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TMI Blog2015 (7) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us. The grounds raised by the Assessee, which have been later modified, reads as under:- 1. The appellant submits the Id CIT(A) has erred in confirming the taxing of the capital gain of Rs. 19,74,272/- u/s 50C of I.T Act by the AO as against the claim of Rs. 1,45,000/- as capital loss by the appellant. 1.1The appellant further submits that the Ld CIT(A) has erred in confirming the order of the AO rejecting the claim of the appellant u/s 50 C (2) of I.T. Act to refer the valuation of the capital asset to Valuation officer and adopt the value so assessed by such authority. 1.2 The appellant further submits that the Id CIT(A) has erred in rejecting the claim of the appellant that as the possession of the said property was already handed over to the purchaser on 17-05-91 against the earnest money of Rs. 50,000/- received on 17-05-91 as per copy of Deed of Agreement to sale dated 17-05-91, and as mentioned in the sale deed dated 14-02-2008, the transfer of the said property had taken place in A.Y. 1992- 1993 as per section 45(1) r.w.s 2(47)(i) and (v) of I.T. Act and hence the computation of the capital gain at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accordingly considering the value of property as per the provisions of Section 50C and worked out the long term capital gain at Rs. 19,74,272/- as against the capital loss worked out by Assessee. Aggrieved by the order of A.O, Assessee carried the matter before ld. CIT(A) who upheld the order of A.O by holding as under:- 3.2 I have considered the submission made by the appellant and observation of the AO. The appellant has admitted that the sale deed is dated 14/02/2008. Prior to that the appellant has stated that earnest money of Rs. 50,000 was received and the property was handed over to the purchaser in 1991. No prudent man would hand over such huge property by taking Rs. 50,000/- only when deed value is Rs. 3.5 lac. The appellant has brought no material on record to show as to why the sale deed has been registered on 14/02/2008 after 18 years. Therefore, as per the government account the transfer has taken place only when the sale deed has been made and major amount of money Rs. 3 lakh out of Rs. 3.5 lakh has been paid on the execution of the sale deed. Therefore, not only the major amount of money has passed at this time, but the sale deed has also been executed only at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement Assessee was paid only 50,000/- on 17.05.1993. It is also a fact that the possession of the property was handed over by the Assessee on the receipt of earnest money of Rs. 50,000/-. The agreement for sale and Banakat which has been entered into by the Assessee have been placed on record and have not been disputed by the Department. Before us, Revenue has not brought any material on record to demonstrate that the possession of the property was handed over by the Assessee in the year under consideration and not in the year 1990, being the year in which the Assessee had entered into a Banakat. We further find that Section 50C, being the special provision for the purpose of calculation of capital gains in certain cases, was inserted by Finance Act, 2002 with effect from 01.04.2003 and was therefore not applicable to the year when the Assessee had entered into the Banakat. We further find that Hon'ble Bombay High Court in the case of Chaturbhuj Dwarakadas Kapadja vs. CIT (2003) 260 ITR 491 (Bom) has held that the capital gains would be taxable in the year in which the transactions are entered into even if the transfer of immovable property is not effective or complete unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose which is clear from the fact that the sale proceeds of Rs. 3 lakh from the execution of property mentioned in ground number one has been credited in this account. The property was held in the individual capacity without any doubt and if is not disputed by the appellant. Therefore this account definitely belongs to the assessee in the individual capacity and not in the capacity of HUF. As regards, the claim of the assessee that the deposit of Rs. 10,49,722/- and Rs. 2,02,31 I/- are explained, as stated above it is seen that these are additional evidences not given to the AO. The AO is therefore directed to verify these documents, and if these documents are found to be genuine, and the entries are correct, the AO is directed to allow the amount to the extent it is found to be correct. This ground of appeal is therefore partly allowed subject to the above verification. 4.1 This is regarding addition of Rs. 88050/-of interest income. In the assessment order the AO has stated that the interest income of Rs. 88050/-in the ICICI bank is added back to the assessee's undisclosed income because this bank account was not disclosed by the assessee in his individual capacity. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep" by both the authorities. We therefore restore the issue back to the file of A.O to re-work the amount of addition after considering the explanation of the Assessee with respect to "autosweep" and "reverse-sweep" and in accordance with law. The Assessee is also directed to co-operate by furnishing the necessary evidence as called for by A.O. Needless to state that A.O shall grant adequate opportunity of hearing to the Assessee. In the result, the ground of Assessee is partly allowed for statistical purposes. Ground no. 4 is with respect to addition on account of agricultural income. 13. A.O noticed that Assessee has claim to have earned agricultural income of Rs. 8,000/-. The Assessee was asked to substantiate its claim of having earned agricultural income in response to which Assessee furnished copy of 7/12 and Form 8A. The submission of the Assessee was not found acceptable to the A.O for the reason that Assessee had not furnished any other details apart from the copy of 7/12 and 8A and he therefore included the agricultural income of Rs. 8,000/- as the total income of the Assessee. Aggrieved by the order of A.O, Assessee carried the matter before ld. CIT(A) who upheld the a ..... 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