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2015 (11) TMI 866 - AT - Income TaxAssessability of long term capital gain in respect of four properties sold by the assessee in the hands of HUF - assessee has challenged the jurisdiction of the Assessing Officer on the ground that the provisions of Section 2(47)(v) of the Act is applicable on this transfer, Section 50C is not applicable on this transaction and year of assessability is A.Y. 2003-04 and not for A.Y. 2004-05 - Held that:- On the basis of alleged agreement to sell and deed of registration, it is proved that alleged agreement to sell are different. Even alleged agreement to sell is presumed to be genuine as per the terms and conditions, the alleged agreement to sell is not existed on the date of registry. As both the parties have not performed terms and conditions of the alleged agreement to sell in prescribed time and prescribed manner. Therefore, it is a breach of contract. Even area as well as remaining consideration are not matching in the alleged agreement to sell and deed of registry of various dates. Therefore, sale consideration considered by the ld Assessing Officer for the purposes of computation of capital gain as per Section 50C is rightly assessed. Section 50C inserted by the Finance Act, 2000 w.e.f. 01/4/2003, therefore, same is squarely applicable on the transfer made during the financial year 2003-04 relevant to A.Y. 2004-05. The assessee claimed that these properties were covered U/s 2(47)(v) of the Act does not stand to support the assessee’s case wherein number of discrepancies were noted above, as such alleged agreement to sale cannot be enforced by the court of law as time and manner prescribed in these alleged agreement to sell has much before and not followed by both the parties expired. The ld Assessing Officer has taken the consideration on the basis of deed U/s 50C, therefore, whatever construction was made on these lands were treated by him as belonged to assessee at the time of transfer as no documentary evidences were submitted by the assessee at the time of assessment that these lands has been got transferred on the basis of alleged agreement to sell in different year to different persons and they constructed building thereon. If these facts were correct, the purchaser might have filing income tax return and also paying the municipal tax and might have installed telephone/electricity connection on it but no evidences were produced before the Assessing Officer. Further in the property No. 5 i.e. Hathi Babu Ka Ahata, Kachhi Basti, Jaipur was given by the assessee’s father on rent, which was continued upto registry of this property i.e. up to 31/3/2003. The assessee also challenged the assessability of this property No. 5, Hathi Babu Ka Ahata, Kachhi Basti, jaipur on the ground of assessability year but on verification of the record it was found that remaining stamp duty was paid by the assessee on 02/4/2003. In case of Raj Rani Devi Ramna Vs. CIT (1992 (5) TMI 11 - PATNA High Court) it has been held that the parties had clearly intended that desired execution and registration of sale deed, transfer by way of the sale would become effective only on payment of entire sale consideration and in this background of fact it had to be held that there was no transfer of land covered by the three sale deeds in question during the period under consideration making the assessee liable for capital gain tax U/s 45. As per registered deed, the assessee got ₹ 50,000/- at the time of registry before Sub-Registrar, Jaipur who has signed the registry on 02/4/2003. Therefore, the assessee got consideration as per terms and agreement of the registered deed on 02/4/2003. Accordingly, the assessability of this capital gain on account of transfer of this property is liable to be assessed in A.Y. 2004-05. The ld CIT(A) was wrong in deciding the assessment of four parties under the head HUF as argued by the ld DR, these properties were sold in the capacity of individual and the assessee had claimed status as individual. No where it has been claimed that these properties were belonged to HUF, therefore, the status of assessability of these four immovable properties referred by the ld CIT(A) is to be held assessable in the capacity of individual not HUF. Further only one witness has been signed on alleged agreement to sell dated 09/8/1975 of property at Hathi Babu Ka Bagh, Jaipur and transferer written in the agreement as Avani Kumar Mukherjee, son of Shri Satkori Mukherjee whereas singed by ‘Athak Kumar Mukherjee’. There is no witness on alleged agreement to sell dated 28/8/1975 to property but no address of the property and transferer written in the agreement as Avani Kumar Mukherjee, son of Shri Satkori Mukherjee whereas singed by ‘Athak Kumar Mukherjee’. In both the alleged agreements to sell singed by Athak Kumar Mukherjee. The assessees have not produced any evidence that these transactions have been disclosed by the assessees at the time of alleged agreement to sell in respective years in their respective income tax returns. Accordingly, the assessee’s appeal is dismissed and revenue’s appeal is allowed. - Decided against assessee. Whether property is assessable under Chapter 4(iv) of the Act, which is liable to be assessed U/s 11(1a) of the Act - Held that:- The assessee claimed benefit of Section 11 but it has to be registered Trust and property is to be held wholly for the charitable and religious purpose thereafter benefit of Section 11(1a) can be availed by the assessee as such this issue was not raised before the lower authority and assessee has not produced any evidence regarding the application of capital gain for the religious or charitable purpose by obtaining registration U/s 12A of the Act from the competent authority, therefore, this ground of appeal is dismissed.- Decided against assessee.
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