Case Law Details
Shilpa Vitthal Jadhav Vs ITO (ITAT Pune)
AO considered sale of plot as per development agreement of Rs.50,00,000/- as the share of assessee but, I find no reference whatsoever regarding the exact share of assessee pointing out in the said development agreement. The contention of ld. AR is that the AO considered the said amount on notional basis without pointing any terms and conditions of the said development agreement. It is also true to the effect that the ld. AR reported his inability to furnish the said development agreement before this Tribunal due to various reasons but however pleaded that the assessee is ready to produce all the details rebutting the computation made by the AO vide para No. 9.2 of the assessment order. I find that the view of AO in para No. 9.1 of the assessment order that the buyer i.e. Adarsh Vastu Nirmiti Pvt. Ltd. has absolute right over the subjected property and the assessee and other owners transferred their ownership in favour of the developer Adarsh Vastu Nirmiti Pvt. Ltd. to discharge liability in terms of the loan availed vide mortgaged deed. Therefore, it is clear that the developer Adarsh Vastu Nirmiti Pvt. Ltd. is entitled to receive entire amount of purchase money from the prospective purchasers to the exclusion of assessee and others, undoubtedly, not in one year but extending to many years depending on the sale of plots/flats to the prospective purchasers. Therefore, it is clear the sale consideration which is said to have been taxed in the hands of the assessee not been accrued to the assessee in the year under consideration, but is extending to many years, if that is the case the order of AO in computing the short term capital gains vide para No. 9.2 is not justified, but taking into consideration the repayment by way of EMI’s by the developer to Karad Janata Sahakari Bank Ltd. on behalf of the assessee is to be considered for taxation as actual receipt towards sale consideration in the respective assessment years. Admittedly, the consideration or sale of plot as per development agreement as considered by the AO at Rs.50,00,000/- has not been accrued to the assessee, therefore, the AO is directed to compute the short term capital gains depending on the repayment by way of EMI on behalf of the assessee towards mortgaged loan by the developer to the share of assessee. The assessee shall provide all the details in that regard. Therefore, I hold the property belonging to the assessee and others was transferred to developer Adarsh Vastu Nirmiti Pvt. Ltd. u/s. 2(47) of the Act and the assessee is liable to be taxed for short term capital gains as indicated above. The AO shall complete the assessment by giving reasonable opportunity of hearing to the assessee and the assessee is liberty to file all the evidences, in support of her claim.
FULL TEXT OF THE ORDER OF ITAT PUNE
Both the appeals by the different assessees against the common order dated 31-01-2019 passed by the Commissioner of Income Tax (Appeals)-13, Pune [‘CIT(A)’] for assessment year 2011-12.
2. Since, the issues raised in both the appeals are similar basing on the same identical facts. Therefore, with the consent of both the parties, we proceed to hear both the appeals together and to pass a consolidated order for the sake of convenience.
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