9911796707
TMI Blog2014 (2) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee filed her return of income on 31.07.2007 declaring an income of Rs.1,81,520/-, which was subsequently assessed on 26.12.2008 wherein the total income returned by the assessee was accepted. During the year under consideration the assessee transferred her 2/7th share, which she was having as development right in a property bearing Survey No.8, Hissa No.2 and now bearing CTS No.575 situated at village Poisar, Taluka Borivali. The said property was an agricultural land having an aggregate area of 4428.60 sq.mtrs. of which the assessee's share was 1265.31 sq.mtrs. (being 2/7th share). The said rights were acquired by the assessee from Smt.Leena Bagwe vide agreement dated 19.09.1992 for a consideration of Rs.8,95,000/- for 1/7th share a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself was defective. Therefore, the value of the property determined at Rs.4,99,50,000/- by the stamp duty authority was on higher side. The AO did not find merit in the submissions of the assessee and observed that the Valuation Officer vide order dated 07.12.2010 u/s 50C of the Act in the case of Shri Chandulal P.Patel, who is the co-owner of the said property (on the basis of which the assessee's case was reopened) determined the fair market value at Rs.1,30,91,000/-. He accordingly worked out the share of the sale consideration in assessee's hand at Rs.37,40,286/- as long term capital gain and added the same to the income of the assessee. 4. Being aggrieved, the assessee carried the matter to the learned CIT(A) and reiterated the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the two agreements reveals that these have been executed on non-judicial stamp paper of Rs.10/- each and further, these have not been registered with sub-registrar. Thus, if the title or the ownership of these properties were to transfer to the Appellant, it was imperative that proper stamp duty should have been paid at the time of the impugned transfer which has not happened. In view of the same, it prima-facie appears that appellant is not true and lawful owner of the said property and what was transferred was only certain rights in the property. 6.2.11. The AR has then referred to the deed of conveyance Dt.24.04.2006 entered into between original owners i.e. legal heirs of Smt. Lilawati Krishnarao Raut etc. and Shri Ramdas Sangle an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Court, even the physical possession of the property is not with the appellant. 6.2.13. Coming to the next objection of the Assessing Officer -that the claim of the appellant to come out of prolong litigation, the property was transferred to a firm, M/s.Jajodia Patel and Properties is not acceptable as the son of the appellant is a partner in the said firm -is irrelevant as the Assessing Officer has not doubted the genuineness of the transfer. Accordingly there is no infirmity in the claim of the appellant on this ground. 6.2.14. Thus, as neither the legal title nor the physical possession of the impugned property is with the appellant and therefore there is no question of invoking the provisions Section 50C of the Act. 6.2.15. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue having similar fact have already been decided by this Bench of the ITAT Mumbai in the case of one of the coowners, Shri Chandulal P.Patel, wherein relevant finding has been given in para 8 to 11, vide order dated 23rd August, 2013 in ITA No.2892/Mum/2012, which read as under:- . "8. We have carefully considered the orders of the authorities below and submissions of learned representative of the parties. We have also gone through relevant pages of the paper books, which comprises of 270 pages and contents of relevant agreements entered into by the assessee dated 6th June, 1992 and 10th April, 1993, development agreement entered into between assessee and others with M/s Jajodia and Patel Properties as well as copies of the trial balance, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to litigation on the property and also pointed out other encumbrances, reference of which, we have already mentioned hereinabove. Not only this, the Ld. CIT(A) has also referred the agreement dated 6th June, 1992 and 10th April, 1993 to reflect the intention of the assessee for acquiring the said assets that the assessee acquired only development rights in the property for the purpose of carrying out construction activity on the plot. The Ld. DR has not disputed the said facts as pointed out by the Ld. CIT(A) in the impugned order. It is also a fact that the assessee has not claimed any benefit of indexation in the cost of acquisition. The above facts establishes that the assessee has treated the said property as stock in trade. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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