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TMI Blog2017 (5) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... below have not properly appreciated the facts and circumstances of the case, resulting in erroneous conclusion about income and business activities and such a conclusion being against the facts of the case is totally to be ignored. 2. The authorities below have not appreciated that the share of land belonged to the appellant was transferred by the appellant on 02.04.2010, relevant to Assessment Year 2011-12 and have erred in taxing the income from business of the same transaction in Assessment Year 2012-13 being the year under appeal. Such an action having no force in law, being erroneous on facts is to be ignored and the addition made is to be deleted. 3. On the facts and circumstances of the case and on appreciation of evidence availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds were executed by the assessee being owner of the land to the prospective buyers as per terms of lease agreement and Memorandum of Understanding (MoU) executed between the assessee along with owners of different lands with the developer. 4. The AO during the course of assessment proceedings conducted an enquiry with M/s. Royal Prime Developers with whom the assessee has entered into sale agreement. M/s. Royal Prime Developers vide letter dated 18.02.2015 have made the statement, which was recorded by the AO in para 4 of his order. The statement made by the developer through its letter dated 18.02.2015 and the documents filed by it were thoroughly examined by the AO and he came to the conclusion that assessee had developed the sites in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale consideration and thereafter the assignment fee for development including margin would be transferred and paid to them on case to case basis. It means that assessee has received certain amounts over and above the fixed sale consideration of Rs. 2,62,50,000. The assessee has not furnished the complete details, therefore AO was constrained to calculate the actual receipts in the hands of assessee either on account of capital gain or business income. 7. Having carefully examined the orders of lower authorities in the light of rival submissions, I find that under sale agreement, assessee has agreed for sale of land against a sum of Rs. 2,62,50,000 which was to be received on subsequent dates. As per the MoU, assessee was required to exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 3 acre 20 guntas. 4) The Developer stated that modus operandi of the transaction is that they would develop the property and sell the same on behalf of the land owners. The developer further stated that irrespective of the ownership in the property all the owners would execute the sale deed as per agreed sale consideration and thereafter assignment fee for development including margin would be transferred/paid to them on case to case basis. 5) The Developer stated that they have developed the property based on agreement of sale without being registered with concerned authority and without having General Power of Attorney. 6) The Developer in his letter stated that they have made three types of transaction in sale of plots. The detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the sale deeds are consideration received by the land owners and it does not include assignment fees collected by the Royal Prime Developers." 8. From a careful perusal of the sale agreement, MoU and the letter of developer dated 18.02.2015, it appears that assessee has received certain amount over and above the amount payable under the agreement for sale at the time of execution of the sale deed in favour of prospective buyers. But the quantification of the amount is not done by the AO nor any formula was worked out. In the light of these facts, I am of the view that this issue requires readjudication by the AO in the light of the letter of the developer, agreement for sale and MoU. If need be, the AO may summon the developer and examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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