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TMI Blog2015 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... th fiver others executed a Development Agreement cum GPA on 01-06-2004 for development of 2915 Sq Yds. (3085 Sq Yds. Minus 175 Sq Yds. Surrendered to Municipality) of land at Begumpet, Hyderabad. Out of this land, the assessee's share works out to 659 Sq Yds. As per the agreement cum GPA for foregoing his land, assessee received flat No. 105 (50% share), Flat No.205 (Total super built area of 5350 Sq feet for 3 flats received by the assessee) with undivided share of land of 52.42 Sq Yds, 104.84 sq.yards and 104.84 sq.yards respectively. There was no endorsement of registration authorities on the reverse of the Development Agreement cum GPA which indicate that the agreement was not registered in the absence of which the compliance of section 50C of IT Act is not verifiable. Moreover as the date of Development Agreement cum GPA was on 1.6.2004 (FY 2004-05) relevant of A.Y 2005-06), there was transfer during A.Y 2005-06 and capital gains needs to be taxed in A.Y 2005-06. This fact has not been verified during assessment proceedings. AY 2006-07 6. From the computation of the assessee for the AY 2006-07, an amount of Rs. 34,77,500/- (Calculated @650 per Sq Foot cost of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st for which explanations were sought by him. We had provided valid explanations for all the queries raised and they were considered by the A. 0 correctly. Hence, the order given by the A.O u/s 143(3) r.w.s 153C dated 826.12.2011 is correct. (ii) A.Y.2006-07 10. Assessees's submission dated 24.03.2014 Registration of Development Agreement: You may note that the endorsement of registration behind the development agreement (as per the seized material on page 352 of Annexure A/EBPL/OFF/01) is very much there. This information was very much available and constdered by A.O already. Explanation with respect to rate adopted for transfer of Land: With regard to your calculation in the notice, on the basis of cost assigned to undivided share of land of 104.18 sq. yds(Rs. 15,09,000) worked out to be Rs. 14,845/- per sqyd. we would like you to note that the cost assigned is only a balancing figure arrived after reducing cost of built-up area from the Total sale consideretion of the flat (Rs. 29,04000) and NOT actual cost of the land. Total consideration Rs.29,00,000 Less: Cost of building the flat-405 (2140 sq.ft * Rs. 650/per sq.ft) Rs.13,91,000 Cost of undivide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O in past for which explanations were sought by him. We had provided valid explenettons for all the queries raised and they were considered by the A.O correctly. Hence; the order given by the A.O u/s 143(3) r.ws 153C dated 26.12.2011 is correct. 12. The ld CIT (A) held as under: 4. I have gone through the submission of the assessee. It is evident from the assessment orders that the issues raised in the notices for the above referred assessment years were not examined by the Assessing Officer in the proper perspective and the assessment orders were passed. It was held in number of cases that it is well established that where the Assessing Officer fails to make the necessary enquiries which he is legally required to make and decide the issues without making such enquiries then the order of the Assessing Officer would be erroneous in Law. This was so held in the case of Desai Brothers Ltd. Vs. DCIT, Pune Tribunal. Similar view was also taken by many other Tribunals and High Courts wherein it was held that on failure of Assessing Officer to make enquiry as expected, Commissioner was justified in invoking provision of Section 263 because the orders passed as such by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired into or examined by the A.O. during the course of assessment proceedings. In reply to the said notices, a detailed submission was filed by the assessee explaining as to how the issues raised by the Ld. CIT in the notices issued under section 263 were not relevant for the purpose of completing the assessments in the case of the assessee for all the four years under consideration. On the basis of this explanation offered in respect of each and every issue, it was contended on behalf of the assessee before the Ld. CIT that it was not the case of assessments having been completed by the A.O. without making proper and adequate enquiries as required in the facts and circumstances of the case. A perusal of the operative portion of the Ld. CIT's impugned order however shows that he has neither considered this explanation of the assessee nor made any comment/ observation thereon pointing out specifically that it was still a case of failure on the part of the A.O. to make proper and adequate enquiries before completing the assessments as were required in the facts and circumstances of the case. He has not pointed out specifically even a single enquiry which A.O. ought to have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Sd/- &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not agree with my sister's draft order fully as it contains not only certain errors, but there is no clear direction in para 15. 2. There are three appeals preferred and these appeals are against the order of the CIT (Central) u/s 263. 3. Originally, assessments have been completed u/s 153C and the assessment orders have been passed for A.Y 2005-06 to 2006-07 on 26.12.2011. Subsequently the ld CIT noticed that there are certain issues which have not been examined by the AO and accordingly held that the order is erroneous and prejudicial to the interests of Revenue. Vide the impugned orders, the ld CIT has set aside with a direction to examine the issues in proper perspective and pass appropriate order, after considering the explanation of the assessee filed during the revision proceedings. 4. While extracting the assessee's explanation, order does not indicate clearly how and what authority has considered the order as erroneous, as para 8 is silent on this issue. In fact para 8 should be read as observations of the ld CIT. 5. Vide para 12 it was stated that "ld CIT (A) is held as under", whereas it was CIT who has passed the order u/s 263 and not the CIT (A). 6. The Coordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Sd/- &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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