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TMI Blog2021 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the case would be covered under Section 45(3) - As per Section 45(3) of the Act, whenever a partner contributes any capital asset in the partnership firm, then the value of capital asset recorded in the books of account of the firm is to be considered as the full value consideration for the purpose of computing capital gain. In the present case, we find that no any amount was credited by the firm in the account of the assessee as a consideration for the land in question during the year AY 2009-10. The record further indicates that the full value of consideration of the transfer of said land being recorded was NIL. Under such circumstances, we are of the view that since the transfer of land as a part of capital contribution the partnership firm took place in the year 2008, the same can be assessed only in the AY 2009-10 and not in the AY 2011-12. Therefore, for the year under consideration no amount of capital gain could be said to have taxable. Reasons lack validity and the AO had proceeded on erroneous premise and there was no sufficient material before the AO to take a prima-facie view that income of the assessee for the year under consideration has escaped assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and therefore, same was supplied on 9.8.2018. The writ applicant vide letter dated 4.10.2018 raised various objections and same came to be rejected by the revenue vide order dated 5.10.2018. 3.4 The reasons recorded for the year 2011-12, which reads as under: . This office has received information from the Income Tax officer Ward2(4) Kalyan, vide his letter No. KYN/ITO/WD2(4)/ information/SNE/2017-18 dated 14.03.2018, that the assessee has sold land to M/s. Swaminarayan Enterprises during the period FY 2010-11 2011-12. Information contains Transactions ledgers from the books of M/s. Swaminarayan Enterprises in name of Manoj Tikmani. Copy of balance-sheet for the year ending March, 2011 copy of notes to accounts. On perusal of accounts/inforamtion s, the assessee has received ₹ 60,50,000/- upto 31.03.2010, ₹ 2,06,60,000/- received during the F.Y. 2010-11 through various cheques issued by the transferee, firm transaction of ₹ 63,65,158/- recorded in books of reflecting, the assessee as sundry creditors. On verification of income of the assessee, as narrated in above para-2, transactions for transfer land, made by the assessee is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra-2, transactions for transfer land, made by the assessee is required to be verified, so as to verify genuineness of transaction actual amount of capital gain earned by the assessee. It is also require to verify the value of land considered is at market/juntry value as on dated or not? 6. The assessee has made transactions for transfer of land to M/s. Swaminarayan Enterprise. The assessee has received payments of ₹ 89,65,972/- + ₹ 15,00,000/) ₹ 1,04,65,972/ during the FY 2011-12. Out of 112 flats constructed on the said land, 12 flats sold/entered into agreements with registration with sub-registrar of Assurances. In view of the above, I have reason to believe that the income in the case of the assessee is escaped. 7. In view of the above, Transactions made by way of purchase of properties in the financial year 2011-12 relevant to the AY 2012-13, has escaped income more than ₹ 1,00,000/- within the meaning of section 147 of the Act. 8. As reasons for reopening are provided, you are requested to file your reply/submission and objections, if any on or before 23/08.2018 in E proceeding facility through your account in e-Filling website of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s escaped assessment as the transaction of introduction of land by the assessee as capital asset was between the assessee and the firm. There is no evidence to hold that the assessee has received income greater than what is offered by him for tax, in such circumstances there is no income has escaped assessment (vii) In support of aforesaid contentions, Shri S.N. Soparkar, the learned Senior Counsel placed reliance on the following decisions : (i) Nisharahemad Vajirkhan Pathan Vs. Income Tax Officer, reported in (2021) 123 taxmann.com 448 (Gujarat) (ii) Hitachi HI REL Power Electronics Vs. Asst Commissioner of Income tax, reported in (2020) 122 taxmann.com 79 (Gujarat) (iii) Amar Jewellers Ltd Vs. Deputy Commissioner of Income tax, reported in (2018) 92 taxman.com 259 (Gujarat) (iv) Narendrakumar Mansukhbhai Patel Vs. Income Tax Officer, reported in (2018) 92 taxmann.com 74 (Gujarat) (v) Sunrise Education Trust Vs. Income Tax Officer, reported in (2018) 92 taxmann.com 74 (Gujarat) (vi) Swati Malove Divetia Vs. Income Tax Officer, reported in (2018) 98 taxmann.com 447 (Gujarat) (vii) Sunil Siddharthbhai Ors. Vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008. Undisputedly, the land in question was not transferred in the name of Firm. It is a settled law that where immovable property is transferred by a partner to the firm as a capital contribution and registration does not take place by paying stamp duty, the case would be covered under Section 45(3) of the Act. As per Section 45(3) of the Act, whenever a partner contributes any capital asset in the partnership firm, then the value of capital asset recorded in the books of account of the firm is to be considered as the full value consideration for the purpose of computing capital gain. 12. Section 45(3) says that the profits or gains arising from the transfer of capital asset by the person to a firm in which he is or becomes a partner by way of a contribution or otherwise, shall be chargeable to tax as his income of the previous year in which such transfer takes place and for the purposes of Section 48, the amount recorded in the books of account of the firm, as the value of the capital asset shall be deemed to be the full value of the consideration received or accruing as a result of transfer of capital asset. 13. In the present case, we find that no any amount was credited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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