TMI Blog2010 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Even otherwise the mutat ion of the property in the Property tax record of Municipal Authority does not give any title of ownership. Once, undisputedly, the assessee has handed over the possession of the property to the developer against the payment of share of sale consideration then the property is deemed to have been transferred as per the deeming provisions of sect ion 2(47) of the IT Act . - Provisions of section 50C are applicable. - ITA No. 541/Mum/2010, ITA No. 706/Mum/2010 - - - Dated:- 22-12-2010 - SHRI R.S.SYAL, SHRI VIJAY PAL RAO, JJ. O R D E R PER VIJAY PAL RAO,JM These two appeals by the assessees are directed against the two different orders of CIT(A) , both dated 24.11.2009 for the assessment year 2006-07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, issued a show cause not ice to the assessees to explain as to why the provisions of sect ion 50C should not be invoked in thei r case. The Explanation offered by the assessee was not accepted by the AO, however, he accepted the prayer of the assessee to refer the property for valuat ion to the DVO. The AO accordingly took the sale considerat ion as per the valuat ion made by Stamp Valuation Authority. The assessee challenged the order of the AO before the CIT(A) and raised the issue of taking the stamp duty value as sale considerat ion for transfer of the development rights of the property. In the mean time, the report of the DVO was received and accordingly, the AO passed order dated 20.11.2009 u/s 155 r.w.s.154 of the Act based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken as full value of the sale consideration, the time limit for filing the appeal against the stamp duty valuation was al ready expired. He has pointed out that even the stamp duty authority has also distinguished between the transfer of land or building and transfer of the development rights. Accordingly, only one percent stamp duty was paid on the valuation of the property. Where in the case of transferring the property 5% of the valuation, stamp duty will have to be paid. 6. The learned AR of the assessee has further contended that since the property was occupied by the tenants and the developer took the onus of dealing with the tenants, the valuation of the proper ty cannot be compared with the other property and accordingly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and computed the capital gain. 9. The main content ion of the learned AR is that the development rights does not amount to transfer of land or building and therefore the provisions of sect ion 50C are not applicable. I t is to be noted that the definition of transfer in the Income Tax Act , is not similar to that of definition under the Transfer of Property Act . Apart from various mode of transfers provided under the Transfer of Property Act , the Income Tax Act , also provides a definition of transfer as deemed transfer u/s 2(47)(v). The deemed transfer is applied when the condition prescribed u/s 53A of Transfer of Property Act are fulfilled Sect ion 53A of the Transfer of Property Act does not provide the condition for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ion of transfer is completed. Accordingly, we do not find any merit or substance in the content ion of the assessee. Merely because the name of the assessee still stand in the record of the municipal record does not change the nature of transact ion. Even otherwise the mutation of the property in the Property tax record of Municipal Authority does not give any t i t le of ownership. Once, undisputedly, the assessee has handed over the possession of the property to the developer against the payment of share of sale consideration then the property is deemed to have been transferred as per the deeming provisions of sect ion 2(47) of the IT Act . When the conditions of sect ion 53A of Transfer of Property Act is fulfilled irrespective of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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