Mrs. Margaret Demello Kamath, Bengaluru V. DCIT (IT), Circle-1(2), Bengaluru

ITITA 725/BANG/2022

AI Insights

Mrs. Margaret Demello Kamath appealed against the order of the CIT(A) which confirmed the reopening of her assessment for the AY 2011-12 and the enhancement of taxable Long Term Capital Gains (LTCG) on the joint development of her property. The primary contention was regarding the valuation adopted for the property under the JDA, where the CIT(A) adopted a higher guidance value for the property than what was assessed by the AO. The Tribunal found merit in the assessee's argument that the land value should not be included in the computation of LTCG as the land was already owned by her and only the built-up area was received in lieu of the land share transferred to the developer under the JDA.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 302866 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 19-12-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 19-12-2022
• Assessment Year: misc
• Appeal Filed On: 22-08-2022
• Other Referred Cases: Dr. T.K. Dayalu vs. Unknown, Oracle Financial Services Software Ltd vs DC/T, Mukul Kumar Singh Vs CU, Jute Corpn. of India Ltd. vs. Commissioner of income-tax, Principal Commissioner of Income Tax, Bengaluru v. Karnataka State Co-operative Federation Ltd., Shankar Vittal Motor Co. Ltd. vs. Unknown, Sarojini M. Kushe vs. Unknown
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V. SRINIVASAN
• Keywords: Reopening of assessment; Principle of natural justice; Cost of acquisition; Revised return; Capital Gains
• Section: 148; 54; 132; 142(1); 143(1); 250; 48; 13

Judgement Text

IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “B’’ BENCH: BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER IT(IT)A No.725/Bang/2022 Assessment Year: 2011-12 Mrs. Margaret Demello Kamath #22/12, Fourth Floor Vittal Mallya Road Bengaluru 560 001 PAN NO : AFSPK5495G Vs. Deputy Commissioner of Income-tax (International Taxation) Circle-1(2) Bengaluru APPELLANT RESPONDENT Appellant by : Shri V. Srinivasan, A.R. Respondent by : Shri Gudimella V.P. Pavan Kumar, D.R. Date of Hearing : 20.12.2022 Date of Pronouncement : 20.12.2022 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: This appeal by the assessee is directed against order of CIT(A) dated 24.6.2022 for the AY 2011-12. The assessee has raised following grounds of appeal:- 1. The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The order of re-assessment is bad in law and void-ab-initio for want of requisite jurisdiction especially, the mandatory requirements to assume jurisdiction u/s 148 of the Act did not exist and have not been complied with and consequently, the re-assessment requires to be cancelled. IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 2 of 14 3. Without prejudice to the above, the learned CIT[A] is not justified in enhancing the taxable Long Term Capital Gains on the joint development of the appellant's property at Rs. 2,73,33,950/- as against a sum of Rs. 2,34,54,260/-assessed by the learned A.O. and Rs. 91,42,344/- offered by the appellant in the return of income filed for the year under appeal under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] is not justified in adopting the guidance value for completed apartments having granite and marble flooring of Rs.3,850 per sft., over-ruling the objections of the appellant that the adoption of the said rate was without any baSis or justification in the absence of any evidence to show the nature of construction especially when no reference has been made to determine the value to the Departmental valuer under the facts and in the circumstances of the appellant's case. 5. The learned CIT[A] further ought to have appreciated that the aforesaid guidance value of the apartment of Rs. 3,850 . 1- per sft.. adopted by him included the embedded vale for the undivided share of land that formed part and parcel of the apartment and thus, the learned CIT[A] ought to have excluded a sum of Rs. 1.64.06.250/- being the value of the undivided share of land that was embedded and allocable to the built-up area of the apartments under the facts and in the circumstances of the appellant's case. 6. Without prejudice to the above, the learned CIT[A] ought to have appreciated that the extent of built up area actually received by the appellant as per the Occupancy Certificate was only 9,345 sq feet and not 9,827 that has been adopted by the learned CIT[A] for computing the full value of consideration under the facts and in the circumstances of the appellant's case. 7 Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s. 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 8. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 3 of 14 2. At the time of hearing, the assessee has not pressed grounds relating to reopening of assessment. Accordingly, these grounds are dismissed as not pressed. 3. The other grounds for consideration are ground Nos.3 to 8 as above. 4. Facts of the case are that Margaret DeMello Kamath (hereinafter referred to as "assessee") filed her return of income on 31.03.2012 for the assessment year 2011-12 and the same was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). As per the information received from the investigation wing of the department, Ms. Margaret De Mello Kamath along with other parties had entered into Joint Development Agreement with the developer Mr. Nitin Bagamane. During the search operation u/s 132 of the Act in the case of M/s Coffee Day Global Limited, in his statement Mr. Nitin Bagamane has admitted that he paid Rs.70,00,000 as a non-refundable deposit. Rs.35,00,000 has been paid to Ms. Margaret De Mello Kamath (one of the parties in the JDA dated 25.09.2010). As per the JDA the share of owners was 75% of total built up area. The share of assessee was 50% of the owners share. 4.1 The facts of the issue involved are that the total share of the landowner is 1337.16 sq meter (14,388sq ft.) The share of the assessee is 7194 sq ft i.e. 50% of 14,388 sq ft. As per the present guidance value of the property the rate for super built up area is 9401/sq ft considering the locality, and the present guidance value, the value of the said property has been worked out to be Rs.5772/- at the time of the entering the JDA during the FY 2010-11. Accordingly, the sale consideration that had arisen to the assessee on account of JDA works out to be IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 4 of 14 74,50,23,768 (Cost of built-up area is Rs.4,15,23,768 (5772 X7194) + non-refundable deposit of (35,00,000/-). However as per the earlier return filed, the assessee had declared sale consideration of Rs.2,15,69.500/-. Therefore, the difference amount of Rs.72,34,54,260 had to suffer tax. 4.2 The proceedings were initiated by issuing a notice u/s 148 of the Act dated 31.03.2018. Subsequently, notice u/s 142(1) of the Act was issued on 09.12.19. The assessee filed submission vide letter dated 08.05.18 and stated that the return of income was filed for subject AY on 31.03.12 declaring the total income of Rs.71,10,63,370/-. It also sought reasons for reopening. Reasons for reopening recorded by the AO were duly issued to the assessee on 15.05.18. The assessee filed the objections to reasons for reopening vide submission dated 10.09.18. A speaking order dated 14.11.2019 was passed disposing of objections to the reasons recorded. 4.3 Finally the AO computed the capital gain by placing reliance on the judgement of Hon’ble Karnataka High Court in the case of Dr. T.K. Dayalu at Rs.2,34,54,260/-. Against this assessee went in appeal before CIT(A). The Ld. CIT(A) confirmed the reopening of assessment and also on merit he observed that the value of consideration received by the assessee on account of JDA is valued by taking the cost of construction. The value of consideration received is arrived at by taking the market value of the building received as per JDA by the assessee. The assessee has kept the building with herself and has not sold any part of the building portion received by her in accordance with JDA. To this 'extent, the discovery of market value has not been achieved. The market value of the property received by the assessee could IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 5 of 14 have been anywhere between Rs 10,000 to Rs.12,000 per sft during FY 2010 11 also the market value at present rates could be anywhere between Rs.30,000 to Rs.40,000 per sft in today's value. However, as the market rate has not been discovered, the department is compelled to take the guideline value of the property during FY 2010-11 the guideline value had been given by the government on 19.4.2007. This rate was applicable for FY 2010-11 also. On the other hand, the AO has adopted the guideline value of Rs.9.401 per sft in 2019 and has adopted a discounted value of Rs.5772 per sft for FY 2010.11 There is commonsensical merit in the value adopted by the AO. However, when there is a guideline value applicable for FY 201011, it would not be reasonable to adopt any higher value. As such the government guideline value given in April 2007 is held as applicable for FY 2010-11 also. As such the ld DR stated that the value of the property received by the assessee is taken at Rs.3,850 per sft only by the ld CIT(A). 4.4 In the LTCG computation, the ld. CIT(A) in his order stated that the assessee has herself declared the receipt of 10,500 sq.ft, of built up area. The area constructed is also examined w.r.t. the Occupancy Certificate (OC) dated 27 2.2013. In this, the total area is at 2,435 sq.mtr or 26,205 sq.ft. The assessee's share comes to this, the assessee has herself declared receipt of 10,500 sq.ft. of built-up area in the LTCG computation filed with ROI. As such the area received by the assessee in accordance with JDA is considered at 10,500 sq.ft. only. 4.5 The AR for the assessee has claimed before the ld CIT(A) that the guideline value of built-up area received by the assessee includes the inherent land value in the superstructure constructed. The ld CIT(A) observed that this may be true as per IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 6 of 14 a common sensical understanding. However, the value of the built-up area of the land received in accordance with JDA can only he reduced by the historical cost of acquisition and indexation thereon. The said indexed cost of acquisition has already been given by the assessee herself at Rs 7,77,656/-. As such the ld CIT(A) observed that there is no room for changing the indexed cost of acquisition claimed by the assessee in the ROI filed. 4.6 The LTCG taxable of the assessee for the year is computed as under. 10,500 sq.ft x Rs.3,850 per sft = Rs.4,04,25,000 Add: non-refundable deposit received Rs. 35,00,000 Net: Rs,4,39,25,000 Less. Indexed cost of acquisition as per (Rs. 7,77,656) LTCG Rs.4,31,47,344 Less: Exemption under sec 54 FC (Rs. 40,80,000) Net LTCG: Rs.3,90,67,344 LTCG declared in POI Rs. 91,42,344 LTCG addition Rs.2,99,25,000 4.7 The ld CIT(A) observed that the LTCG arrived as above was in excess of the LTCG computed by the AO. This amounts to enhancement of income in appeal proceedings. Considering the same, a notice dated 20.6.2022 had been issued to the assessee enclosing a copy of the draft appeal order and calling for objections to the enhancement of assessed income. In response to the same, the assessee has filed further submission vide letter dated 23.06.2022 before the ld CIT(A) as under: IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 7 of 14 1. With reference to the aforesaid Notice dated 20/0612022 along with the draft appellate order u/s 250 of the Income Tax Act proposing to enhance the assessed Income of Mrs. Margaret Demello Kamath for the Assessment Year 2011-2012, we are submitting herewith our objections to your proposal for enhancement of the assessed income as under : 1.1 the date(s) of hearing may kindly be corrected as 07/06/2022 and 17/06/2022. 1.2 At the outset, we have challenged. vide our grounds of appeal and written submissions filed in this regard, the very initiation of the re-assessment proceedings based on re-appraisal of existing material in record (and specifically in the appellant's case ; based on change of valuation parameters) which amounts to a change of opinion resulting in the re-opening proceedings being non-est in law. Reliance is placed on the ruling of the Bombay Hip Court in Oracle Financial Services Software Ltd vs DC/T in Appeal No. WP 3551 of 2019, 1.3 We have also urged in our grounds of appeal/written submissions that reopening of assessment for a mere difference in valuation is not justified as held by the Patna High Court in Mukul Kumar Singh Vs CU in Appeal Number Civil Writ Jurisdiction Case No.12528 of 2009 (Date of Judgement/Order 07/09/2020- Related Assessment Year : 2004-05). 2.0 Without prejudice to the above objections/grounds/written submissions urged by appeal, we submit our objections to your present proposal to enhance the assessed income as under : 2.1 Your Hon'ble self, vide para 9 on Page 20 of your draft appellate order, have referred to the cost of construction of Rs. 1000/-per sit on the BUA (Built up area) received by the appellant under the Joint Development agreement (JDA), as adopted by the appellant and have disputed the same by mentioning rates between Rs. 1800/2000/- per sft of Built-up area (BUA) as applicable during the Financial ,Year 20102011 which rates we. submit, are purely arbitrary, opinionated and not based on any proper valuation parameter and hence cannot be sustained especially in an appellate proceeding particularly in a case where reference to a Valuation Officer has not been done. It is also not known how the cost of construction of a building in a posh area vis-à-vis a non posh area can be different as is being inferred by your Hon'ble self 2.2 With reference to the adoption of the value of the consideration by your Honourable self based on the market value of the building (BUA) received by the appellant under the Joint Development Agreement (JDA) by adopting the Guideline value as prescribed by the State Government on 19/04/2007 at Rs. 3850/- per sft on 10500 sft of Built-up-area (BUA) which built-up area is as per the Income IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 8 of 14 Tax Return filed, we submit that in respect of the said adopted Guideline rate. applicable to buildings with marble or granite flooring, our objections on two counts, are as under: 2.2.1 On the first count of adoption of Rs. 3850/- per sft of built-up area, there has been no determination or ascertainment at any point as what type, quality and finish of building was made over and handed over to the appellant under the JDA, viz., whether, it was bare shell or whether there was a flooring at all, etc., and in the absence of such determination of particulars of building in the assessment or appellate record, adoption of a rate applicable to a building with marble or granite flooring is prima facie arbitrary and erroneous and cannot be sustained in equity or in law. Further More, the Guidance value for the sale of built-up area adopted for Stamp duty purposes for the sale of Apartments or built up area always includes the value of undivided share of land area embedded or allocable to the built-up area of Flats and such value of UM in land should have been excluded in the appellant's case as-the land already belongs to the appellant and it is only the built up area that was transferred by the Developer to the appellant pursuant to the JDA. Accordingly, an amount of Rs. 5000/- per . sft of land area (Guidance rate as applicable to land w.e.f 19/04/2007). of 3281.25 sft land area-retained by the appellant amounting to Rs. 1,64,06,250A is required to be deducted on this front even if the composite rate of Hs. 3850/- per sit on the BUA . falling to the share of the appellant were to be adopted by your Hon'ble self. Here, vide your averment in para 12, Page 21 of your draft appellate order; your Hon'ble sell have agreed with our claim/contention that the guideline value of Built-up area includes the inherent land value in the superstructure constructed. The subsequent averment that "However the value of the Built-up area (BUA) of the land received in accordance with the Joint Development agreement (JDA) can only be reduced by the historical cost of acquisition and indexation therein' is not disputed by the appellant but here the appellant wishes to submit that That is the bone of dispute is in the first part of the averment relating to "value of the Built-up area (BUA) for the land received" and in this respect, our contention is that the value of Built-up area received of Rs. 38501 adopted as per the Guideline rate is a composite rate including the value of U01 in land corresponding to the Built-up area and hence this land value which is the properly of the appellant and retained by the appellant should he reduced from the composite rate. IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 9 of 14 On the second count of adoption by your Hon'ble self, of 10500 sft of BUA (Built up Area) as handed over to the appellant, based on our Income Tax return filed for Assessment Year 2011-2012 which relates to the previous year of entering into Joint Development Agreement at the inception (before the plan sanction was obtained and before the building construction was even commenced), the said adoption of 10500 sfi of BUA as slated to be handed over to the appellant is clearly erroneous and opposed to the facts of the appellant's case particularly when your Hon'ble' self have sought for production of OC (Occupancy Certificate) and file sanction plan which documents along with the lease deed with the tenant were produced to your Hon'ble self during the appellate proceedings and which documents are on appellate record and which clearly outline and substantiate that the built-up area received by the appellant is factually 9345 sft. and not 10500 sft of Built-up area as earlier submitted at the time of filing the ITR which was an estimated and provisional figure as the ITR was filed before the building plan was obtained and before the commencement of construction of the building. We further submit, by way of objection, that on the second count of our contention that 9345 sft. should be adopted as the Built-up area, (BUA) actually received by the appellant under the OC/Sanctioned Plan/ Lease agreement- which documents were produced before your Hon'ble self during the appellate proceedings), we submit here that the production of additional documents before your Hon'ble self in the course of appellate proceedings substantiating that the appellant's share in the built-up area was 9345 sft based on cogent and tangible evidence and which is on your appellate record, tantamounts to a fresh claim of Built up area (BUA) received by the appellant under the JDA, before the appellate authority and here it is well settled in law that the assessee's fresh claim before the appellate authority is entertainable even when same is not claimed in the original return of income or even if the assessee has not filed a revised return of income to make such a claim as held by the jurisdictional Karnataka High Court in Principal Commissioner of Income Tax, Bengaluru v. Karnataka State Co- operative Federation .Ltd. reported in [20211 128 Taxrnann.com 1 (Karnataka). The Supreme Court had earlier on the same issue in Jute Corpn. of India Ltd. vs. Commissioner of income-tax [19901 reported in 53 Taxman 85 (SC)/[1991] 187 ITR 688 (SC) had similarly ruled that an assessment order can be modified by the Appellate Commissioner on an additional ground which is genuine and as per law. In this scenario, adopting the Built—up area (BUA) of 10500 sft as against 9345 sft finally determined as received by the appellant as per the OC (Occupancy Certificate), the sanctioned plan and the lease agreement entered into with the tenant which documents are all on your appellate record, is clearly erroneous. arbitrary and opposed to the principles of equity and natural justice and is also opposed to the IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 10 of 14 settled principles of law having regard to the aforesaid jurisdictional ruling of the Karnataka High Court in 128 taxman.com 1 (Kar) and the aforesaid ruling of the Supreme Court in 187 ITR 688. We conclude our objections accordingly and request your Hon'ble self to kindly place on record and to kindly pass the appellate order after dealing with our objections appropriately”. 4.7 The ld CIT(A) noted again that the assessee had declared a construction value of Rs.1,000 per sft for 10,500 sq.ft of built up area received. This was not correct as per ld CIT(A). The assessee ought to have declared the constructed value of the built-up area received by her. This had been taken by the at Rs.5,772 per sft of built-up area. In the appeal proceedings here above, this constructed value has been taken at only Rs.3,850/- per sft. To this extent, the contention of the assessee was found to be incorrect by ld CIT(A). 4.8 The assessee has also questioned the justification for the cost of construction before the ld CIT(A). In this regard, the ld CIT(A) observed that the JDA has given elaborate items to be constructed as per the JDA agreed upon. In the said annexure ; provision of generator, lifts, land scaping, security systems, wireless connectivity, air-conditioning, intercoms systems and all electrifications are included. The quality of civil construction and plumbing requirements are also given. The developer was to use ceramic tile flooring, seasoned Burma teak and teak veneer for doors and windows The bathrooms had to have ceramic tiles and glass shower cubicles. The developer has also provided mechanized elevated parking in the parking area to provide for 26 car parking. As above it is seen that the assessee has ensured a high-quality posh construction for herself. IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 11 of 14 4.9 The assessee has also objected to the non-deduction of any inherent land value in the constructed value taken of Rs.3,850 per sft before the ld CIT(A). In this regard, the ld CIT(A) noted that assessee has received her portion of built-up area after having surrendered a portion of the undivided land area to the builder. To this extent, the deduction on account of land value has already been inherently taken in the reduced built-up area received by the assessee on account of JDA. Any further deduction of land value in the constructed value would amount to double deduction being given for the same constructed value of building portion received by the assessee. On account of the above, the request of the assessee to reduce any land value from the guideline value of Rs.3,850 was rejected by the ld CIT(A). 4.10. The assessee has also objected to taking the total area received by the assessee at 10,500 s.ft. before the ld CIT(A). In this regard, he noted that this figure had been taken by the assessee herself in the return of income filed. However, with the passage of time, assessee has received only 9827 sq.ft of built-up area. The ld CIT(A) considered the built-up area actually received by the assessee at 9,827 sft only as per occupancy certificate received by the developer. The final LTCG computation made by ld CIT(A) is as under: 9.825 sq,ft x Rs.3,850 per sft = Rs.3,78,33.950 Add: non-refundable' deposit received Rs. 35.00,000 Net: Rs.4,13,33,950 Less Indexed cost of acquisition as per ROI (Rs.. 7,77,656) LT CG Rs.4,05,56,294 Less: Exemption under sec.54EC (Rs. 40,80,000) IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 12 of 14 Net LTCG: Rs.3 64.76.294 LTCG declared in ROI Rs. 91,42.344 LTCG addition Rs.2,73,33,950 Against this assessee is in appeal before us. 5. We have heard the rival submissions and perused the materials available on record. The main contention of the ld. AR is that the ld. CIT(A) computed the cost of construction by including the cost of land as well as cost of construction by considering the guideline value of the same given in April, 2007 as applicable to financial year 2010-11, which is at Rs.3,850/- p.sq.ft. According to the ld. AR that amount of Rs.3,850/- p.sq.ft including value of land as well as value of the building, which cannot be considered as the land on which the building was constructed was already owned by the assessee and the developer only constructed the building on the land owned by the assessee, as such only the guidelines value of the building to be considered and not the guideline value of the land and it has to be excluded from the computation of total consideration said to be received by the assessee in lieu of transfer of developer share on land. In our opinion, this issue has been considered by the Hon’ble Karnataka High Court in the cases of Shankar Vittal Motor Co. Ltd. in ITA No.11/2017 dated 1.12.2021 and also in the case of Sarojini M. Kushe in ITA No.475/2016 dated 1.12.2021, wherein held that for determining the guideline value of consideration for taxability of capital gains under JDA, the full consideration would be the cost of construction incurred by the builder on the assessee’s share of constructing area, because the assessee would receive the constructed area in lieu of the transfer of developer share of land. The relevant part of the judgement is as follows: IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 13 of 14 “17. It was argued by the learned counsel for the assessee that when the scheme of the Act does not contemplate the method of computation, no capital gains could be computed, placing reliance on B.C,Srinivosa Setty supra. It appears to overcome this aspect, a machinery provision has been introduced by way of Section 50D of the Act. Though the said provision has come into effect from 1.4.2013, it certainly throws some light on the mode of computation under Section 48 of the Act. In the circumstances, we are of the considered opinion that the guidance value of the land or the guidance value of the building would be appropriate mode to determine the full value of consideration in the case of a transfer where consideration for the transfer of a. capital asset is not attributable or determinable. Hence, guidance value adopted by the Tribunal cannot be faulted with. 18. Though the Tribunal in ITO, Ward-7(2), Bangalore WS. N.S.Naguraj 1(2014) 52 Taxman 2111 has held that full consideration would be the cost of construction incurred by the builder on the assessee's share of constructed area, because the assessee would receive the constructed area in view of the land share, the same not having been challenged, we are not inclined to subscribe to the same, for the reasons stated in the preceding paragraphs. Moreover, in that case, Commissioner of Income Tax [Appeals] has held that no capital gains accrues to the assessee on account of transfer of the asset. Having regard to the facts and circumstances of the case, the Tribunal having exercised its discretionary power adopted the guidance value of the land as the mode for determination of full value of consideration, the same being not perverse or arbitrary, we are not inclined to interfere with the impugned order.” 5.1 Following the same proposition, in our opinion, the AO is required to consider only the guideline value of the building of the assessee’s share excluding value of land received by the assessee from developer. Same view was taken by the Hon’ble jurisdictional High court in the case of Sarojini M. Kushe cited in ITA No.475/2016 dated 1.12.2021. 5.2 Accordingly, we remit this issue to the file of AO for limited purpose to consider only the guideline value of the building received by the assessee from developer to determine the full value of consideration in case of the present assessee on transfer by way of JDA since the consideration for transfer of capital asset is not determinable. We also direct the AO to exclude the guideline value of land and it cannot be considered to determine capital gain in this IT(IT)A No.725/Bang/2022 Mrs. Margaret Demello Kamath, Bangalore Page 14 of 14 case. Accordingly, the issue is remitted to the file of AO for re- computation of capital gain as observed herein above. 6. In the result, the appeal filed by the assessee is partly allowed. Order pronounced in the open court on 20 th Dec, 2022 Sd/- (George George K.) Judicial Member Sd/- (Chandra Poojari) Accountant Member Bangalore, Dated 20 th Dec, 2022. VG/SPS Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.