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TMI Blog2015 (5) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... o estimate the income of the assessee by applying net profit rate of 8%. Thus no infirmity in the impugned order of the Ld. CIT(A) giving part relief to the assessee - Decided against revenue. Determination of income of the assessee from long term capital gain including his claim for exemption under section 54EC - Held that:- It is observed that the case made out by the assessee before the Ld. CIT(A) on this issue was entirely different from the case putforth before the A.O. A perusal of relevant portion of the respective orders of the A.O. and Ld. CIT(A) shows that altogether new facts and figures were furnished by the assessee before the Ld. CIT(A) and the issue was decided by him taking into consideration the said facts and figures without giving any opportunity of being heard to the assessee. We therefore, find it fair and reasonable and in the interest of justice to set aside the order of the Ld. CIT(A) on this issue and restore the matter to the file of the A.O. for deciding the same afresh after giving the assessee a proper and sufficient opportunity of being heard. - Decided in favour of assesse for statistical purposes. - ITA.No.1652/Hyd/2013, Cross Objection No.55/Hyd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arguments of both the sides on this issue and also perused the relevant material on record. It is observed that the relevant bills/vouchers to support and substantiate his claim for various expenses could not be produced by the assessee before the A.O. for verification and since in the absence of such vouchers, it was not possible for the A.O. to verify the various expenses claimed by the assessee, we are of the view that the A.O. was fully justified in resorting to estimation of the income of the assessee from contracting business by applying the net profit rate. As regards the net profit rate of 10% applied by the A.O. for estimating the business income, it is observed that in assessee s own case for A.Y. 2007-2008, a net profit rate of 8% was applied by the A.O. to estimate the business income of the assessee and all the relevant facts including the nature of the business of the assessee remaining the same in the year under consideration, we are of the view that the Ld. CIT(A) was fully justified in directing the A.O. to estimate the income of the assessee by applying net profit rate of 8%. We therefore, find no infirmity in the impugned order of the Ld. CIT(A) giving part re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a development agreement with M/s. Vijaya Builders and Developers of Habsiguda, Hyderabad on 25.11.2006, whereby the appellant was to receive 45% of built up area i.e. finished flats in all respects in lieu of 55% of land area surrendered to the builder. It was stated that the appellant was allotted 14 flats with a total built up area of 18,000 sft and on receipt of constructed flats in the year 2007-08, as handed over by the builder the appellant had sold 8 flats in the financial year 2007-08 and 2 flats in the financial year 2008-09. It was also elaborated that the appellant had sold one flat on 25.06.2008 with a plinth area of 1000 sft for a consideration of ₹ 14,50,000/- and the other on 18.03.2009 with a plinth area of 1500 sft for ₹ 22,50,000/-, and stated that the total consideration received during the FY 2008-09 was ₹ 37 lakhs. It was further stated that the appellant in the computation of income filed along with the return of income for the AY 2009-10, had erroneously worked out the long term capital gain on sale of builder's 55% share of land of 605 sq. yards out of 1100 sq. yards at ₹ 48,02,227/- and claimed the entire amount as exempt u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Long term Capital gain Rs.2,73,985 ii) Short term capital gain on sale of 2 flats (14,50,000+22,50,000) Rs.37,00,000 Less: Land Cost as above Rs.3,90,000 Short term capital gain Rs.33,10,000 It was stated that the remaining 4 flats were sold during subsequent two financial years 2009-10 and 2010-11 at 2 flats in each year. The appellant pleaded to consider the amount of ₹ 2,73,985/- as long term capital gain in place of ₹ 1,34,198/- declared in the return of income and that the amount of ₹ 33,10,000/- be considered as short term capital gain for substitution in place of ₹ 44,82,344/- determined by the AO. Copies of the sale deeds etc.] were furnished by the appellant in support of the claims made. 6.2. After considering the submissions made by the assessee as well as material available on record, the Ld. CIT(A) decided the issue vide paragraph No.6.4 of his impugned order as under : 6.4. Considered the submissions made by the appellant along with the copies of sale deeds etc. As could be seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 25.11.2006, which are relatable to the AY 2007-08 and the further short term capital gains on sale of flats received by appellant from the developer, in the respective years of sales of flats. Hence, the assessing officer is directed to adopt the figure of ₹ 35,83,950/- for computation of short term capital gains as has been narrated below. As far as the claim of exemption u/s. 54EC on purchase of Rural Electrification Bonds of ₹ 50,00,000/- is concerned, the claim is to be made on the long term capital gains derived by the appellant. However, as has been decided, the gains obtained by the appellant are only short term capital gains and the appellant is not eligible to claim the exemption u/s. 54EC. Accordingly the claim made u/s. 54EC to the extent of ₹ 50,00,000/- stand to be rejected based on facts above and the action of the assessing officer is substantiated. 7. We have heard the arguments of both the parties and also perused the material available on record. It is observed that the case made out by the assessee before the Ld. CIT(A) on this issue was entirely different from the case putforth before the A.O. A perusal of relevant portion of the respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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