KUMAR SAURAV,PATNA vs. ITO WARD 6(3), PATNA

The captioned appeal has been preferred by the assessee against the order dated 29.02.2024 of the Ld. Commissioner of Income Tax (Appeal), ADDL/JCIT(A)-1, Gurugram [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) 2014-15.

No one has put an appearance on behalf of the assessee despite notice. But an adjournment application has been placed on file. However, considering the facts and grounds taken in the appeal, we proceed to take the appeal for hearing and dispose of the same on merits after hearing the Ld. DR.

This appeal of the assessee is time barred by 45 days. A separate application for condonation of delay has been filed. Considering the averments made in the application and shortness of delay, the delay in filing the appeal is hereby condoned.

The main issue involved in this appeal is as to whether the tax on account of capital gain is to be done in the year in which the development agreement was executed or in the year in which the assessee received possession of the flat on completion of construction. The other issue raised by the assessee in this appeal is that the flats so constructed would be eligible for deduction u/s. 54F of the Act. Another issue raised by the assessee is that in fact, the land in question was of HUF and not of the assessee in individual capacity and, therefore, the tax, if any, was to be levied on HUF and not on the assessee. The assessee has also taken the plea that the cost of acquisition of land was nil, therefore, the capital gain could not be computed. We note that the aforesaid pleas have not been examined by the lower authorities in correct perspective which ought to have been decided after examining the nature of the agreement and as to whether the transfer was complete on the date of execution of development agreement as per definition of transfer u/s. 2(24) of the Act or as to whether the same was complete on the date of completion of construction and handing over of possession of flat to the assessee. Further, whether the property in question was of the HUF or of the assessee in individual capacity. All the issues are required to be examined after proper appreciation of the evidences on the file and also after considering the submissions of the assessee.

We, therefore, set aside the impugned order of the Ld. CIT(A) and restore the matter to the file of the AO for decision afresh on this issue in accordance with law. Needless to say, that the AO will properly examine the evidences on file and will give proper opportunity to the assessee to present his case and thereafter pass a speaking order in accordance with law. Page 2 of 3

In the result, appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 15th January, 2025.