TMI Blog2012 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... II, New Delhi, raises the following grounds:- 1. That the Hon ble CIT(A)-XVII has not disposed ground No.1 of grounds of appeal placed before him, That on the basis of facts and circumstances it cannot be concluded that the appellant could have sold the factory land at a price determined by the Assessing Officer and hence enhancement in the value of consideration for calculation of long term capital gain resulting from capital assets is wrong and bad in law. 2. That the Hon ble CIT(A)-XVII has not disposed ground No.3 of grounds of appeal placed before him That the findings of the Assessing Officer for the valuation are arbitrary whereas the material available on record has been ignored hence consequential additions deserves to be deleted. 3. That the Hon ble CIT(A)-XVII has not disposed ground No.4 of grounds of appeal placed before him That on the basis of facts and circumstances of the case the addition of long term capital gain into the income of the assessee is incorrect and wrong and not permissible under the law. 4. That the Commissioner Appeals has erred holding that the provisions of section 50C(2) are applicable to the appellant company. 5. Your appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of transaction in the eyes of law .In this regard, it will be relevant to reproduce the provisions of section 50C of the Act as under: [ 50C.Special provision for full value of consideration in certain cases (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereafter in this section referred to as the stamp valuation authority ) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of the consideration received or accruing as a result of such transfer. A glance at the section 50C makes it clear that it is special provision for taking the full value of consideration in certain cases of transfer of property. It is a deeming provision which makes it mandatory to adopt the value of consideration which has been adopted or assessed by the stamp valuation authority for the purpose of computing the capital gains. The Ld. AR vide his written submission has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed provisions were not applicable in the year under consideration. On the other hand, the ld.DR while carrying us through page 40, 41 and 46 of the paper book as also the impugned order submitted that either the impugned order should be upheld or suitable directions should be issued for assessing the capital gains in the AY 2008-09.The ld. DR pointed out that there is nothing to suggest that the possession was also given at the time of entering in to agreement to sell. In his rejoinder, the ld. AR submitted that despite request made by the assessee, the AO did not refer the matter to the valuation officer .Therefore, the assessee submitted valuation report of the registered valuer. Since the transaction was complete in the year under consideration and possession was also given, capital gains are assessable in the year under consideration. However, to a query by the Bench in the context of various clauses in the agreement to sell dated 8.1.2007 as also clause 3 5 of the sale deed dated 14.8.2007, the ld. AR did not refer us to any document ,suggesting handing over of possession in the year under consideration. Instead, the ld. AR on behalf of the assessee referred to decisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of advance of Rs.4 lacs was not refunded to the buyer even when sale deed was not executed within a period of three months, has not been explained before us. Even when the aforesaid clauses were brought to the notice of the ld. AR, he did not reply nor brought to our notice any evidence as to when the possession was actually handed over to the buyer nor adduced any reasons as to non-adherence to the aforesaid terms and conditions of the agreement to sell dated 8.1.2007. In any case, sale deed was executed on 14th August, 2007 with M/s Kashish Rubber Pvt. Ltd. and the relevant clauses in respect of possession of the said property, read as under: 3. That Vendee shall hereafter be entitled to the exclusive ownership and possession of the sold property and shall be entitled to all transferable and heritable rights in it. The Vendee shall further be fully entitled to sale, mortgage, lease, fits, exchange or in any manner alienate the sold property. 5. That the vendor doth hereby assures and covenants with the vendee that the vendee shall henceforth quietly and peacefully possess, occupy and enjoy the sold property without and denial, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms of the contract." 5.3. Section 53A does not provide that under the circumstances stated therein, a good title passes to the transferee. It only provides that the transferor shall be debarred from enforcing against the transferee and the person claiming under him, any right in respect of the immovable property of which the transferee has taken possession. In addition to a valid title, section 53A recognizes an equitable interest which might accrue to the transferee in the property on the fulfilment of the conditions mentioned therein. Under the Income-tax Act, the recognition of conveyance of de facto ownership by way of handing over of possession of the property as per contract and part performance by the transferee without actual conveyance of title, was first time made by the Finance Act, 1987, by amending the definition of section 2(47)(v) of the Act. 6. In the instant case, the agreement to sell was entered in to on 8.1.2007 while the sale deed was executed on 14.8.2007 and registered. There is not even a whisper in the assessment order regarding handing over of the possession while the ld. CIT(A),without even referring to various terms and conditions in the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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