in holding that the AO has made addition u/s 50C of the Income Tax Act, 1961, whereas the addition made by the AO is under section 28 under the head Profit and gain of business or profession. II On the facts & circumstances of the case, the Ld. CIT(A) erred in holding that the transfer of developmental rights are not covered u/s 50C whereas AO has treated the transfer of rights as taxable u/s 28 of the Act and not u/s 50C of the Act. III On the facts & circumstances of the case, the Ld. CIT(A) erred in not considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and M/s Reodar Builders Private Ltd is 30% and 70%, respectively. Vide Joint Venture agreement dated 01/04/2008, and Deed of Confirmation dated 24/08/2008, the assessee and the above company transferred respective development rights in respect of Plot No. 41 & 40A (South) of the Sewree Wadala Estate of the Municipal Corporation of Greater Mumbai and C.S. nos. 1007 and 1008 (part) of the Dadar Naaigam Division, Wadala, Mumbai admeasuring 5877.74 sq.m to the Joint Venture concern for the sale consideration of Rs.65 lakh. On receipt of information from Addl. DIT(I&CI), Unit-1, Mumbai, it came to light that Stamp Duty Authorities has considered the sale consideration of the said transfer at Rs.41,08,20,500, for stamp duty purpose, and accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration of properties transferred, as the market value i.e. Rs.41,08,20,500 (as determined by the Stamp Duty Authorities) is more than the value of Rs.65 lakh in the agreements. 7. On the basis that the assessment is getting barred by limitation, the AO passed the assessment order on 19/12/2016, under section 147 read with section 143(3) of the Act assessing the total income of the assessee at Rs. Nil, subject to the receipt of the report from the DVO for determination of the taxable profits of the assessee in respect of the above transaction. The AO further held that the fair market value so determined by the DVO will be adopted to compute the taxable profits of the assessee. The AO also held that if the report of the DVO is not receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this order, the assessee filed an appeal before the learned CIT(A) on 14/09/2017, which resulted in the impugned order dated 31/08/2018 in the present appeal. The learned CIT(A) vide impugned order, inter-alia, held that the second assessment order is null and void. Being aggrieved, the Revenue is in appeal before us. 10. Therefore, from the above, it is sufficiently evident that firstly, the AO has passed two assessment orders under section 147 read with section 143(3) of the Act on the basis of the very same reassessment notice dated 31/03/2016 issued under section 148 of the Act. Even the reasons recorded by the AO while reopening the assessment and necessary approval/sanction from the Pr.CIT-17, Mumbai are also the same. Secondly, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso to section 147 of the Act, as it stood at the relevant time, reads as under:- "Provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment." 13. As noted above, the assessee in its appeal against the first assessment order dated 19/02/2016, passed under section 147 read with section 143(3) of the Act, had challenged the taxability of the receipts from the transfer of the development rights before the learned CIT(A). Further, the assessee also challenged the reference to DVO to determine the actual sale consideration of properties. Therefore, the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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