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TMI Blog2023 (11) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... of construction incurred by the builder. If the petitioner could indeed justify that there was no actual income/ receipt or expenditure but has claimed the cost incurred by the builder towards the construction of the units allotted to him under the Joint Development Agreement and sold for deduction u/s 148, such justification be specifically considered and reasoned why, despite there being no income, there would be escape of income justifying reopening of the assessment u/s 147 and 148 - This Court must opine that the petitioner is categorical that he has not received any income in the AY 2016-17 but has claimed a notional expenditure in the next Assessment Years while declaring capital gain, the merit of such claim should be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain residential units and some of these units have been transferred during the financial years 2016-17 and 2017-18. 3. The first respondent in this petition has issued notice under Section 148A[b], and the reasons recorded for re-assessment read as under: As per information received from ITO, (I CI), Bangalore, the assessee claims a considerable amount towards improvement details including cost of construction and payment to Bescom, BWSSN department, for which no justifiable clarifications/submissions are done in-spite of several reminders and opportunities given, which construes that the assessee has nothing to offer in support of his claim. The tax provision upon the execution of JDA had also not been complied with. The details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared the same by filing ITR, and therefore, there is escapement of tax. However, this may not be justified if the petitioner s case as seen in the reply filed as per Annexure-E is considered. 5. The petitioner, in furnishing details of the cost of improvement [as expenses incurred], has referred to the cost of construction incurred by the builder. The response reads as under: Computation of capital gain: Asst year 2017- 18 Rs. Sale consideration - Residential flat sold (25.11.2016) 5434350 Less: Commission or brokerage and incidental expenses 54345 Net Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rongly interpreted that low claim made by the assessee while filing the original return was the basis and assumed that there is a escapement of income. Computation of capital gain: Asst Year 2018-19 . Rs. Sale consideration residential flat sold (02.07.2017) 6000000 Less: Commission or brokerage and incidental expenses 0 Net sale consideration 6000000 Cost of the acquisition: Cost of improvement i.e. Interiors cost NIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agreement and sold for deduction under Section 48 of the IT Act, such justification be specifically considered and reasoned why, despite there being no income, there would be escape of income justifying reopening of the assessment under Sections 147 and 148 of IT Act. This Court must opine that the petitioner is categorical that he has not received any income in the Assessment Year 2016-17 but has claimed a notional expenditure in the next Assessment Years while declaring capital gain, the merit of such claim should be considered before concluding that there is escapement of tax. 7. The first respondent has not considered this material circumstance, and therefore, there must be interference by this Court to restore the proceedings for re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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