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TMI Blog2011 (7) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced before him by the assessee without calling for remand report from the Assessing Officer. The Assessing Officer was not given the opportunity to verify the additional evidence produced by the assessee before the learned CIT(A). 2. The relevant facts are that on the basis of Annual Information Report furnished u/s. 285BA of the Act, the ITO (HQ)(CIB) computed the Long Term Capital Gain in the hands of the assessee at ₹ 2,02,16,667/-. The ITO(HQ)(CIB) noted that the assessee had sold landed property for a consideration of ₹ 2,02,16,667/- during the F.Y. 2004-05 i.e. relevant to the A.Y. 2005-06 under consideration. Since the assessee did not respond the notices issued by the ITO (HQ)(CIB), to furnish requisite details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transactions nor responded to the notices issued by the I.T.O, thus the ITO was justified in computing the Long Term Capital Gain at ₹ 2,02,16,667/-. The Ld. D.R. contended further that the Ld CIT(A) has even entertained the additional evidence produced before him by the assessee without calling for remand report from the ITO which is against the rules laid down under rule 46A of the I.T. Rules. The Ld. D.R., also furnished order passed by the Ld. Chief Commissioner of Income Tax, Pune on 1.8.2007 u/s. 120 of the Income Tax Act 1961 to support his contention that ITO (HQ)(CIB) was having jurisdiction over the assessee to make the assessment. 4. The Ld. A.R., on the other hand, tried to justify the first appellate order. He reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the Ld CIT(A) has passed order on issue after detailed discussion. He pointed further that in case of Nitin B. Pote, the joint owner of the property in question, under the similar facts and circumstances for the A.Y. 2005-06, the Ld CIT(A) had deleted the similar addition against which the revenue did not prefer appeal before the Tribunal. Thus, the revenue has accepted the first appellate order on the issue as justified. On merits of the case, the Ld. A.R. submitted that the possession of the property is still with the assessee as the same was never transferred to the Developer under the Development Agreement. The consideration was also not agreed upon nor paid but only the mode of payment of consideration was agreed upon, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant documents were already filed before the AO having jurisdiction over the assessee. 5. The ld. D.R. in re-joinder submitted that the first appellate authority was different in the case of Nitin B. Potte, than the first appellate authority who has decided the first appeal in the case of the assessee. The assessee never bothered to respond the notices issued before the ITO (CIB), thus, there was no occasion for the ITO(CIB) to know that the assessee is assessed by the regular A.O having jurisdiction over the assessee. 6. Considering the above submissions, we find that even as per the order dt. 1.8.2007 of the Ld. Chief CIT (Pune) passed u/s. 120 of the I.T. Act referred by Ld. D.R, the ITO (HQ)(CIB) was having no jurisdiction over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, reproduced hereunder to justify his above conclusion about the alleged transfer : 12. An objective scrutiny of the facts of this case clearly indicate : (a) In this case sale consideration has not been quantified. No part of sale consideration has been received by the appellant other co-owners of the property. (b) Possession of property has not been given to the Developer. The Developer was allowed to enter the property only for measurement purposes which was also not done by the Developer due to opposition of the unauthorized occupants of the land. (c) No building plan has been submitted to KDMC. Till date KDMC has not approved any Building Plan for the land under consideration. (d) Major portion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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