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Facts
The assessee filed an appeal against the order of the CIT(A) for AY 2015-16. The appeal was filed with a delay of 20 days, which was condoned. The issue pertains to the assessment of capital gains on the execution of a Joint Development Agreement (JDA). The assessee claimed that the JDA did not mature, the developer failed to construct, and the property was not transferred.
Held
The Tribunal noted that the assessee's appeal was time-barred but condoned the delay. Since the assessee did not appear, the Tribunal decided the matter based on the grounds of appeal and the arguments of the Ld. DR. The Tribunal observed that the Assessing Officer had assessed capital gains based on the execution of the JDA. However, the assessee contended that the JDA did not mature and the transfer was not complete.
Key Issues
Whether capital gains can be assessed on the execution of a Joint Development Agreement when the agreement did not mature and the property was not transferred.
Sections Cited
2(24), 250
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Income Tax Appellate Tribunal, PATNA BENCH, VIRTUAL HEARING AT KOLKATA
Before: SRI SANJAY GARG & SHRI SANJAY AWASTHI
Nandlal ………….. Appellant 456B, Neura Colony, Khagaul, Patna-801105, Bihar. (PAN: AMNPN0421D) Vs. ITO, Ward-6(3), Patna .............. Respondent Appearances: Appellant represented by: N o n e Respondent represented by: Shri Ashwani Kr. Singal, JCIT Date of concluding the hearing : 21.01.2025 Date of pronouncing the order : 21.01.2025 ORDER
Per Sanjay Garg, Judicial Member:
The captioned appeal has been preferred by the assessee against the order dated 01.11.2022 of the Ld. Commissioner of Income Tax (Appeal), National Faceless Appeal Centre, Delhi [hereinafter referred to as Ld. ‘CIT(A)’] u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) for Assessment Year (AY) 2015-16.
The appeal of the assessee is time barred by 20 days. A separate application for condonation of delay has been placed in file. Considering the shortness of the delay period, delay in filing the appeal is hereby condoned.
The sole issue involved in this appeal is relating to the assessment of capital gains made by the Assessing Officer on account of execution of Joint Development Agreement (JDA) by the assessee in respect of his land. No one
I.T.A. No.: 16/PAT/2023 Nandlal, AY : 2015-16 has put an appearance on behalf of the assessee despite notice. However, on perusal of the grounds of appeal as well as after hearing the Ld. DR, we are of the view that the matter can be decided after taking into consideration the plea of the assessee, therefore, we proceed to decide the matter
The Assessing Officer, in this case, assessed the capital gains observing that the assessee had executed a JDA with the developer and that on execution of the JDA, transfer of the land as per the provisions of section 2(24) of the Act was complete. He, therefore, calculated the notional income that accrued to the assessee on execution of the JDA. However, in the grounds of appeal, the assessee has specifically pleaded that the said JDA did not mature, the developer failed to make construction and handover the developed property to the assessee. That the transfer of the property was not complete on the execution of the development agreement. That neither any income has been earned nor accrued to the assessee. Considering the aforesaid plea, the matter is required to be factually examined by the Assessing Officer. We, therefore, set aside the impugned order of the Ld. CIT(A) and restore the matter to the file of the Assessing Officer with a direction to verify the aforesaid contention raised by the assessee and, thereafter, to make the assessment afresh on this issue. Needless to say, the AO will give proper opportunity to the assessee to present his case and thereafter to decide the matter in accordance with law. With the above observation, the appeal of the assessee is treated as allowed for statistical purposes.
In the result, the appeal of the assessee is treated as allowed for statistical purposes.