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2018 (5) TMI 1842 - AT - Income TaxLong term capital gains - deemed transfer of 60% of the land in favour of the developer as per the scheme of Memorandum of Agreement and Joint Development Agreement executed on the application of section 2(47)(v) in the computation of taxable total income - HELD THAT:- The execution of MOU and JDA coupled with two registered GPAs in favour of the developer, we conclude and held that the transfer of the schedule property was taken place on 17.09.2012 in terms of provisions of section 2(47)(v) of the Act and to this extent, the order of the CIT(A) stands sustained. With regard to the computation of long term capital gains, by referring to the para 5 of the written submissions before the Tribunal, the assessee vehemently argued that the assessee has made specific request before the Assessing Officer to refer the valuation of the property under consideration to the Valuation Officer to determine the fair market value of the property and the same was also reiterated during the course of appellate proceedings. The assessee has raised a specific ground before the CIT(A) and reproduced in the appellate order, which reads as under: “6. The Assessing Officer ought to have referred the valuation of the properties under consideration to the Valuation Officer as provided for in Sec. 50C(2)(a) and (b) of the IT Act as claimed by the appellant Firm before the AO during the assessment proceedings, particularly considering the steep increase noticed in the guideline values fixed by the Stamp Value Authority in the short period covered.” CIT(A) has not given any findings upon the specific ground raised by the assessee. Accordingly, we direct the CIT(A) to adjudicate and decide the above issue in accordance with law after allowing sufficient opportunities of being heard to both the parties. Thus, this ground of appeal is allowed for statistical purposes. Additional ground - Reckoning transfer u/s 2(47)(v) based on JDA - plea of the assessee is that the reckoning of date of transfer should be based on the execution of MOA dated 30.01.2012 - HELD THAT:- The execution of MOA alone does not convey transfer of the schedule property to the developer within the meaning of section 2(47(v) because, the MOA is not a registered document and hence it cannot be held as a legally valid document. The execution of MOA and the JDA, which was followed by execution of registered GPAs both on dated 17.09.2012 vide document Nos. 603/2012 and 604/2012, as enunciated in the MOU, the GPA vide document No. 603/2012 dated 17.09.2012 only confers complete right to the developer over the schedule property and absolutely, the date of unregistered MOU dated 30.01.2012 cannot be taken as correct date of reckoning transfer since as on the date of 30.01.2012, no GPA was executed or registered in favour of the developer and moreover, till execution of registered GPA, both the MOU and JDA have no legal value. Therefore, the date of execution and registration of GPA shall only be reckoned as date of transfer i.e., 17.09.2012 and there is no way to take the date of transfer as on 30.01.2012 since the MOU was not registered. Thus, the additional ground raised by the assessee stands dismissed.
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