9911796707
TMI Blog2015 (1) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is with regard to the validity of the proceedings initiated by the Assessing Officer by issuance of notice u/s 147/148 of the Act. The facts and circumstances under which the Assessing Officer has initiated proceedings u/s 147/148 for the assessment year 1999-2000 in all the cases is identical. 4. The brief background of the dispute can be summarized as follows. The assessee along with his family members owned some agricultural lands at Hadapsar, Pune. The assessee and his family members along with other neighbouring farmers came together with the object of developing their land into a Township. With the said purpose, various farmers gave their lands for development to Magarpatta Township Development and Construction Co. Ltd. (in short "MTDC") for development of land and in turn they entered into an agreement with MTDC on 26.03.1999. It was pointed out in the course of hearing that there are about 350 farmers who entered into such an agreement with MTDC where the intention was to develop a Township of residential flats, plots and other commercial areas. The individual farmers were to share the profits/losses from such development activity jointly along with MTDC in propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was appropriately declared in the respective years. In support, a reference has also been made to the submissions made to the CIT(A) whereby the 7/12 Extracts from the Government Revenue records were produced to show that assessee has taken various crops like, sugarcane, rice, vegetable, etc. even beyond the year 2003-04. Secondly, it is pointed out that agreement dated 26.03.1999 was not a development agreement as it was done on a Stamp Paper of Rs. 20/- and no consideration was paid to the farmers. Therefore, according to the assessee, in the absence of any possession being handedover and in the absence of any development agreement or any consideration being paid, the provisions of section 2(47)(v) of the Act r.w.s. 53A of the Transfer of Property Act, 1882 has been wrongly invoked by the income-tax authorities in order to tax the capital gain in assessment year 1999-2000. Thirdly, the farmers were to get consideration for joint development with MTDC in a proportion which was determined on a pro rata basis depending on the landholding of each farmer which was given for development. The farmers were entitled to a share in the sale proceeds of the built-up area, plots and TDRs i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer in assessment year 1999-2000. In the case of the assessee for assessment year under consideration i.e. 1999-2000 capital gain has been taxed at Rs. 71,46,709/- whereas assessee has offered to tax capital gains for the assessment years 2003-04 to 2013-14 of Rs. 72,79,93,648/-. The aforesaid aspect has been highlighted to say that the assessee has not avoided any taxes by not showing capital gains in assessment year 1999-2000. 9. Apart from all the aforesaid objections, one pertinent point raised by the assessee is that the Department had issued notices u/s 148 of the Act in the case of most of the farmers for assessment year 1999-2000 with a view to tax the capital gains on transfer of land to MTDC. The Ld. Representative submitted that like the assessee, other 350 (approx) farmers who are signatories to the agreement dated 26.03.1999 with MTDC disclosed capital gain over the years from assessment years 2003-04 to 2013-14 and they did not show the capital gain in assessment year 1999-2000. The Ld. Representative asserted that the Department has accepted their claims and taxed the capital gains over the years. In some of their cases, notices u/s 148 of the Act issued for assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1999-2000 have been finalized. Further, assessment orders of such other farmers wherein capital gains have been taxed in the future by the Department have also been placed in the Paper Book at pages 234 to 279. In view of the aforesaid, the point raised by the assessee is that if the Department has accepted a particular view in similar cases it is not justified in taking a contrary view in the case of the assessee, without establishing that the case of the assessee is different from other cases. Therefore, it is sought to be canvassed that addition of capital gains made in the impugned assessment order for assessment year 1999-2000 in the case of the assessee and his family members should also be deleted following the principles of consistency laid down by the Hon'ble Supreme Court in the case of Berger Paints India Ltd. vs. CIT, (2004) 266 ITR 99 (SC). 12. At the time of hearing, it was also pointed out that even in some of the cases of the assessee's family like, Amol Krishna Ashtekar and Atul Krishna Ashtekar, Assessing Officer has taxed capital gains in assessment year 2007- 08 as declared by them on the basis of the yearly entitlement certificates issued by the MTDC and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 1999-2000 on account of the agreement with MTDC dated 26.03.1999 and, that too, by issuance of notice u/s 147/148 of the Act on the premise that certain income chargeable to tax has escaped assessment. A pertinent point has been raised by the assessee whereby the correctness of the action of the Assessing Officer has been challenged on the ground that in the case of other similarly placed assessees, the Department has accepted the position sought to be canvassed by the assessee. Factually speaking, the claim of the assessee is that capital gains are not liable to be taxed in assessment year 1999-2000 and that the same are to be taxed over the years when MTDC started receiving the sale proceeds from the customers and it informed the assessee about his share in the said proceeds in the manner provided in the agreement dated 26.03.1999. Averments in this regard have also been made before us in the form of an affidavit. In the affidavit, it is sought to be canvassed that even in some cases, notices u/s 148 of the Act on similar lines for assessment year 1999-2000 were issued but no assessments were made thereof, instead assessment of capital gains was made over the year ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
