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2021 (9) TMI 860 - AT - Income TaxAssessment completed u/s.144 - assessment on the basis of incriminating materials unearthed at the time of search action in the premises of a third party - HELD THAT - In this case, it is the assessee. However, such is not the position since in the instant case before us, ADIT, Nashik had reported these informations to the Assessing Officer of the assessee and he is not the Assessing Officer of such searched party and hence, requirement of provisions of section 153C of the Act is not fulfilled in this case. When no return was filed by the assessee section 144(1)(a) of the Act was already triggered and therefore, the Assessing Officer has correctly resorted to complete assessment u/s.144 of the Act. We also find that in the non obstante clause in Section 153A of the Act, Section 144 is not mentioned. Thus, Additional ground No.1 raised in appeal by the assessee is dismissed. Capital gain computation - applicability of section 50C - Whether the provisions of Section 50C of the Act, were applicable only in respect of transfer of land or building and the same were not attracted in respect of transfer of development rights in land - HELD THAT - Assessee has not brought out any cogent reason or any logical basis for such determination of the fair market value. Alternatively, it was prayed by the Ld. AR for the assessee that the issue may be restore to the file of the Assessing Officer for fresh determination of the fair market value and that the assessee may be given another opportunity in this regard.DR did not raise any objection with regard to the submissions put forth by the Ld. AR of the assessee. We are of the considered view, in the interest of justice that the fair market value of the land has to be adopted on a reasonable basis and it must be reflected from the order of the Assessing Officer itself. Reasons behind such determination of the fair market value should be clearly spelled out in the order. Therefore, we set aside the order of the Ld. CIT(Appeal) on this issue and restore the same to the file of the Assessing Officer for adjudication as per law. Recalculate LTCG by applying provisions of Section 50C of the Act by adopting sale consideration as determined by DVO in his valuation report - HELD THAT - Admittedly, the assessee received only ₹ 36 lakhs which covered not only the consideration for transfer of development rights on 18.04.2006 but also for transfer of ownership rights in the year 2009. The year under consideration has only relevance with the transfer of development rights, in respect of which section 50C of the Act has been held supra to be not applicable. In that view of the matter, the computation of capital gain for the extant year has to be done u/s 48 of the Act sans provisions of section 50C of the Act. As regards the transfer of ownership rights in the year 2009, the capital gains on such transfer can be the subject matter of consideration by the AO only for such later year and not under the year in question. Thus, the ground No.1 taken in the Memorandum of appeal challenging the adoption of stamp value as full value of consideration is hereby allowed.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Validity of assessment under Section 144 versus Section 153C. 3. Applicability of Section 50C to the transfer of development rights. 4. Fair market value determination as of 01.04.1981. 5. Recalculation of Long-Term Capital Gains (LTCG) by adopting the sale consideration determined by the DVO. Detailed Analysis: 1. Condonation of Delay in Filing the Appeal: The assessee filed the appeal with a delay of 121 days, attributing the delay to the death of her husband, who managed the tax matters. The Tribunal condoned the delay, noting the absence of objections from the Revenue and the circumstantial nature of the delay. 2. Validity of Assessment under Section 144 versus Section 153C: The assessee argued that the assessment should have been completed under Section 153C due to the involvement of incriminating materials found during a search at a third party's premises. The Tribunal noted that the ADIT, Nashik, who reported the information, was not the Assessing Officer of the searched party. Hence, the requirements of Section 153C were not met. Consequently, the assessment under Section 144 was deemed appropriate since the assessee had failed to file a return. 3. Applicability of Section 50C to the Transfer of Development Rights: The Tribunal examined whether Section 50C, which applies to the transfer of land or building, was applicable to the transfer of development rights. The development agreement indicated that the ownership of the land remained with the assessee, and only development rights were transferred on a license basis. Citing legal precedents, the Tribunal concluded that Section 50C did not apply to the transfer of development rights. Therefore, the addition made by invoking Section 50C was incorrect. 4. Fair Market Value Determination as of 01.04.1981: The assessee contested the fair market value adopted by the Assessing Officer, claiming it was arbitrary. The Tribunal found that neither the Assessing Officer nor the assessee provided a cogent basis for their valuations. The Tribunal directed the Assessing Officer to re-determine the fair market value, ensuring the reasons for such determination are clearly spelled out, thus restoring the issue for fresh adjudication. 5. Recalculation of LTCG by Adopting Sale Consideration Determined by the DVO: The Tribunal noted that the development rights were transferred through an agreement in 2006, and the ownership rights were transferred later in 2009. Since Section 50C was not applicable to the transfer of development rights, the capital gains for the year under consideration should be computed under Section 48, excluding the provisions of Section 50C. The recalculation of LTCG based on the DVO's valuation was thus set aside. Conclusion: The appeal was partly allowed for statistical purposes, with directions for fresh adjudication on the fair market value determination and specific instructions on the computation of capital gains excluding the applicability of Section 50C for the transfer of development rights. The Tribunal's order emphasized adherence to legal provisions and principles of natural justice.
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