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2011 (1) TMI 1416 - AT - Income Taxsale of agriculture land - long-term or short term capital gain - the assessee/appellant is a Private Limited Company and derived income from rent, interest on bank deposit and income from Long Term Capital Gain (LTCG) which was shown as per the Profit and Loss Account filed along with the Return of Income (ROI) for this year. During the year the assessee company purchased a piece of agricultural land by means of registered power of attorney allegedly executed on 21-11-2002 in favour of Shri Mukesh Agarwal. According to the assessee this land in question was purchased on 20-11-1999 inclusive of registration fee, stamps and expenditure incurred on boundary wall and that the title deed was executed on 20-11-1999 in favour of the assessee. As per the assessee the land remained in its possession and ownership after it was purchased for more than three years so it would earn LTCG as per the calculation given with the return of income. HELD THAT:- Thus, in my opinion, Whenever an immovable property is sold and the whole of the consideration is paid, generally all the three documents, i.e., agreement to sell, general power of attorney as well as possession letter, are executed. all these ingredients as are required to be complied with for the applicability of section 53A of the Transfer of Property Act were satisfied in this case on 5-9-2002 and accordingly I am of the opinion that the transfer of the land has duly taken place on 5-9-2002 itself. I, therefore, agree with the ld. A.M. that the transfer of the agricultural land in this case took place on 5-9-2002 attracting Short Term Capital Gain. Once the ground relating to the applicability of section 50C has not been pressed before the Tribunal, in my opinion, the ld. A.M. was correct in law in dismissing this ground as not pressed. Once the ground has not been pressed before the Bench, as a Third Member, in my opinion, I do not have any jurisdiction to adjudicate this issue on merit. I, accordingly, agree with the ld. A.M., dismissing the ground No. l as not pressed. Per P.K. Bansal, Accountant Member. - In this case the difference arose between the Members of the Division Bench hearing this appeal. Therefore, the matter was referred to the opinion of the ld. Third Member. The ld. Third Member has agreed with the view of the ld. Accountant Member in both the questions raised, by holding that the transfer of the agricultural land in this case took place on 5-9-2002 attracting Short Term Capital Gain and so far as the second question is concerned, it was held that the same is dismissed as not pressed. Therefore, in view of the majority decision, the assessee appeal is dismissed.
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