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TMI Blog2021 (4) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the relevant sale deed so as to compute the correct value of sale consideration and during the year of assessment. Being so, the assessment framed on the basis of Form 26AS is set aside. However, we make it clear that if the revenue finds that there is material evidence in support of the transfer of land by assessee to M/s. Nambiars Pvt. Ltd. who had deducted TDS in anticipation of transfer of land in this A.Y. under consideration that to be brought to tax. if the revenue finds that there was a transferable land by the assessee in favour of the deductor of TDS i.e. Nambiars Pvt. Ltd. in the A.Y. by executing a proper sale deed towards transfer of the impugned property, the same may be examined in accordance with law. At this stage, we refrain from committing anything on status of the assessee in whose name capital gain to be taxed as we have set aside the assessment. It is kept open. Appeal filed by the assessee is partly allowed. - ITA No.1374/Bang/2018 - - - Dated:- 16-4-2021 - SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER Appellant by : Shri H. Guruswamy , A. R. Respondent by : Shri Shishir Srivatsava , D. R. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to cancel the Assessment Order made in the Status of Individual as against Status of HUF and also to set-aside the Appellate Order of the Ld. CIT(A) for the same reasons and further be pleased to pass such other orders granting such other relief as your Hon'ble Authority may deem fit, in the interest of Justice and Equity. 2. The assessee has raised additional grounds on 5.4.2021 as follows: 1. The Appellant begs to submit the following additional grounds of Appeal for adjudication on the same set of facts and circumstances as prevailed upon as on 31-03-2014 relevant to the A.Y 2014-15. 2. Additional Grounds:- 1. The Ld. CIT(A) has erred in computing the consideration at ₹ 4,88,75,000/- in the Appellate Order without appreciating the fact that the MOU dtd: 01-05-2013 followed by supplementary MOU dated 27-06-2013 and Second Supplementary Agreement dtd: 12-08-2013 relating to the development of the Land was not materialized in favor of the deductor of TDS M/s. Nambiar Builder Pvt Ltd and hence no transfer. 2. The Ld. CIT(A) has erred in computing the deemed consideration at ₹ 4,88,75,000/- on the basis of TDS deducted by the Company M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has declared nil income in his return. However, assessee shown long term capital gain at ₹ 6,73,75,000/- in his return and claiming exemption u/s 54B of the Income-tax Act,1961 ['the Act' for short]. The A.O. observed that the assessee has sold a property toone Shri Ratish Nambier residing at RF(A) 164, Purava Rivera, Marathahalli, Bengaluru. It is seen that the said land is at Narayanghatta village, Bengaluru and is within the city limit and a capital asset. The assessee did not produce any details/documents to the contrary. In view of this gain on the sale of land is considered as long-term capital gain and a proposal was sent to the assessee for addition. However, there is no reply from the assessee. In the absence of reply, the A.O. treated ₹ 6,73,75,000/- as long-term capital gain taxed at 30%. In addition to this, the A.O. considered the contract receipts at ₹ 4,88,75,000/- shown in Form 26AS as gross sales receipt from contract and estimated the income at 8% applying the provision of section 44AD of the Act. The assessee went in appeal before the CIT(A) and the Ld. CIT(A) on the issue of capital gain observed that the total receipts refl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, the lands were devolved upon Smt. Kondamma w/o Late. Nanjundappa. The aforesaid lands were transferred in favour of N. Ramareddy her grandson and the katha was also transferred in the name of N. Ramareddy. 5. On expiry of N. Ramareddy, the aforesaid lands were succeeded by the Appellant as per mutual understanding between himself and his two sisters Smt. Renuka and Smt. Girija who have released their rights in favour of the Appellant. Thus the Appellant had succeeded to the aforesaid lands and hence the properties were acquired by means of inheritance and therefore, the aforesaid lands collectively belonged to all the four co-owners named above. 6. The Appellant and the other three co-owners have not entered into any partition but collectively decided to dispose off the lands measuring 6 Acre 30 Guntas and retained 1 Acre in their possession. Therefore all the family members being co- owners have executed a registered sale deed dated 11-07-2013 in favour of One Sri. Ratheesh Nambiar for a Sale Consideration of ₹ 2,70,00,000/-. 7. The Appellant's 1/4th Share of the sale consideration amounts to ₹ 67,50,000/- and the remaining sale consideration of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and ₹ 1,60,00,000/- found recorded in the 26AS Format which is not correct. 10. The Appellant further submits that out of the Sale Consideration of ₹ 67,50,000/- a sum of ₹ 39,94,280/-inclusive of Stamp Duty and Registration Fee, was invested in purchasing a New Residential House situated at Ground Floor bearing No. G-02, BBMP Katha No. 621/140/137/105/1/55/9/2 in the apartment known as Creative Environs situated in Sy. No. 55/9, Arlukunte Village, Begur Hobli, Bangalore South Taluk and accordingly the Appellant is entitled for the deduction u/s. 54F of the Act and the same was neither considered by the AO nor by the Ld. CIT(A). Therefore the Appellant prays that this Hon'ble Bench be pleased to pass orders directing the Authorities below to allow the deduction of ₹ 39,94,280/- admissible u/s. 54F of the Act in the interest of justice and equity. Regarding additional grounds, the Ld. A.R s submissions are as follows: 1. The Appellant begs to submit the following additional submissions in support of the Additional Grounds of Appeal as under. 2. The Appellant's family had inherited the Agricultural Lands detailed below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Buy Back option was provided to purchase the villas agreed to be allotted in favour of the Appellant. 6. The Appellant submits that the aforesaid MOUs dtd: 01- 05-2013, 27-06-2013 and 12-08-2013 did not materialize owing to certain constraints that the developer Company M/s. Nambiar Builders Pvt Ltd .vas not entitled to own-up in view of the restrictions of the Land Reforms Act according to which the agricultural lands in Karnataka are to be sold only to an agriculturist. Further a part of the aforesaid lands was a buffer zone. Therefore the Nambiar Builders Pvt Ltd., have backed out from the agreed conditions mentioned in the aforesaid MOUs and alternatively the aforesaid lands mentioned in SI. No. 1 to 4 of the Schedule annexed to aforesaid MOUs were later sold in favour of an Individual Sri. Ratheesh Nambiar vide Sale Deed dtd: 11-07-2013. In view of the Appellant submits that the land transaction agreed vide aforesaid MOUs was not materialized and the land was not transferred in favour of the Developer Company M/s. Nambiar Builders Pvt Ltd and therefore there was no transfer of the Asset and hence there is no liability to the Capital Gain Tax. However the Developer Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Under these facts and circumstances the Appellant prays that the consideration of ₹ 4,88.75.000/- confirmed by the CIT(A) on the case of the TDS is not justifiable in law since the property agree to be developed by the Developer M/s. Nambiar Builders Pvt Ltd who have deducted the TDS was not materialized and the land was not transferred in favour of the said Company and therefore the Appellant is not liable for Capital Gain Tax in the absence of transfer of property. Therefore the addition confirmed by the Ld. CIT(A) is liable to be deleted in the interest of equity and justice. 9. The Appellant submits herewith a Geniological Tree in support of the contention that the lands sold in favour of the individual Sri Ratheesh Nambiar vide Sale deed dtd: 11-07- 2013 were ancestral property and the lands sold were the same lands which were agreed for development with the Developer Company M/s. Nambiar Builders Pvt. Ltd. as per MOU dtd: 01-05-2013, Supplementary Agreement dtd: 27- 06-02013 and Second Supplementary Agreement dtd; 12-08- 2013. 6. The Ld. D.R. submitted that the CIT(A) properly considered the sale transactions and quantified it at ₹ 4,88,75,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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