9911796707
TMI Blog2012 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and in the circumstances of the case and in law the Ld. CIT(A) ought to have upheld the order of the A.O." 3. The brief facts of the case are that it is noted by the A.O. in the assessment order that the assessee has declared an income of Rs. 1,45,520/- towards short term capital gain on sale of land. The A.O. has noted the computation of this income submitted by the assessee in the computation of income as sale price of Rs. 1,91,744/- less purchase cost Rs. 46,224/- and net short term capital gain of Rs.1,45,520/-. He further noted that a copy of development agreement dated 30.04.1996 has been filed along with the return of income. He also noted that this agreement is drawn up between the assessee and m/s. Deep Developers f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the so called development agreement with M/s Deep Developers on 30.04.1996. He further noted that in the meantime, M/s. Deep Developers have begun construction of a multi story complex namely Mangal Kirti on the said plot of land. The A.O. further noted that construction activity must have started long before the development agreement because it is seen that registration of the document of sale of flats/shops have commenced from 03.07.1996 onwards. He also noted that four documents of sale dated 4.12.1996 specifically mentioned that the construction of basement and the ground floor are completed by that date. The A.O. was of the view that as per the provisions of Section 2(47)(v) of the Income tax Act, 1961, capital gain on the sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessment year 2000-01 totaling Rs. 26,80,491.25. He also submitted that in this manner, the entire sale consideration of Rs. 34,44,800/- was considered and the assessee worked out the capital gain during these four years and, therefore, the addition made by the A.O. in the present year is not justified. He also submitted that on pages 1-13 of the paper book-II, filed by the assessee, is statement of total income for the assessment year 1998-99 along with assessment order for that year u/s 143(3) and also the assessment order passed u/s 143(3) for the assessment year 1999-2000, and assessment order passed u/s 143(3) read with Section 147 for the assessment year 1998-99 is also available in the paper book. He also furnished a copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties Act:- Section 2(47)(v) of Income tax Act, 1961: "Any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of property Act, 1882 (4 of 1882); Section 53A of TPA: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich price had been fixed and almost entire payment was also received by the assessee and hence, in our considered opinion, all the requirements of Section 2(47)(v) of Income tax Act, 1961 as well as Section 53A of Transfer of Property Act are fulfilled and therefore, it has to be accepted that the property in question had been transferred by the assessee in the present year itself and, so, the capital gain tax is payable by the assessee in the present year itself for the entire property, whereas, the assessee has declared short term capital gain in respect of the some part of property to the extent the sale deed has been executed by the assessee in the present year. In our considered opinion, this is not proper. Moreover, when the price ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of sale of land. Regarding this submission that capital gain as declared in the subsequent year, we would like to observe that correct income has to be taxed in correct hands in correct year and this fact cannot be relevant for deciding this issue of the present year that in the subsequent year, income was wrongly declared by the assessee and the same was also assessed by the A.O. Unless it is shown that capital gain taxed is not payable in the present year, the action of the A.O. cannot be faulted. In the present case, we have seen that the capital gain in taxable in the present year in respect of the entire properly and therefore, these contentions also have no merit. 11. Regarding para 5, 8 & 10 of the development agreement, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
