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Tax Publishers 2018 TaxPub(DT) 0235 (Bang-Trib) : (2018) 061 ITR (Trib) 0159

 

ITO v. Arvind Goverdhan & Ors.

 

INCOME TAX ACT, 1961

--Capital gains--Year of taxabilityJoint development agreement to develop property----The year in which possession of the property has been handed over to the developer as per the joint development agreement, capital gain was liable to tax in that year and not in the year in which the project has been completed.--The joint development agreement had been executed on 27-11-2008 and the owners of the land had handed over the free and vacant possession of land to the developer for the purpose of developing the same along with the remainder portion of schedule |A| property. As per the letter dated 16-4-2013 intimating to the, assessees about payment of maintenance charges by them with effect from 1-4-2013, it was also intimated that the maintenance charges shall be paid on or before handing over possession of the apartment. The AO taxed capital gain on basis of joint development agreement which was also registered in relevant assessment year. The CIT(A), however, held otherwise. Held: Since in the present case, not only the joint development agreement was executed but possession was also handed over to the developer and non-refundable deposit was received by the assessee to the extent of Rs. 2.50 crores. Since, in the present case, the joint development agreement in question was duly registered, the year in which possession of the property had been handed over to the developer as per the joint development agreement, capital gain was liable to tax in that year and not in the year in which the project has been completed.

Income Tax Act, 1961 Section 45

Income Tax Act, 1961 Section 2(47)(v)

Transfer of property Act, 53A

Relied: CIT v. Dr. T. K. Dayolu (2011) 202 Taxman 531 (Karn). Distinguished: Chaitanya Properties (P). Ltd. v. Joint CIT (OSD) in ITA Nos. 52 and 125/Bang/2013 dated March 27, 2015 and K.M. Nagaraj and Smt. Sathya rema v. CIT in ITA Nos. 136 and 137/Bang/2012 dated 14-8-2014.

REFERRED :

FAVOUR : Against the assessee.

A.Y. : 2009-10 & 2010-11


 

INCOME TAX ACT, 1961

--Appeal [CIT(A)]--Additional evidenceAdmissibility----Where CIT(A) decided issue on the basis of the evidence made available before him for the first time without obtaining remand report from the AO and hence, there was violation of rule 46A of the Income Tax Rules, 1962 as shire issue has restored back of CIT(A) to decide o fresh. --On the basis of documents, etc., additional evidence was furnished first time before CIT(A) and he decided the issue without obtaining remand report from AO.Held: The issue regarding sources for mutual fund investment was decided by the CIT(A) on the basis of the evidence made available before him for the first time without obtaining remand report from the AO and hence, there was violation of rule 46A of the Income Tax Rules, 1962 and the order of the CIT(A) was set aside on this issue and the this matter was restored back to the file of the CIT(A) for fresh decision after obtaining remand report from the AO.

Income Tax Act, 1961 Section 250

Income Tax Rule, 1962 Rule 46A

REFERRED :

FAVOUR : Matter remanded.

A.Y. : 2009-10 & 2010-11


 

INCOME TAX ACT, 1961

--Income--Accrual

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