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TMI Blog2024 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... l development agreement was considered by the ITAT for AY 2011-2012 and the ITAT has held that the amount was not taxable in the hands of Petitioner. In the order passed under Section 148A(d) of the Act, the AO has not dealt with any of these submissions of Petitioner. Therefore, in our view, such an order which does not deal with the submissions of Petitioner, cannot be sustained. In the result impugned order is hereby quashed and set aside. The consequential notice issued u/s 148 of the Act is hereby quashed and set aside.The matter is remanded to the AO for de-novo consideration. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 31st July 2018 allowed the appeal of Petitioner by holding that Petitioner had entered into the development agreement on behalf of its members, all compensations were to be paid to the members and since the members had paid all the tax on compensation, nothing further can be taxed in the hands of Petitioner as there cannot be double taxation. This order of ITAT has been affirmed by this Court in Income Tax Appeal No. 1642 of 2017 dated 14th February 2024. The ITAT also relied upon the ruling of its Coordinate Bench in the case of MIG Co-operative Housing Society Group-II Limited v. Income Tax Officer ITA No. 896/Mum/2016 dated 17th February 2017. 4. For the year under consideration, i.e., AY 2016-2017, Petitioner received a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructed flats; 2. Corpus funds of the society; 3. Parking Construction; 4. Construction of Common Area and 5. Recreation Area/Garden construction. The incidence of tax arises at the point of gain and in the hands of the beneficiary, which in the instant case is the Society. Even though, the members of the Society are the end / eventual beneficiaries, the incidence of tax arises in the hands of the Society, which is the first beneficiary to the gain arising from the transaction by virtue of being the possessor of the land. It is therefore, the gain / profit arising from surrender of additional F.S.I. and other beneficial interest arising on account of amendment of DCR, for which the cost of acquisition to the Society is N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers, liability to pay capital gain is on the assessee………..." 6. Petitioner replied to the notice vide a letter dated 27th February 2023. Petitioner explained that as regards the first issue of Rs. 76,85,46,696/- being the value in lieu of additional FSI plus Fungible FSI, the same was subject matter of assessment proceedings and therefore, it was a clear case of change of opinion. As regards the second part of Rs. 48,66,78,051/-, Petitioner explained that the same issue under the original development agreement was considered by the ITAT for AY 2011-2012 and the ITAT has held that the amount was not taxable in the hands of Petitioner. 7. In the order dated 23rd March 2023 passed under Section 148A(d) of the Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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