TMI Blog2023 (12) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,00,000/- (Rupees Fifty Lakhs only) or a sum of Rs. 1,04,64,000/- (Rupees One Crore Four Lakhs Sixty Four Thousand only) as alleged by the Respondents. In view of the admission of this aspect by the Petitioner by virtue of oral submission and by virtue of filing of the additional affidavit, this Court is of the considered view that the Impugned Notice of the 1st Respondent dated 31.03.2022 as well as Impugned Assessment Order dated 29.03.2022 are liable to the set aside. Accordingly, the same are set aside. It is made clear that in the event if the petitioner takes a different stand in future that any of the Capital Gains arising out of the sale of the Thiruporur property has to be considered for Assessment Years 2017-18 in which case, the Respondents are at liberty to initiate proceedings against the Petitioner. Since, the matter is pending before the Appellate authority pertaining to the Assessment Year 2016-17, the Appellate authority shall consider this aspect with regard to the receipt of sale consideration and decide the same for the Assessment Year 2016-17. - Honourable Mr. Justice Krishnan Ramasamy For the Petitioner : Ms.Ashwini Vaidialingam For the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The sale of Tiruporur land was not the subject matter of these scrutiny proceedings. Thereafter, on 29.12.2018, the Respondent passed an Assessment Order under Section 143 (3) of the Act, for the Assessment Year 2016-17, recomputing the long term capital gains on the sale of the Besant Nagar land, by raising a demand of Rs. 23,22,268/- and the sale of Tiruporur land was not the subject matter of this order. Being aggrieved over the said order dated 29.12.2018, the Petitioner filed an Appeal before the Commissioner of Income Tax (Appeals), on 01.02.2019 and the same is still pending. (iii) While the matter stood thus, the 1st Respondent herein submitted a proposal to the Principal Commissioner of Income Tax-8, Chennai in respect of the Assessment Year 2016-17, stating that the long term capital gains computed in respect of the Tiruporur land was incorrect on the ground that the market value of the land was shown as Rs. 1,04,64,000/-(Rupees One Crore Four Lakhs Sixty Four thousand only). Pursuant to the said proposal, the Principal Commissioner of Income Tax-8, passed an order dated 27.03.2021, under Section 263 of the Act, by setting aside the Assessment Order dated 29.12.2018, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that the notice issued under Section 148 of the Act, for the Assessment Year 2017-2018 is without jurisdiction as there is no fresh tangible material and if at all any such material exists, it only exists for the Assessment Year 2016-2017. Therefore, he prays to quash the re-assessment proceedings in respect of the Assessment year 2017-2018, as the same transaction i.e., sale of Thiruporur land, is sought to be taxed twice i.e., for the Assessment Year 2016-2017 and also for the Assessment Year 2017-2018 and therefore as consequence of which, there is a dual taxation. It is his further contention that Show Cause Notice containing the draft assessment order was issued to the Petitioner on 27.03.2022 and thereafter impugned assessment order came to be passed on 30.03.2022, which is in violation of principles of natural justice. 3. The learned counsel for the Petitioner filed an affidavit dated 24.11.2023, wherein in paragraph 3, it is stated as follows: 3. I state that the issue forming subject matter of the appeal against the assessment order passed for AY 2016-17 is only with respect to the quantum of capital gains received in AY 2016-17 - i.e., the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney Holder of the assessee of Sri Hariprasad (PAN:ABMPH664PF), s/o Sri R.M.Jagannathan, it was mentioned that the assessee sold the impugned property to Sri R.M.Jaganathan, being her Power of Attorney Holder. However, as the sale deed was executed on 26.05.2016, the Capital Gains ought to have been computed for the AY 2017-18. Further, it is seen that the capital gains as admitted/determined in the AY 2016-17, is different from the above said property as the schedule of the above said property is No.25, Tiruppur Village Taluk, Kanchipuram Dist. Patta No.153, Survey No.125, extent 0.24 cents. Further, as seen from the sale deed dated 26.05.2016, the Market Value of the property as per the document No.6033/2016 is Rs. 1,04,64,000/- whereas it is seen from the return of income that the capital gains were shown at Rs. Nil only and the LTCG of Rs. 1,03,50,857 ought to have been adopted for AY 2017-18 as per Sec.50C of the IT Act as per working given below: Sale consideration : Rs. 1,04,64,000/- Less:Indexed cost of acquisition : Rs. 1,13,143/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of execution of Power of Attorney itself whether it is a sum of Rs. 50,00,000/- or Rs. 1,04,64,000/-. Since the sale consideration was received on 16.12.2015 itself, even assuming that the Department proceeded taking note of the market value of Rs. 1,04,64,000/- (Rupees One Crore Four Lakhs Sixty Four Thousand only), it should be for the year 2016-2017, alone and not for the Assessment Year 2017-2018 Therefore, the proceeding against the petitioner for the Assessment Year 2017-18 by virtue of impugned order, is not sustainable. 8. Considering the submission made by the learned counsel for the Petitioner as well as the learned Senior Standing Counsel appearing for the Respondents, this Court is of the considered view that since the petitioner has taken a stand that the entire amount of sale consideration was received on 16.12.2015 that would be the date for receipt of the sale consideration by the petitioner either for a sum of Rs. 50,00,000/- (Rupees Fifty Lakhs only) or a sum of Rs. 1,04,64,000/- (Rupees One Crore Four Lakhs Sixty Four Thousand only) as alleged by the Respondents. 9. In view of the admission of this aspect by the Petitioner by virtue of oral submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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