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TMI Blog2014 (12) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ly followed the procedure by issuing a notice u/s.143(2) within the time prescribed under the proviso to Section 143(2), there is no substance in this additional ground of the assesse – Decided against the assesse. Computation of LTCG on sale on land – Transfer u/s 2(47) – Held that:- Revenue rightly contended that because as per Section 2(47) the definition of the word "transfer” in relation to a capital asset includes sale, exchange, and relinquishment of the asset. This is a case of a transfer of an immovable property - since the possession was handed over and the sale deed was registered in the Financial Year 2006-07, therefore, the correct assessment year ought to be A.Y.2007-08. The AO’s action, in this regard is hereby affirmed. - Decided against the assessee. Application of section 50C - valuation on the basis of the rates of stamp duty fixed by the sub-registrar. - Held that:- on one hand, the assessee has claimed that only 50% of the land was transacted but the stamp duty was paid on the entire area of the land, but on the other hand, the AO’s opinion was that the sale consideration in respect of entire land was to be assessed in the hands of the assessee by apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1,94,510/-. The assessee has also disclosed a Short Term Capital Gain of ₹ 6,53,902/- and a Long Term Capital Loss of Rs. (-53,906/-). The issue before us is in respect of Long Term Capital Loss of Rs. -53,906/- incurred by the assessee on sale of land admeasuring 3902 sq. yards, as mentioned by the AO. 2.1 In respect of the additional ground challenging the validity of a notice u/s. 143(2), facts were that a notice u/s.143(2) was issued on 16.09.2008. The assessee has challenged that since the return was filed on 31.07.2007 and notice u/s.143(2) was issued on 16.09.2008, therefore, the same was not within the period prescribed under the Act. On this issue, we have heard both the sides and thereupon we have confronted the appellant vide an order-sheet entry dated 09.04.2014 that on identical facts an order has been pronounced by Hon'ble Punjab and Haryana High Court in the case of Amarjeet Singh, 347 ITR 585 (P H). In view of the above order of the Hon ble High Court, learned AR Mr. Tej Shah has fairly expressed that the issue in hand can now be decided accordingly. For ready reference, it is worth to reproduce the relevant portion of the said judgment. On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to Section 143(2), therefore there is no substance in this additional ground of the assessee. 4. Before we part with this issue, for the sake of completeness of the record, we hereby mention that earlier an order was passed by a Respected Co-ordinate Bench C Ahmedabad in this very case, i.e., ITA No.131/Ahd/11 (A.Y.2007-08) order dated 30th September, 2011 wherein the impugned notice was held as barred by limitation, but later on that order of the Tribunal was recalled by ITAT C Bench in M.A. No.30/Ahd/2012 (arising out of ITA No.131/Ahd/2011) dated 28.09.2012. Since, the said earlier order of the Tribunal dated 30th of September, 2011 was recalled by an order dated 28.09.2012 hence again this very appeal was fixed for hearing and presently under consideration. 5. We, therefore, conclude that the limitation prescribed as per the amended provisions is 12 months from the end of the month in which the return was filed and because the impugned notice 143(2) was issued/ served within the said prescribed limit; hence, the issuance of notice is hereby uphold and this ground of the assessee is dismissed. 6. The assessee has also raised another additional ground, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard is hereby affirmed. This additional ground of the assessee is hereby dismissed. 10. On merits, learned AR has also challenged the computation of the capital gain in the hands of the assessee by wrongly assessing sale consideration at ₹ 84,79,627/-. Learned AR has drawn our attention on a written submission which was filed before the AO, through which it was contested that 50% of the land was taken away by the Government; therefore, the consideration of ₹ 45 lacs was only in respect of the portion of the land in possession of the assessee and that portion only was the subject matter of the transaction. For ready reference, the said reply of the assessee is reproduced hereinbelow. Background: Rajendra N. Patel owns a land at Survey No.234 at Vadaj, Ahmedabad. This was a land declared as given be it. Therefore, the govt. would take away 50% of the land area towards development of common amenities like roads, drainage, parks, etc, and balance 50% would be given back is approved final plot on which the owner can do the development work and commercially ex plot the same. The land in question was admeasuring 62.73 Sq. Mts (7502 Sq. Yard). The land was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for the entire piece of land on the basis of the rates of stamp duty fixed by the sub-registrar. He has pleaded that in terms of Section 50C it is correct that the higher stamp duty was paid but in a situation when part of the land was acquired by the government, then there was no reason to apply that rate for the purpose of computation of capital gain in the hands of the assessee. He has drawn our attention on an opinion taken from the Chief City Planner wherein it was opined that the land owner were no more able to make any kind of demand in respect of any charge made by AMC. It was further opined that after getting the development permission of 50% land. The land would automatically become the property of the AMC and therefore AMC was authorized to use the 50% of the land. 11. On the other hand, from the side of the Revenue, learned DR has pleaded that as per the sale deed the assessee has transferred 4768.02 sq mtr. (5702.69 sq yards) land to the buyer. There was no mention in the sale deed that only 50% of the land was transferred. 12. Having heard the submissions of both the sides, we are of the considered opinion that in a situation when the facts about the acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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