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TMI Blog2022 (8) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined the LTCG at Rs. 1,08,08,283/-. We find in appeal, the learned CIT (A) following the decision of the Coordinate Bench of the Tribunal in the case of K. Vijaya Lakshmi [ 2018 (3) TMI 138 - ITAT HYDERABAD] held that the provisions of section 45(5A) cannot be applied retrospectively. Similarly, following the decision of the Hon ble A.P High Court in the case of Potla Nageswar Rao [ 2014 (8) TMI 636 - ANDHRA PRADESH HIGH COURT] where it has been held that the transfer is complete on the execution of the JDA, he held that the assessee is liable to capital gain tax in the impugned A.Y i.e. A.Y 2016-17 when the Jt.Development Agreement was entered into between the assessee and M/s. Dhanush Builders developers for development of the property. We do not find any infirmity in the order of the learned CIT (A) on this issue. Since the learned CIT (A) in his detailed order has decided the issue regarding the year of taxation of the capital gain and also the manner in which the capital gain should be computed which is based on the decision of the jurisdictional High Court and the Coordinate Bench of the Tribunal. Therefore, we do not find any infirmity in the order of the learned CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undry according to which the fair market value of the land as on 01.04.1981 was Rs.10,000/- per acre. He noted that in this case the transfer of property was in square yards. In the absence of information, he computed the fair market value of the transferred property i.e. 791 square yards proportionately at Rs.1,648/- (10000/4800 X 791). Basing on the information available, he computed the capital gains as under: Consideration on transfer of property (being 40% of the project as discussed in the order) Rs.1,08,20,000 Indexed cost of acquisition as discussed in the order 1648 X 711/100 Rs. 11,717 Long Term Capital Gains (LTCG) Rs.1,08,08,283 4. Before the learned CIT (A), the assessee challenged the addition of Rs.1,08,08,283/-on account of Long Term Capital Gain. The assessee also submitted that the capital gain cannot be added in the impugned A.Y since she didn't get the possession of the flats during the impugned A.Y. It was submitted that the capital gain would be admitted in the A.Y relevant to the previous year in which the possession of the flat is handed over. 4.1 However, the learned CIT (A) was not satisfied with the arguments advanced by the assessee. Following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was framed and thereby erred in holding that the year of assessability is the year in which development agreement is entered into. 5. (Tax effect - Rs.33,39,760). For these and other grounds that may be urged, it is prayed that the Hon'ble Tribunal may be pleased to allow the appeal. 6.1 Additional Grounds: "On the facts and circumstances of the case, the authorities below has erred in not considering the deduction claimed u/s.54F of the Act which was claimed in the return of income" 7. Referring to the decision of the Hon'ble Supreme Court in the case of NTPC Vs. CIT reported as (1998) 229 ITR 383, the learned Counsel for the assessee submitted that the additional ground being a legal ground and do not require fresh investigation of facts should be admitted for adjudication. 8. The learned DR, on the other hand, opposed the admission of the additional ground stating that it is not a legal one and requires verification of fact. He drew the attention of the Bench to the report of the Assessing Officer on admission of the additional ground which reads as under: "Office Of the Income Tax Officer, Ward 11(1) Room No 507, Signature Towers 5th Floor Opp Bota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30 11 2018 vide Ack No 393032940231218 dated 23 12 2018 declar1ng following income particulars: (i) Profit or gains from business/ Profession … Rs 30.000/ (ii) Income from Long Term Capital Gain.. Rs. 54.27.033/- (iii) Income from Other Sources .. Rs.3,36,886 (iv) Gross Total Income - Rs 57,93, 919 (v) Agricultural Income - Rs 2,31,250 Further. on verification of "Schedule CG of the ITR, is found that the assessee has claimed gross value of sale consideration of Rs 76,56,000/- and arrived Iong term capital gain of Rs 63,84,033/- after reducing the indexed Cost Of Acquisition. The assessee claimed deduction u/s 54 of IT Act 1961 of Rs 000/- and determined taxable income chargeable under Long term capital Gain of Rs 54, 27, 033/-. 5. On verification of assessment record, it is evident that the notice u/s 1432) was issued on 16. 09. 2017 selecting the case for scrutiny against the return tiled oy as U/s 139(4) dated 24 03.2017. The notice u/s 142(1) of IT Act 1951 issued 12 01 2018. 19.06 2018 and 19 09 2018 to call for the information as specified in said notices as per the clause (i) of sub section (1) of section 142 and no notice has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CIT (A) in confirming the action of the Assessing Officer. He submitted that the first question that has to be adjudicated in the instant case is that for the purpose of computation of capital gain whether the date of development agreement or the date of delivery of the flats are to be considered and the 2nd question that arises is regarding the bifurcation of the composite value of the land and building. So far as the computation of the capital gain on the basis of the JDA is concerned, the learned Counsel for the assessee referring to various decisions submitted that the capital gain arises when possession of constructed flat is given. 11. Soi far as the computation of capital gain is concerned, he submitted that the Assessing Officer has considered the sale consideration by taking 40% of the value adopted by the SRO in the development agreement for land and building and arrived at Rs.1,08,20,000/-. He submitted that the development agreement itself is for transfer of 60% of land, and the assessee received 40% constructed area. What is sale consideration is value of the 40% super structure only since value of 40% of land cannot be treated as sale consideration as it is owned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be dismissed. 14. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the assessee in the instant case has entered into a Joint Development Agreement cum-GPA with M/s Dhanush Builders & Developers for development of 791 sq.yards bearing Plot No.27 & 28, R.S. No.189/4A, Narayanapuram, Rajahmundry, A.P vide doc No.2038/2016 dated 24.02.2016. As per the agreement, she got 8 Flats of 1100 sq.ft. each. The total market value of the project as per the document (SRO) is Rs.2,70,50,000/- (land value Rs.79,10,000/- and market value of constructed area is Rs. 1,91,40,000/-. Since the assessee had not disclosed the land transfer transaction in her return of income, the Assessing Officer after considering the share of the assessee in the project at 40% determined the consideration and transfer of the property at Rs. 1,08,20,000/-. After deducting the indexed cost of acquisition of Rs. 11,717/- he determined the LTCG at Rs. 1,08,08,283/-. We find in appeal, the learned CIT (A) following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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