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TMI Blog2017 (10) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income- Tax(Appeals) failed to appreciate the fact that the Learned Income- Tax officer erred in invoking the provisions of section 147 of the Income- Tax Act, on the facts and in the circumstances of the case. 3. The Learned Commissioner of Income-Tax (Appeals) erred in not appreciating the fact that the Learned Income- Tax officer could not have issued notice under section 148 of the Income-Tax Act after 31-03-2012 for this assessment year, on the facts and in the circumstances of the case. 4. The Learned Commissioner of Income-Tax (Appeals) erred in not appreciating the fact that the assessment for the Assessment year got barred by limitation by 31- 03-2012 and such the Income-Tax Officer could not have issued a notice under section 148 on 14-03-2013, on the facts and in the circumstances of the case. 5. The Learned Commissioner of Income- Tax(Appeals) erred in not appreciating the fact that no direction was given by the Hon'ble Tribunal in this case for reopening the assessment for this year, on the facts and in the circumstances of the case. 6. The Learned Commissioner of Income- Tax(Appeals) erred in not appreciating the fact that the Hon'ble Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case. 15. The appellant craves leave to add to, alter or amend any of the aforesaid grounds as advised on or before the date of hearing". 2. Grounds 1 and 15 are general in nature and need no adjudication. 3. Grounds 2 to 6 are against the reopening of the assessment u/s 143(3) r.w.s.147 of the Act. 4. Brief facts of the case are that the assessees did not file any return of income for the year under consideration. The AO issued notice u/s 148 of the Act on the ground that the assessee's father, Shri Syed Jamaluddin Ali Khan, who was the owner of the properties bearing No.9-1-128 and 9-1-128/1 situated at S.D. Road, Secunderabad had gifted certain portions of his property to his children and that the father and his children being joint owners and possessors of the above properties had entered into a development agreement with M/s. Sreeji Builders on 31.12.2004 by virtue of which all the assessees before us were to receive flats built on 44% of the super built up area, whereas the builder would have rights to sell 55% of the area. It was stated by the assessee that they had entered into an MOU with M/s. Sreeji Builders on 11.03.2008, on which date the flats were hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplied. Accordingly, the assessees filed their returns of income on 15.5.2014 and the reasons were communicated vide letter dated 18.7.2014. The assessees filed their objections for reopening of the assessments particularly stating that the Tribunal could not have travelled beyond the A.Y under consideration and also that under sub-section (2) of section 150 of the I.T. Act, the provisions of sub-section (1) shall not apply in any case where any such assessment, re-assessment or re-computation as it referred to, in that sub-section, relates to an assessment year in respect of which an assessment or recomputation could not have been made at the time, the order which was subject matter of appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, re-assessment or recomputation may be taken. 7. The objections of the assessees were, overruled by an order of the AO dated 5.5.2015 holding that the Tribunal has given a clear direction to assess the capital gain in the A.Y 2005- 06 and if the assessee has any grievance against the order of the ITAT, he or she should have taken the matter with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee, cannot be considered as a finding or direction under sub section (1) of section 150 of the I.T. Act. He submitted that the A.Y before the Tribunal in the earlier proceedings was A.Y 2007-08 and the Tribunal could not have given any direction for the A.Y 2005-06 which was not before it. Therefore, according to him, the provisions of sub section (1) of section 150 are not applicable to the facts of the case before us. The learned Counsel for the assessee further submitted that even if the findings of the Tribunal is to be considered as a finding or direction under sub section (1) to section 150 of the Act, it is subject to the limitation prescribed u/sub section 2 of section 150 of the I.T. Act. He submitted that the assessment could not be reopened after the expiry of six years from the end of the relevant A.Y after 31.03.2012 and he submitted that in the case before us, the period of six years have lapsed before the AO issued notice u/s 148 of the Act on 14.03.2013. Therefore, according to the learned Counsel for the assessee, re-assessment notices are not valid. 10. The learned DR, on the other hand, supported the orders of the authorities below. 11. Having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, six years from the end of the relevant A.Y is 31.03.2012 beyond which period a notice u/s 148 cannot be issued for the A.Y 2005-06. Since as per section 2 of section 150, the notice u/s 148 cannot be issued if the order under appeal before the Tribunal, was beyond the limitation period prescribed u/s 149(1)(b) of the Act. However, we find that the order of the CIT (A) which is subject matter of appeal before the Tribunal is dated 30.06.2011 is well within the period of six years from the end of the relevant financial year and therefore, the proceedings initiated by the AO by issuance of notice u/s 148 for the A.Y 2005-06 in the case of the assessee is sustainable. Therefore, we see no reason to interfere with the order of the CIT (A) on this issue. Thus, grounds of appeal Nos. 2 to 6 are rejected. 12. As regards Ground No.7 is concerned, the learned Counsel for the assessee submitted that by virtue of various decisions of the Tribunal and also the jurisdictional High Court in the case of Shri Syed Ali Adil (352 ITR 0418) and also the decision of the Hon'ble Madras High Court in the case of CIT vs.V.R. Karpagam (373 ITR 0127) and the Hon'ble Karnataka High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where the assessee has got five residential flats. We may also mention here that all the Authorities below have clearly understood that the agreement signed by the assessee with M/s. Mount Housing Infrastructure Ltd., is that the assessee will receive 43.75% of the built- up area after development, which is construed as one block, which may be one or more flats. In that view of the matter what was before the Assessing Officer is only equivalent of 56.25% of land transferred, equivalent to 43.75% of built up area received by the assessee. This built up area got translated into five flats. Hence, we are of the opinion that the transaction in this case was not with regard to the number of flats but with regard to the percentage of the built up area, vis-a-vis, the Undivided Share of Land. iii) CIT vs. Syed Ali Adil "10. We see no force in the said contention. As held in D. Ananda Basappa's case (supra) by the Karnataka High Court, the expression "a residential house" in section 54 (1) of the Act has to be understood in a sense that the building should be of residential nature and "a" should not be understood to indicate a singular number and where an assessee had purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X
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