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2014 (11) TMI 143 - ITAT AHMEDABADTaxation of capital gains - Amount of LTCG revised - Correct year of assessment of the capital gain - Whether the CIT(A) was justified in holding that the LTCG is pertaining to AY 2009-10 without considering the facts that the sale-deed was executed on 30/03/2008 and the possession was handed over on the same date and also the assessee had received this almost entire sale consideration – Held that:- In Smt.Sandhyaben A.Purohi vs. ITO [2014 (11) TMI 88 - ITAT AHMEDABAD] it has been held that in a situation where consideration has been paid and the possession has been handed over, then in view of the provisions of s. 2(47)(v) transfer took place and that date of transfer is thus required to be taken for the purpose of computation of capital gain - an immovable property can be legally and lawfully transferred or conveyed only by a registered deed of conveyance – when the document is executed, the property passes and merely because there is no registration certificate, the State coffers should not suffer - If the view propounded that only on registration, act of transfer will be complete, then in that case, if the document is not registered, though the assessee will be enjoying the property, he will say that he is not liable to pay the tax - But that is not the intention of the Legislature - the word 'transfer' as indicated in the Income-tax Act is required to be considered and not 'sale' as indicated in the Transfer of Property Act - transfer of immovable property of the value exceeding ₹ 100 can be said to have been effected on the date of execution of the document. The transaction would relate to the date when the sale-deed was executed, sale consideration was paid and the possession was handed over but not on the date when the document was presented before the Registrar for registration of the sale-deed - the decision in Suraj Lamp and Industries Pvt.Ltd. vs. State of Haryana and Another [2011 (10) TMI 8 - SUPREME COURT OF INDIA] cannot be followed as the decision was delivered on 11/10/2011, but the sale agreement in the present case was executed on 31/03/2008 – the particular decision should be made applicable prospectively to avoid hardship had been made clear while delivering the judgment itself - SA/GPA/WILL transactions are not “transfers” or “sales” and that such transactions cannot be treated as completed transfers or conveyances - They can continue to be treated as existing agreement of sale - Nothing prevents affected parties from getting registered deeds of conveyance to complete their title - if the documents relating to “SA/GPA/WILL transactions” has been accepted acted upon by the DDA or other developmental authorities or by the Municipal or Revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision - the agreement to sell dated 31/03/2008 had already been acted upon the parties by delivery possession and registering sale-deed – Decided in favour of assessee.
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