9911796707
TMI Blog2016 (9) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... set of individuals, Anil Patel & Others, for a total consideration of Rs. 1,05,00,000/- (PB pgs. 39-56). Taking us through the recitals and the terms of the said agreement, it was sought to be emphasized that the entire consideration was to be received within 12 months of the execution of the agreement. The payment was, in fact, received in due course of time. A power of attorney was also executed for the purpose in favour of the buyers. In fact, the 'buyers' assigned the development rights to another, M/s. Rashmi Gruh Nirman Ltd., vide an agreement for development and sale dated 18.1.1996 (at PB pgs. 57-82), in pursuance to which a building was construed on the demised land by the latter. In fact, a housing society was also formed qua the said residential complex in the year 2003. The entire transaction was completed much earlier, i.e., sometime in the late 1990s, and the entire capital gain arose to the assessee for that year/s. The assessee having received part consideration in an earlier year, received part consideration of her share of consideration during the current year from Shri Ramakant Mahadev Kadam, a co-owner and brother of the assessee's husband. The amounts had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant year, i.e., A.Y. 1995-96. The property, in fact, continued to be shown in the assessee's balance-sheet till 31.3.2007 (i.e., up to A.Y. 2007-08). The claim for exemption u/s. 54F was also disallowed as, as it appeared, the assessee owned more than one residential house at the relevant time, violating s. 54F(1). Further, no details of the investment of capital gain had been furnished, which (capital gain) had admittedly not been deposited, as required by law, in a separate capital gains account with a scheduled bank, i.e., to the extent not utilized up to the date of filing the return of income for the relevant year. The commencement and completion dates of the residential house were also not furnished and, in any case, not established. In appeal, the ld. CIT(A) found the assessee eligible for her claim for exemption u/s. 54F as, on the basis of evidences furnished and admitted, the same were found by him as non-residential. Further, even if considered residential, the same are only partly owned, which could not be equated with absolute ownership, relying for the purpose on the decision in ITO vs. Rasiklal N. Satra [2006] 98 ITD 335 (Mum). Further, the ld. CIT(A), following Raje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces without observing the mandatory procedure prescribed under rule 46A (of the Income Tax Rules, 1962) and seeking A.O.'s report thereon. We shall take up the assessee's appeal first. The first issue, raised per Grounds 2 and 3, is whether the capital gain on the transfer of plot no. 99 arises to the assessee during the current year, or does it so for any other year, as (say) A.Y. 1995-96. The second issue arising in the instant appeal is the restriction of the claim for exemption u/s. 54F to Rs. 39,25,249/-, i.e., as against the claimed sum of Rs. 52,67,319/-. In respect of the first issue, as explained by the Hon'ble Apex Court in CIT vs. Shelly Products [2003] 261 ITR 367 (SC), the liability to tax does not depend upon assessment, but arises as soon as the Finance Act prescribes the rate/s for the relevant year, i.e., u/s.4 of the Act. As such, even where the assessment does not survive or is held as void ab-initio, the tax paid by way of self-assessment tax could not be refunded to the assessee. However, just because the assessee has filed the return, he cannot be saddled with a tax liability in-as-much as there is no estoppel against law (refer: CIT vs. Durga Prasad More [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains (for the current year) despite having not received her share even during the current year (refer para 6 of the assessment order), is thus aware that the income by way of capital gains is assessable on accrual basis, stating resolution of the legal dispute during the current year as the reason for considering the same as having accrued/arisen thereat. If not during the current year, when did the same get resolved and, further, what is the basis or the evidence to consider it as so? No details with regard thereto stand furnished at any stage; the assessee 'changing' her stand to claim that no gain in fact arose during the current year. The complete details need to be brought forth, and its' impact considered in light and in the context of the provisions of law, while there is nothing on record toward the same, with, rather, even most of the 'facts' stated by the ld. counsel being not borne out by the record. Then there is the question of whether the transferee has performed or was willing to perform his part of the contract (sec. 53A of the TP Act). If so, why is it that the payment was withheld, and for years, or given, as stated, to the assessee's brother-in-law, and when? Ans ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
