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2017 (5) TMI 1360 - AT - Income TaxAddition on account of Long Term Capital Gains (LTCG) - sale of shop - transfer u/s 2(47) - Held that:- We find that the assessee is a member of co-operative housing society holding shop in the said society which was sold by him vide agreement to sale dated 9.2.2009 for a total consideration of ₹ 30.00 lakhs and a sum of ₹ 1.00 lakh was received as an advance with the signing of the agreement dated 9.2.2009. However, due to non fulfillment of terms of the agreement to sell qua the payment of balance amount the sale eventually took place in the assessment year 2010-11. The balance consideration of ₹ 29.00 lakhs was paid in the month of April, 2009 and the possession was handed over to the purchaser on 11.5.2009 as evidenced by a letter dated 11.5.2009 and also vide sale-com-assignment deed dated 11.5.2009. Thus the sale of shop has definitely taken place in the assessment year 2010-11 and not in the assessment year 2009-10 as has been observed and concluded by the AO and confirmed by the ld.CIT(A). Further the sale is covered under the provisions of section 2(47)(v) and not under the provisions of section 2(47)(vi) of the Act as has been held by the lower authorites. In the provisions of section 2(47)(v) the sale of property means allowing of the possession of any immovable property to be taken or retained in part performance of a contract, whereas under the provisions of section 2(47(vi) it has been mentioned that any transaction whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever which has the effect of transferring, or enabling the enjoyment, of any immovable property is also sale. We also find that for a transfer of property in question the permission is required to be obtained from the CIDCO which was granted on 18.5.2009. Addition deleted - Decided in favour of assessee.
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