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TMI Blog2017 (6) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... of transfer instead of cost of actual construction in term of JDA - Decided in favour of assessee. - I.T.A No.235/Bang/2016 - - - Dated:- 9-6-2017 - SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIT KUMAR, JUDICIAL, JUDICIAL MEMBER For the Appellant : Shri. H. Guruswamy, ITP For the Respondent : Smt. Swapna Das, JCIT ORDER PER LALIT KUMAR, JUDICIAL MEMBER: This is an appeal filed by the assessee, against the order of the CIT (A)-3, Bengaluru, dt.25.12.2015, for the assessment year 2006-07. ITA.235/Bang/2016 Page - 2 02. The assessee has raised the following grounds of appeal : 1. The impugned Appellate order dated: 25-12-2015 passed by the Ld. CIT(A), Bangalore-3 is opposed to law, facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pass orders deleting the Capital Gain amounting to ₹ 88,96,056/- on the basis of the consideration of ₹ 1,08,13,930/- determined by the AO on the basis of the builders cost at the rate of ₹ 1238/- per Sq.ft of Built-up area measuring 8735 sq.ft and further be pleased to pass such other orders granting such other relief that your Hon'ble Authority may deem fit in the interest of equity and justice. 03. The Assessee had owned a Vacant site Bearing No. 22, 3rd Cross, Sultanpalya (B.B.M.P Ward No. 95) measuring 5733 sq.ft., The Assessee had entered into a JDA, dated 23-07-2005 with a Developer M/s. Sai Dwaraka Builders and Developers represented by its Managing Partner Sri. G. Prem Kumar Reddy for construction of resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration for exchange of land in the scheme of Joint Development in determining the considerationat Rs . 1,08,13,930/-. 07. The consideration of ₹ 1,08,13,930/- determined by the AO based on the Builder's cost was opposed to the law and facts of the case in view of the decision of the Hon'ble High Court of Karnataka (Supra) and therefore, the Assessee having been aggrieved with the Assessment order has filed an Appeal before the Ld. CIT(A)-3, Bangalore. 08. The Ld. CIT(A) has passed an Appellate order dated: 25-12- 2015 and dismissed the Appeal on the ground that the decision of the Honble High Court of Karnataka in the case of Ved Prakash Rakhra (2015) 370 ITR 762 (Kar) was not applicable since the facts of the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Consideration for the purpose of section 45 of the Act ? 11. The Assessee submits that a question of law formulated as stated above was answered by the Hon'ble High Court of Karnataka by laying down the ratio which is reproduced as hereunder: Held, (i) that the exchange value as specified in the project development agreement could be taken as the basis for computation of the construction in the joint development. The cost incurred by the developer need not necessarily represent cost of construction. The detailed particulars were not given. The transaction of the joint development is one of exchange. The consideration specified in the document represents the market value on the date of entering into the agreement . Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, the learned DR relied upon the order passed by the lower authorities and has also relied on the judgment of the Hon ble jurisdictional High Court in the case of Ved Prakash Rakhra (supra). In the facts and circumstances of the case, the DR pleaded that the order passed by the authorities below is required to be upheld. 15. We have heard the rival contentions and perused the materials on record. Relevant clauses, viz., 2(f), (g), 4.1, 4.2, 5.1 to 5.6, 6.1, 8.1 to 8.3 and 12.1 to 12.3 of the JDA are reproduced hereunder for the purposes of record , as neither AO nor the CIT (A) had adjudicated as to the date of transfer I e as to when the property would be transferred after built up to the assessee in term of JDA. In ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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