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2014 (12) TMI 686 - ALLAHABAD HIGH COURTCapital gain accrue or arise or not in the present AY or not - Transfer took place on 30.04.2005 or not – Trasnfer u/s 2(47) - Held that:- There was the transfer of land to the builder in lieu of cost of construction as per specification of the agreement for Plot No. 14/138 - there was transfer of the capital assets - This transfer had taken place at the time of execution of the development agreement on 24.06.1999, whereby the builder had been vested with extensive powers by execution of power of attorney executed on same day i.e. on 24.06.1999 to deal with property for the purpose of development as stipulated by principal development agreement. So far as Plot No. 14/143 is concerned, it did not provide any transfer of land, but this plot was in the name of the brother of the assessee. The builder had launched its scheme of booking of flats by advertising in various well know newspaper on 20.04.2002 from 1.4.2002 - This evidence has also remained uncontroverted by the Revenue and explanation of assessee being plausible, had the possession not been given prior to a reasonable period, then the date of launching of the scheme, the builder could not have been in a position to launch the scheme on 21.4.2002 and demolition of old building and acquiring of the land for construction being not a childish job, was to take sufficient time and therefore, the assessee's plea is that the possession of the land was handed over latest by 23.11.2001 is liable to be accepted - the land was transferred in all manner except title to the builder by the assessee. The Tribunal rightly observed that as per terms and conditions of the agreement date 24.06.1999 the transfer was effective from that very day and not in the year of 2005 as wrongly observed by the AO - the capital gain is applicable in the year when the possession was handed over by the assessee - the assessee's all other rights, except title, stood transferred and the capital gain was to be computed on the basis of transfer and in the year of the transfer - the partial possession was given in the year 1999 - The title was transferred on 30.04.2005, so no capital gain could have been accrued on 30.04.2005 for the AY 2006-07, as wrongly claimed by the revenue - the transfer of the land under reference did not take place on 30.04.2005 – thus, the order of the Tribunal is upheld – Decided against revenue.
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