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TMI Blog2014 (2) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted by the A.O. u/s 143(3) r.w.s. 147 without issuing notice u/s 143(2) of the Act is void ab initio and the same is liable to be cancelled – Decided against Revenue in favour of Assessee. - I.T.A. No. 2013/Mum/2009, I.T.A. No. 1484/Mum/2009 - - - Dated:- 5-7-2013 - Shri P. M. Jagtap, AM And Dr. S. T. M. Pavalan, JM,JJ. For the Petitioner : Shri Sanjay R. Parikh For the Respondent : Shri Ajay ORDER Per P. M. Jagtap, A. M. These two appeals, one filed by the assessee being ITA No. 3023/Mum/2009 and the other filed by the Revenue being ITA No. 2484/Mum/2009, are cross appeals which are directed against the order of ld. CIT(A) - XIX dated 17-12-2008. 2. The assessee in the present case is a Co-Op. Housing Society. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y issue raised by the assessee challenging the validity of reassessment made by the A.O. and rejecting the same, he upheld the validity of the said assessment. He also upheld the decision of the A.O. that the development rights being capital asset, the profit arising from the transfer thereof was chargeable to tax under the head "capital gain". He, however, accepted the alternative contention of the assessee that the entire consideration from sale of development rights having been shared by all the 12 members who were actually the owners of the said rights as per the Board Circulars and the profit arising from the transfer of development rights having been already offered by them to tax, no addition on account of capital gain from the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which is illogical and without any base of reasoning." By the Revenue:- 1. "On the facts and in the circumstances of the case and in law, the Learned CIT(A) erred in deleting the addition of Rs.1,40,12,700/- being capital gain on sale of TDR made by the Assessing Officer by holding that the income from TDR has already been offered by 12 member and the additions so made again the assessee's case tantamount to double taxation without appreciating the fact that the society is the owner of the land not be member and the members individually cannot transfer FSI/TDR directly to developer. 2. The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the A.O. be restored." 4. In ground No. 1 of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed finality. In the case of Smt. Bandana Gogoi vs. CIT (2007) 289 ITR 28, a similar view was taken by the Hon'ble Gauhati High Court holding that in the absence of notice issued u/s 143(2) of the Act, the block assessment made by the A.O. was not valid. The Hon'ble Gauhati High Court held that the requirement of section 143(2) could not be dispensed with as the same was mandatory. In the case of Commissioner of Wealth Tax vs. HUF of H.H. Late J.M. Scindia (2008) 300 ITR 193 (Bom.) cited by the ld. counsel for the assessee, a similar issue arose for consideration of the Hon'ble Bombay High Court in the context of reassessment made under the Wealth Tax Act, 1957 without issuing notice u/s 16(2) of the Wealth Tax Act within the prescribed time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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