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TMI Blog2010 (11) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... section is not satisfied - The CIT(A) found that the correct head under which the income from sale of TDR has to be assessed is Capital Gain he also found that the claim for deduction u/s.54 and 54EC as made to the assessee was correct - It was for the first time by this Miscellaneous Application that the Revenue has sought to raise a plea that the conditions for allowing deduction u/s.54 were not satisfied - such a stand cannot be allowed to be raised for the first time by way of a Miscellaneous application - the present Miscellaneous Application is misconceived and the same is dismissed. - MA No.417/MUM/2010 Arising out of ITA No.4518/Mum/2008 - - - Dated:- 4-11-2010 - N.V. Vasudevan, B. Ramakotaiah, JJ. D. Songate for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emaining 11835 sq.ft. The developer agreed to pay the assessee and her husband a sum of Rs.2,18,35,000/-. The assessee and her husband were to pay the developer cost of construction of 11835 sq.ft. at Rs.1,000/- per sq.ft. 2.2 The assessee filed her return of income for A.Y. 2005-06. The assessee treated transaction of development referred to above as giving right to capital gains on transfer of capital asset. The assessee claimed exemption u/s. 54EC under the Act in respect of capital gain on transfer. Following was the computation of capital gain:- Half share of 2,18,35,000/- paid by the builder i.e. Rs.1,09,17,500 Less: Half share in the cost of construction of 11,835 sq.ft. at Rs.1000/- per sq. ft. Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The CIT(A) held that the assessee parted with the right to develop the property which was transfer of a capital asset. The CIT(A) further held that the assessee fulfilled the conditions necessary for grant of exemption u/s.54EC as well as Sec.54 of the Act and therefore, directed the Assessing Officer to allow deduction u/s.54 and 54EC of the Act as claimed by the assessee. Consequently, no Capital Gain was held to be assessable in the hands of the assessee. Against the order of the CIT(A) Revenue filed an appeal before the Tribunal and Tribunal upheld the order of the CIT(A) and dismissed the appeal by the Revenue. 5. In this Miscellaneous Application, it has been submitted by the Revenue that, out of total sales consideration for tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the head "Income from house property" (hereafter in this section referred to as the original asset), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- (i) if the amount of the capital gain is greater than the cost of the residential house so purchased or constructed (hereafter in this section referred to as the new asset), the difference betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which consideration received by the assessee on sale of right to develop the property has to be assessed. Thus the Assessing Officer should be presumed to have accepted the claim of the assessee for deduction u/s.54 of the Act. It was submitted that since the Assessing Officer did not disallow the claim for deduction u/s.54 it should be presumed that he was satisfied with the claim of the assessee, in case, it is found that income in question was assessable under the head Capital Gain. Since the Assessing Officer has not mentioned in the order of assessment, about the assessee's claim for deduction u/s.54 not being correct, the Revenue cannot in the garb of this Miscellaneous Application seek to put forth a new case, which was not raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue is permitted to take the plea as put forth in Miscellaneous Application, the assessee should be permitted to put forth the plea that any receipt on transfer of TDR is a capital receipt not chargeable to tax. 9. We have considered the rival consideration. We find that the Assessing Officer has not considered the claim of the assessee for deduction either u/s.54 or u/s.54EC of the Act as he was of the opinion that the receipt on sale of TDR was chargeable to tax under the head "Income from Other sources". The Assessing Officer has only discussed and decided the issue as to whether the receipt on sale of TDR has to be assessed under the head "Capital Gain" or "income from Other Sources". The Assessee had made a claim for deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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