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TMI Blog2020 (9) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... er evidence or by referring to the valuation cell or obtaining the information from the SRO. We set aside the issue back to the file of the AO with a direction to re-estimate and determine the sale consideration to compute the capital gains. It is needless to say that the AO is required to give sufficient opportunity to the assessee. Sale consideration to be taken for computing the capital gains - HELD THAT:- We find some inconsistency in this regard. During the appeal hearing the Ld.AR submitted that the balance 1100 sq ft represent the common area where, as per the CIT(A) s order the assessee contended that he had not received the 1100 sq. ft. No evidence was placed before the CIT(A) or before us with regard to non-receipt of the area of 1100 sq ft from the builder. If the same represent the common area, we are of the view that common area also to be considered for sale consideration as per JDA. e, remit the matter back to the file of AO to examine the issue with regard to constructed area received by the assessee with the JDA and the builder and decided the issue on merits after giving opportunity to the assessee. The appeal of the assessee on this issue is allowed for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee to receive 24100 sq. ft of constructed area. During the post search enquiries, the assessee had admitted the undisclosed income of ₹ 1.00 crore on the basis of information provided by Shri P.Rajasekhar Rao, the builder, but subsequently retracted from the statement and did not file the return of income as admitted in the statement dated 12/05/2009. The assessee filed return of income admitting capital gain of ₹ 40,26,784/- on 22.11.2010 subsequent to the show cause notice issued by the AO on 15.11.2010. The assessee has computed the long-term capital gain as under: Cost of Apartments received 1,26,50,000 Date of Purchase of land 17.4.1964 The area of the land purchased 2080 sq.ft Land available after disposal in the past 1954.30 sq.yards Total land handed over to builder 1954.30 sq.yard Less:Land used for construction of owner s flat 797.57 sq.yards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Less: Expenditure on leveling as claimed by the assessee 2,00,000 Eligible long term capital gains 1,39,32,222 Less: Allowable deduction u/s 54F in respect of the value of one residential unit out of 20 units: 1,48,40,450/20 7,42,022 Taxable long term capital gains 1,31,90,199 3. While determining the capitals gains, the AO adopted the value of the property at ₹ 125/-sq. yards as on 1.4.1981 as against ₹ 900/- per sq. ft claimed by the assessee. Similarly, the AO considered the sale of consideration received as per the Joint development agreement at ₹ 1,48,40,450/- as against ₹ 1,26,50,000/- admitted by the assessee. The assessee has claimed exemption u/s 54F which was not allowed by the AO. 3.1 Against the order of the AO, the assessee went on appeal before the CIT (A) and the learned CIT (A) upheld the sale consideration of ₹ 1,48,40,450/-. The ld.CIT (A) declined to entertain the claim of the assessee with regard to allowi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the appeal hearing, the learned AR did not make any argument on this issue relating to ground No.5 and hence, the same is dismissed as not pressed. 7. Ground No.3 and 4 are related to adopting the sale consideration for transfer of land and the receipt of constructed area as per the JDA. During the appeal hearing, the learned AR argued that the sale consideration (cost of built up area from the builder) received by the assessee required to be worked out at ₹ 550/- sq. ft but not the market value as computed by the AO. If the sale consideration is taken at ₹ 550/- per sq. ft, the learned AR contended that only the net constructed area received by the assessee required to be considered proportionately. The sale consideration over and above built up area needs to be excluded, since, the same was common area and not received by the assessee. The learned AR argued that the assessee has received the built up area of 23000 sq. ft, the cost of which needs to be taken as sale consideration for computing the capital gains in the hands of the assessee, instead of 24,100 sq. ft as per JDA. Out of the total area of ₹ 24,100 sq.ft, 1100 sq. ft was not actually r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the appeal of the assessee on this ground is allowed for statistical purposes. 10. The next issue is the area for which the sale consideration to be taken for computing the capital gains. According to the AO as per the JDA 24100 square feet was received where, as per the assessee 23000 square ft. We find some inconsistency in this regard. During the appeal hearing the Ld.AR submitted that the balance 1100 sq ft represent the common area where, as per the Ld.CIT(A) s order the assessee contended that he had not received the 1100 sq. ft. No evidence was placed before the Ld.CIT(A) or before us with regard to non-receipt of the area of 1100 sq ft from the builder. If the same represent the common area, we are of the view that common area also to be considered for sale consideration as per JDA. Therefore we, remit the matter back to the file of AO to examine the issue with regard to constructed area received by the assessee with the JDA and the builder and decided the issue on merits after giving opportunity to the assessee. The appeal of the assessee on this issue is allowed for statistical purposes. 11. Ground No.6 is related to deduction u/s 54F of the I.T. Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar to that of value of project where different claims were made at different points of time. It is not known why the cost of ₹ 1 ,2001 - is adopted when the rate is ₹ 5501 - per sq. ft.? If the claim of self self use of 4147 sq. ft. is agreed since filed in the return of income, the value could be 22,80,850/- (4147 x 550). Thus, the Assessing Officer is directed to work out the proportionate claim u/s.54F by allowing 4147 sq. ft instead of single unit. It is seen that there is no whisper of improvement of the flat in the calculations furnished by the appellant except mentioning the cost of improvement of ₹ 26,95,5501-. In view of the above observations, the claim of expenditure of ₹ 26,95,550/- is not considered . 12. During the appeal hearing, since the learned AR did not make any argument or produce any evidence in support of the ground. Therefore, we do not find any infirmity in the order of the learned CIT (A). However, the learned CIT(A) allowed the deduction @₹ 550/- per sq feet for 4147 square feet as per the sale consideration claimed by the assessee. Since we have remitted the issue of sale consideration to the file of the AO, we di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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