Shri Omkar Chimaji Zinjurde, Pune V. ITO,(CIB)-2, Pune, Pune

ITA 362/PUN/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2511 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 31-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Assessee Lawyers: N O N E
• Keywords: Validity of assessment
• Section: 54B; 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 362/PN/2011 %' ( ')( / ASSESSMENT YEAR : 2005-06 SHRI OMKAR CHIMAJI ZINJURDE, AT PIMPLE SAUDAGAR, PUNE PAN : AAGPZ1268D ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, (CIB) 2, PUNE / RESPONDENT / ITA NO. 363/PN/2011 %' ( ')( / ASSESSMENT YEAR : 2005-06 SHRI NAMDEO CHIMAJI ZINJURDE, AT PIMPLE SAUDAGAR, PUNE PAN : ADLPS6324H ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, (CIB) 2, PUNE / RESPONDENT / ITA NO. 364/PN/2011 %' ( ')( / ASSESSMENT YEAR : 2005-06 SHRI BALKRISHNA CHIMAJI ZINJURDE, AT PIMPLE SAUDAGAR, PUNE PAN : AAAPZ8247L ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, (CIB) 3, PUNE / RESPONDENT 2 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 ASSESSEE BY : N O N E REVENUE BY : SHRI MANISH KUMAR SINGH / DATE OF HEARING : 18-02-2016 / DATE OF PRONOUNCEMENT : 18-03-2016 * / ORDER PER VIKAS AWASTHY, JM : THESE THREE APPEALS HAVE BEEN FILED BY THE ASSESSEES IN THEIR RESPECTIVE CASES IMPUGNING THE ORDER OF COMMISSIONER OF IN COME TAX (APPEALS)-CENTRAL, PUNE FOR THE ASSESSMENT YEAR 2005-06. SINCE, THE APPEALS ARE ARISING FROM SAME SET OF FACTS, THESE APPEALS A RE TAKEN UP TOGETHER FOR ADJUDICATION. 2. THESE APPEALS WERE FILED IN THE YEAR 2011. A PERUSAL O F CASE FILE SHOWS THAT THE ADJOURNMENTS WERE SOUGHT TIME AND AGA IN ON BEHALF OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEES. DURING THE PENDENCY OF THE APPEAL THE ASSESSEES CHANGED THEIR COUNSEL IN THE Y EAR 2013. THE SECOND COUNSEL REPRESENTING THE ASSESSEES AGAIN SOUGHT SEVERAL ADJOURNMENTS. THEREAFTER, ON 18-05-2015 THE COUNSEL RE PRESENTING THE ASSESSEES WITHDREW HIS POWER OF ATTORNEY. FRESH NOTICES WERE ISSUED TO THE ASSESSEE FOR 10-08-2015. ON 10-08-2015 THE ASSES SEES APPEARED IN PERSON AND MADE WRITTEN REQUEST FOR ADJOURNMENT. TH E REQUESTS OF THE ASSESSEES WERE ACCEPTED AND THE APPEALS WERE ADJ OURNED TO 08-10-2015. AGAIN ON 08-10-2015 THE ASSESSEES MADE W RITTEN REQUEST FOR ADJOURNING THE APPEALS. IN THE INTEREST OF JUSTICE, TH E APPEALS WERE ADJOURNED TO 07-11-2015 AS LAST AND FINAL OPPORTUNITY. O N 17-11-2015 THE BENCH DID NOT FUNCTION AND THE APPEALS WERE FIXED FOR HEARING ON 3 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 18-02-2016. NOTICES OF THE NEXT DATE OF HEARING I.E. 18-02 -2016 WERE ISSUED TO THE ASSESSEES THROUGH RPAD. TODAY, NEITHER T HE ASSESSEES NOR ANY OF THEIR AUTHORIZED REPRESENTATIVE HAVE PUT IN A PPEARANCE. THE APPEALS ARE QUITE OLD AND REPEATED ADJOURNMENTS WERE G RANTED TO THE ASSESSEES, DESPITE THE FACT LAST AND FINAL OPPORTUNITY WAS GRANTED TO THE ASSESSEES ON 08-10-2015 NONE HAS APPEARED ON BEHALF O F THE ASSESSEES TODAY. IT IS APPARENT FROM RECORD THAT THE ASSESSEE S ARE NOT PURSUING THEIR CASES DILIGENTLY. THUS, WE ARE DECIDING THESE APPEA LS WITH THE ASSISTANCE OF LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 3. FOR THE SAKE OF CONVENIENCE WE ARE TAKING FACTS FROM ITA NO. 362/PN/2011. THE ASSESSEE HAS IMPUGNED THE ORDER OF C OMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING ELABORATE GROUNDS: 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL PUNE ERRED IN NOT ACCEPTING THE GROUND OF APPEAL THAT THE ASSESSMENT WAS BARRED BY LIMITATION SINCE IT WA S NOT COMPLETED BEFORE LIMITATION DATE OF 31-12-2007. THE LD. A.O. FAILED TO SUBMIT EVIDENCE BEFORE LD. C.I.T. (A) IN THE REMAND REPORT IN PROOF OF THE FACT THAT THE DISPATCH WAS BY RPAD PRIOR TO 31-12-2007. THE ASSESSMENT BEING BARRED BY LIMITATION BE QUASHED. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE ASSESSMENT FRAMED UNDER S. 143 (2) IS ALSO VITIATED IN LAW SINCE THE NOTICE UNDER S. 143 (2) WAS SERVED. THE A.O. IN HIS REMAND REPORT ADMITS THAT SINCE ASSESSEE HAS COMPLIED WITH PRIMAR Y NOTICES ISSUED UNDER S. 142 (1) THERE WAS NO QUESTION TO ISSUE FUR THER NOTICES U/S. 143 (2). THIS BEING THE TACIT ADMISSION OF THE A.O. THA T NO NOTICE U/S. 143 (2) WAS EVER ISSUED AND SERVED. THE LD. C.I.T. (A) OUGH T TO HAVE HELD THAT ASSESSMENT WAS ILLEGAL AND WITHOUT JURISDICTION. TH E ASSESSMENT BE QUASHED. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. ADDL. C.I.T. IN HIS FORWARDING LETTER OF A.O.'S REM AND REPORT ALSO ADMITTED THAT MANDATORY NOTICE U/S. 143 (2) WAS NOT SERVED AS IT WAS WAIVED BY ASSESSEE. THE LD. C.I.T. (A) OUGHT TO HAV E CONSIDERED THAT THE STATUTORY NOTICE U/S. 143 (2) CANNOT BE WAIVED. 4 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL, PUNE ERRED IN DISMISSING THE G ROUND OF APPEAL ON THE PARITY OF REASONING THAT SINCE THE ASSESSMENT WAS C OMPLETED UNDER S. 144 FOR NON-COMPLIANCE OF NOTICES U/S. 142 (1) THE GROUND OF APPEAL REGARDING NON-SERVICE OF STATUTORY NOTICE U/S. 143 (2) AFTER FILING OF THE RETURN. IN THE ABSENCE OF SERVICE OF NOTICE U/S. 14 3 (2) ASSESSMENT IS VITIATED IN LAW. THE LD. C.I.T. (A) WAS NOT CORRECT IN HIS VIEW THAT SINCE ASSESSMENT WAS EXPARTE UNDER S. 144 THERE WAS NO RE QUIREMENT TO SERVE NOTICE U/S. 143 (2) OF THE ACT. THE ASSESSMENT, THE REFORE, BEING WITHOUT JURISDICTION AND ILLEGAL BE QUASHED. 5) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL, ERRED IN HOLDING THAT THE PROP ERTY THAT IS AGRICULTURAL LAND DID NOT BELONG TO JOINT HINDU FAMILY WHICH WAS SUBSEQUENTLY PARTITIONED AND EVERY MEMBER OF THE ERSTWHILE FAMIL Y INVESTED IN THE PURCHASES OF AGRICULTURAL LAND HIS SHARE RECEIVED O N SALE. THAT EACH MEMBER WAS ENTITLED TO CLAIM DEDUCTION/ EXEMPTION U NDER S. 54-B OF THE ACT AS INVESTMENT WAS MADE FOR THE PURCHASE OF NEW AGRICULTURAL LAND. THE LD. C.I.T. (A) CENTRAL ERRED IN DENYING SUCH EX EMPTION AVAILABLE UNDER THE ACT. 6) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. ADDL. COMMISSIONER ACCEPTED IN HIS REMAND REPORT TH AT THE ASSESSEE/ APPELLANTS WERE ENTITLED FOR EXEMPTION U/S. 54-B OF THE ACT AS THEY HAVE COMPLIED ALL THE PARAMETERS OF THAT SECTION. THE LD . C.I.T. (A) - CENTRAL OUGHT TO HAVE CONSIDERED THIS REPORT IN ITS PROPER PERSPECTIVE. 7) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL PUNE WAS NOT JUSTIFIED IN REJEC TING THE CLAIM THAT ORIGINALLY LAND BELONGED TO HUF SINCE KARTA OF THE FAMILY BECAME OWNER OF THE AGRICULTURAL LAND AFTER THE DEATH OF HIS SIS TER IN THE YEAR 1929 THAT IS PRIOR TO COMING INTO FORCE OF THE HINDU SUCCESSI ON ACT, 1956. THAT WAS UNDER SHASTRIK HINDU LAW. AFTER 1956 ACT IT CONTINU ED AS HUF PROPERTY TILL IT WAS SO PARTITIONED. IT BE HELD ACCORDINGLY. 8) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL, PUNE ERRED IN APPLYING THE DEC ISION OF THE HON'BLE BOMBAY HIGH COURT IN CHATURBHUJ DWARKADAS KAPADIA V . C.I.T., (2003) 260 ITR 491 (BOM.) THAT JUDGMENT IS DISTINGUISHABLE ON FACTS AND LAW. THE PROVISIONS OF S. 2 (47)(V) RWS 53-A OF THE TRAN SFER OF PROPERTY ACT ARE NOT APPLICABLE TO THE FACTS OF THIS CASE. THE TAXAT ION OF CAPITAL GAIN IN A.Y. 2005-06 IS WITHOUT JURISDICTION. IN THE ABSENC E OF TRANSFER OF ASSET/ 5 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 LAND IN A.Y. 2005-06 UNDER APPEAL THE LD. C.I.T. (A ) - CENTRAL ERRED IN HOLDING AGAINST THE APPELLANT AND DISMISSING THE GR OUND OF APPEAL. 9) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL, PUNE ERRED IN HOLDING THAT CAP ITAL GAIN WAS NOT TAXABLE IN A.Y. 2006-07 WITHOUT PROPERLY APPRECIATI NG THE LEGAL POSITION. 10) 0N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C.I.T. (A)- CENTRAL OUGHT TO HAVE CONSIDERED ALL TH E LEGAL GROUNDS SUPPORTED BY PROPER RULINGS IN THEIR PROPER PERSPEC TIVE. THE GROUNDS OF APPEAL HAVE BEEN DISMISSED WITHOUT PROPER APPLICATI ON OF MIND. 11) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW AND SINCE INCOME UNDER THE HEAD CAPITAL GAIN WAS TAXABLE IN A .Y. 2006-07 AND NOT IN THE YEAR UNDER APPEAL NO INTEREST UNDER SS. 234- A/234-B/ 234-C WAS LEVIABLE. OTHERWISE ALSO THE INTEREST WAS NOT LEVIA BLE. THE INTEREST LEVIED BE QUASHED. 12) THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER A NY OF THE ABOVE GROUNDS OF APPEAL. IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE OTHER ASSESS EES IN THEIR RESPECTIVE APPEALS. 4. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RE CORDS ARE: THE ASSESSEES ARE CO-OWNER OF THE LAND MEASURING 0.89 HECTO RS SITUATED AT VILLAGE-PIMPLE SAUDAGAR, DISTT.-PUNE. THE ASSESSEES ENTERE D INTO AN AGREEMENT WITH M/S. G.K. DEVELOPERS IN RESPECT OF THE SAID LAND. THE TOTAL CONSIDERATION RECEIVED BY THE OWNERS OF THE LAND FRO M M/S. G.K. DEVELOPERS WAS ` 1,60,20,000/-. SINCE, THE LAND WAS OWNED BY FIVE CO- OWNERS, THE CONSIDERATION WAS EQUALLY DIVIDED AMONG THEM . THE ASSESSEES HEREIN ACCORDINGLY HAD 1/5 TH SHARE EACH IN THE TOTAL CONSIDERATION. THE ASSESSEES FROM THE SALES PROCEEDS OF THE AFORESAID LAND PURCHASED ANOTHER PIECE OF AGRICULTURAL LAND MEASUREIN G 14H AND 50R ON 12-09-2005 FOR ` 1,50,00,000/-. THE AIR INFORMATION WAS 6 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 RECEIVED BY THE DEPARTMENT. ON THE BASIS OF INFORMATION R ECEIVED, NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEES ON 30-08- 2007. IN RESPONSE TO THE NOTICE THE ASSESSEES FILED THEIR RESPEC TIVE RETURN OF INCOME ON 28-12-2007 DECLARING NIL INCOME AND AGRICULTURA L INCOME OF ` 60,000/-. HOWEVER, THE ASSESSEE IN ITA NO. 364/PN/2011 NEITHER FILED RETURN OF INCOME NOR APPEARED BEFORE THE ASSESSING OFFICER. 5. THE STAND OF THE ASSESSEES BEFORE THE ASSESSING OFFICE R WAS THAT THE LAND SOLD BY THE ASSESSEES IS AN AGRICULTURE LAND. TH EREFORE, NO CAPITAL GAIN IS LEVIABLE. THE ASSESSEES FURTHER SUBMITTED TH AT SINCE, THE ASESSEES HAVE INVESTED THE SALE CONSIDERATION TOWARDS T HE PURCHASE OF ANOTHER PIECE OF AGRICULTURAL LAND, THEREFORE, THEY ARE ELIGIB LE TO CLAIM DEDUCTION U/S. 54B OF THE ACT. THE ASSESSING OFFICER IN SCR UTINY ASSESSMENT WHILE EXAMINING OF DEVELOPMENT AGREEMENT FOUND THAT THE LAND SOLD BY THE ASSESSEES IS LOCATED WITHIN THE DISTANCE OF 8 KM FROM THE LOCAL LIMITS OF PIMPRI CHINCHWAD MUNICIPAL CORPORATION. THE ASSESSING OFFICER HELD THAT THE LAND SOLD BY THE ASSESSEES DOES NOT FALL WITHIN THE DEFINITION OF AGRICULTURAL LAND U/S. 2(1A) OF THE ACT . THE ASSESSING OFFICER FURTHER HELD THAT THE ASSESSEES ARE NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 54B AS THE LAND WAS NEITHER AGRICULTUR AL LAND NOR IT WAS USED FOR AGRICULTURAL PURPOSES IN THE TWO YEARS IMM EDIATELY PRIOR TO THE DATE OF TRANSFER. AGGRIEVED BY THE ASSESSMENT ORDERS IN THEIR RESPECTIVE CASES, THE ASSESSEES PREFERRED APPEALS BEFORE THE COMMISSIONER OF IN COME TAX (APPEALS). BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) T HE ASSESSEES CHALLENGED THE ASSESSMENT ORDER ON THE GROU ND OF JURISDICTION, AS WELL AS MERITS. THE ASSESSEES ALLEGED THAT THE ASSESSMENT ORDER IS BARRED BY LIMITATION. THE NOTICES IS SUED U/S. 7 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 142(1) OF THE ACT IS ILLEGAL AND EVEN THE ASSESSMENT ORDER PASSED U/S. 143 IS ILLEGAL AS MANDATORY NOTICE U/S. 143(2) WAS NOT SERV ED ON THE ASSESSEES. THE COMMISSIONER OF INCOME TAX (APPEALS) SOUG HT REMAND REPORT FROM THE ASSESSING OFFICER ON THE ISSUES RAISED BY THE ASSESSEES. THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CON TENTION OF THE ASSESSEE WITH REGARD TO VALIDITY OF ASSESSMENT ORDER WITH THE FOLLOWING OBSERVATIONS: 5.5 I HAVE GONE THROUGH THE VARIOUS SUBMISSIONS MA DE BY THE APPELLANT IN RESPECT OF THESE GROUNDS OF APPEALS. I HAVE ALSO PERUSED ASSESSMENT ORDER, REMAND REPORT OF THE AO, FORWARDI NG NOTE OF THE ADDL.CIT AND OTHER MATERIAL AVAILABLE ON RECORD CAR EFULLY. A CAREFUL ANALYSIS OF THE MATERIAL AVAILABLE ON RECORD REVEAL S THAT VARIOUS CONTENTIONS RAISED BY THE APPELLANT IN RESPECT OF T HESE GROUNDS OF APPEALS ARE MISPLACED AND THEREFORE DESERVE TO BE R EJECTED. IN HIS REMAND REPORT THE AO NOWHERE MENTIONED THAT THE ASS ESSMENT WAS ..FINALIZED U/S. 144 OF I.T. ACT AND NOT U/S. 143 (3) AS MENTIONED BY ASSESSEE, EVEN IF SEVERAL OPPORTUNITIES OF BEING HE ARD WERE GIVEN TO THE ASSESSEE.' THEREFORE, THIS CONTENTION OF THE APPELL ANT IS NOT CORRECT. 5.6 I FULLY AGREE WITH THE FORWARDING NOTE OF THE A DDL.CIT THAT THE ASSESSMENT U/S.143(3) OF I.T. ACT IS A VALID ASSESS MENT KEEPING IN VIEW THE FACT THAT THE APPELLANT DID NOT FILE RETURN IN RESPONSE TO NOTICE U/S.142(1) OF I.T. ACT DT.30/8/2007 AND SUBSEQUENTL Y WAIVED THE RIGHT TO NOTICE U/S. 143(2) OF I.T. ACT AND THE APPELLANT WAS GIVEN REASONABLE OPPORTUNITY TO EXPLAIN THE CASE. HERE, THE WAIVER O F NOTICE U/S.143(2) WAS, IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. ACCORDING TO THE PROVISION S OF SEC.292B OF I.T. ACT, THIS ASSESSMENT CANNOT BE TREATED AS INVALID. PROVISIONS OF SEC.292B ARE REPRODUCED BELOW :- 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMM ONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUA NCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS, OR OTHER PROCE EDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR PROCEEDIN G IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE I NTENT AND PURPOSE OF THIS ACT. 8 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 IN VIEW OF THE CLEAR PROVISIONS OF SEC.292B OF I.T. ACT, NON-ISSUANCE OF NOTICE U/S.143(2) OF I.T. ACT IN PURSUANCE OF WAIVE R OF .THE SAID BY THE APPELLANT, THE COMPLETED ASSESSMENT CANNOT BE HELD AS AN INVALID ASSESSMENT. HERE IT MAY NOT BE OUT OF PLACE TO MENTION THAT, IN ACCORDANCE WITH THE PROVISIONS OF SEC.292BB OF I.T. ACT, THE APPELLANT CANNOT TAKE OBJECTION TO THE NON-ISSUANCE OF THIS NOTICE. PROVISIONS OF SEC. 292BB OF I.T. ACT ARE REPRODUCED BELOW :- 292BB. WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEE DING OR CO- OPERATED IN ANY INQUIRY RELATING TO AN ASSESSMENT O R REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UN DER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERV ED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE P RECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY U NDER THIS ACT THAT THE NOTICE WAS- (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE C OMPLETION OF SUCH ASSESSMENT OR REASSESSMENT. THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCE EDINGS NEVER TOOK ANY OBJECTION TO THE NON-ISSUANCE OF NOTICE U/S. 14 3(2) OF I.T. ACT. ON THE CONTRARY, HE WAIVED THE RIGHT TO RECEIVE NOTICE U/S .143(2) OF I.T. ACT. THEREFORE, PROVISIONS OF SEC.292BB OF I.T. ACT ARE CLEARLY APPLICABLE IN THE CASE OF APPELLANT. IN VIEW OF THE ABOVE DISCUSSION , GROUNDS OF APPEAL NOS.3,4, & 5 ARE DISMISSED. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN REJECTING THE OBJECTIONS RAISED BY THE ASSESSEES WITH REGARD TO VALIDITY OF THE ASSESSMENT ORDER. ACCORD INGLY, SAME IS UPHELD. 6. IN SO FAR AS THE DECISION OF COMMISSIONER OF INCOME TAX (APPEALS) ON MERITS IS CONCERNED THE COMMISSIONER OF INCOME TAX (AP PEALS) AFTER 9 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 DETAILED EXAMINATION OF THE DOCUMENTS ON RECORD AND APPR ECIATING THE FACTS OF THE CASE HELD THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDU CTION U/S. 54B OF THE ACT AS THE SUBSEQUENT LAND PURCHASED IS NOT IN THE NAME OF THE PERSONS TO WHOM CAPITAL GAIN AROSE. 7. IN AN ALTERNATE SUBMISSION THE ASSESSEES HAVE ALSO D ISPUTED THE ASSESSMENT YEAR IN WHICH THE CAPITAL GAIN IS CHARGEABLE TO TAX. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS EXAMINED THIS ISSUE AND HAS GIVEN HIS FINDINGS AS UNDER: 6.9.3 IN THE CASE OF APPELLANT, THE DEVELOPMENT AG REEMENT WAS EXECUTED ON 19/11/2004. ON THE DATE OF EXECUTION, A LL RIGHTS IN THE PROPERTY INCLUDING THE FOLLOWING ONES WERE GIVEN TO THE DEVELOPER. (1) RIGHT OF POSSESSION OF THE PROPERTY FOR DEVELOP MENT. THE POSSESSION WAS ACCEPTED BY THE DEVELOPER. (2) RIGHT TO TAKE ALL ACTION FOR CONVERSION OF AGRI CULTURAL LAND TO NON-AGRICULTURAL. (3) RIGHT TO OBTAIN SANCTION OF BUILDING PLAN, FLAT S, PLOT, SHOP, GODOWN, OFFICES, ROW-HOUSES, ASSOCIATION OF APARTME NT OWNERS. (4) RIGHT TO FORM FLAT OWNERS SOCIETY, APARTMENT ASS OCIATION AFTER DEVELOPMENT. (5) RIGHT TO USE INCREASED FSI BY THE DEVELOPER EXC LUSIVELY. (6) RIGHT TO SALE RESIDENTIAL / NON-RESIDENTIAL FLA TS AND TO COLLECT THE SALE PROCEEDS. IN VIEW OF TRANSFER OF SUBSTANTIVE RIGHTS TO THE DE VELOPER ON THE DATE OF EXECUTION OF THE DEVELOPMENT AGREEMENT, THE TRANSFE R TOOK PLACE ON THE DATE OF EXECUTION I.E. 19/11/2004 IN ACCORDANCE WIT H THE RATIO LAID DOWN BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF CHATURB HUJ DWARKADAS KAPADIA VS. CIT REPORTED IN (2003) 260 ITR 491 (BOM ). 6.9.4 IN VIEW OF THE DISCUSSION IN THE ABOVE PARAS, CONTENTION OF THE APPELLANT THAT CAPITAL GAIN IS CHARGEABLE IN A.Y.20 06-07 DOES NOT HAVE ANY FORCE. 10 ITA NOS. 362, 363 & 364/PN/2011, A.Y. 2005-06 WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE COMMISSIO NER OF INCOME TAX (APPEALS) ON THIS ISSUE. 8. AFTER PERUSAL OF THE ORDER OF THE COMMISSIONER OF INCOM E TAX (APPEALS) WE ARE OF THE CONSIDERED OPINION THAT THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IS JUSTIFIED AND WE DO N OT FIND ANY INFIRMITY IN THE SAME. 9. IN THE RESULT, THE IMPUGNED ORDERS ARE UPHELD AND TH E APPEALS OF THE ASSESSEES ARE DISMISSED BEING DEVOID OF ANY MERIT. ORDER PRONOUNCED ON FRIDAY, THE 18 TH DAY OF MARCH, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 18 TH MARCH, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-CENTRAL, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE