ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE - 6,, PUNE vs. SUREKHA SUDHAKAR JADHAVAR,, PUNE

This Revenue’s appeal for Assessment Year 2014-15 is directed against the Commissioner of Income Tax(Appeals)-4, Pune’s order dated 05.05.2017 passed in case no.PN/CIT(A)-4/ITO, Wd-6(2), Pune/360/2016-17, in proceedings u/s.143(3) of the Income Tax Act, 1961 [in short “the Act”].

The Revenue proposes the following substantive ground in the instant appeal. “1. The CIT(A) erred both on facts and in law in passing the order. 2. The CIT(A) erred in holding that there was no transfer during the current assessment year despite the fact that A.Y. 2011-12 (R) Surekha Sudhakr Jadhavar the assessee by entering into the Joint Venture Development Agreement with the builder has given possession and irrevocable rights of the property to the said builder, which construed transfer u/s 45(1) of the I.T.Act, 1961 r.w.s 2(47) of the I.T.Act, 1961.

The CIT(A) erred in holding that there was no transfer during the current assessment year as per provisions of Sec 2(47) of the I.T.Act 1961 r.w.s 53A on the Transfer of Property Act, 1882, even when the required condition laid out u/s 2(47) of the I.T.Act 1961 was fulfilled which led to “transfer” of a Capital Asset. 4. For these and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored.” 3. There is hardly any dispute between the parties that Revenue’s foregoing sole substantive grievance seeks to revive the Assessing Officer’s action making long term capital gains addition of Rs.37563656/- made in the course of assessment herein dated 30.12.2016 after holding the assessee’s registered development agreement dated 08.04.2017 in favour of M/s.Venkatesh Associates regarding her land in village Dhayari, Tal. Haveli, Dist. Pune; as an incident of transfer attracting section 2(47)(v) r.w.s 53A of the Transfer of Property Act, 1882. 4. It emerges during the course of hearing that the assessee has filed her additional submissions dated 01.08.2022 by way of her duly sworn in affidavit dated 21.07.2022 (along with development agreement hereinabove dated 08.04.2013) inter-alia pleading therein that the same stands frustrated since not performed from the A.Y. 2011-12 (R) Surekha Sudhakr Jadhavar developer’s side within the specified period of three years. Learned counsel reiterated the assessee’s averments that her land in issue has neither witnessed change in its user nor the developer party raised any construction thereupon till date. He quotes [2020] 115 taxmann.com 5 (SC) Seshasai Steels India Limited vs. CIT and CIT vs. Balbir Singh Maini [2017] 86 taxmann.com 94 (SC) that capital gains in such an instance of frustration of development agreement do not arise for taxation.

Faced with this situation, learned DR submitted that the assessee’s foregoing additional averments require factual verification at the Assessing Officer’s end. We therefore deem it appropriate to restore the Revenue’s instant sole substantive grievance back to the Assessing Officer for his afresh adjudication as per law within three effective opportunities of hearing. Ordered accordingly.

This Revenue’s appeal is allowed for statistical purposes in above terms.