TMI Blog2015 (10) TMI 2115X X X X Extracts X X X X X X X X Extracts X X X X ..... e has paid full consideration of ₹ 2.75 crores to the respective parties. Under the aforementioned circumstances, we do not find any infirmity in the order of the CIT(A) holding that the capital asset transferred by the assesses is not agricultural land but “assignment of right to obtain the conveyance” of the agricultural land. The various decisions relied upon by Ld.CIT(A) also supports the case of the Revenue. Under these circumstances, we find no infirmity in the order of the CIT(A). We accordingly uphold the same. - Decided against assessee. - ITA No.24/PN/2014, ITA No.25/PN/2014, ITA No.26/PN/2014, ITA No.27/PN/2014, ITA No.28/PN/2014 - - - Dated:- 11-9-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : None For The Department : Shri.B.C. Malakar ORDER PER R.K. PANDA, AM : The above 5 appeals filed by the respective assesses are directed against the common order dated 06-09-2013 of the CIT(A)-IT/TP, Pune relating to A.Y. 2005-06. For the sake of convenience, all these appeals were heard together and are being disposed of by this common order. 2. All these appeals were fixed for hearing for the first time on 02-12-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, capital gain taxability of land will arise only in a year in which the Collector gives permission to transfer the land. Further, as a 'deemed purchaser', the price payable by a tenant to the landlord is determined by the Tribunal under the BTAL Act. In the assessees' case, purchase of land from land owners is still pending before the Tribunal as per Sections 32G and 32M of the Tenancy Act. Further, since land is situated in urban area, the tenant cannot sell it u/s 43C. The assessee has filed suit in the Tribunal against this restriction on transfer. The suit is pending in the Tribunal. In view of these facts, land is not yet transferred in the assessee s name and there is no consequent transfer to C M Farming Ltd according to the provisions of Section 2(47) and, therefore, capital gain does not arise in the facts of the case. 6. However, the AO did not accept the contention of the assessee. He observed that as per the agreement dated 13.07.2004 with C M farming Ltd, Mumbai, assessees received total ₹ 2.75 cr. At the time of signing of an agreement, advance of total ₹ 13 lakhs was given to the assessees. Subsequently, before 31.03.2005, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta High Court In the case of CIT vs. All India Tea and Trading Co Limited (1979) 117 ITR 525 (Cal) as physical, actual, constructive or symbolic possession of property of any kind. The Appellants are in physical possession of the land. Therefore, land is held by them and being 'deemed purchaser' under the BTAL Act because they hold the 'capital asset', they are legally capable of transferring land and rights associated with the land. 2.10 The Appellants have stated there is no transfer in terms of provisions of Section 2(47) of the Income tax Act because they are only 'deemed purchaser' under the Bombay Tenancy and Agricultural Land Act. It is stated that the dispute regarding the purchase with the landlord is pending in the Court. Further, the District Collector is yet to give permission for transferring the land according to the provisions of the Bombay Tenancy and Agricultural Lands Act. 2.11 I have carefully considered the Appellants' contention. In my view, this is not the case of transfer of the agricultural land. In this case, the 'capital asset', which has been transferred is the 'right to obtain conveyance of immovable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case CIT(A) has erred in law by treating Transfer as per Section 2(47) of the Income Tax Act. 2. On the facts and circumstances of the case CIT(A) has erred in law by treating Transfer whereas as per Bombay Tenancy and Agriculture Land Act 1948 in Section 43 there is condition and year of taxability is given. 3. On the facts and circumstances of the case CIT(A) has erred in law by treating Transfer whereas as per Bombay Tenancy and Agriculture Land Act 1948 as per Section 43C a tenant cannot transfer a land which is stated in Municipal Corporation of Ahmednagar. 4. On the facts and circumstances of the case CIT(A) has erred by not verifying all modes of transfer mentioned in the agreement, none of mode is complete during the said assessment year. 5. On the facts and circumstances of the case agreement is made by appellant as Deemed Purchaser hence many legal formalities as per Bombay Tenancy and Agriculture Land 1948 have to be done, which was pending during the said assessment year. This fact not considered by CIT(A). 6. On the facts and circumstances of the case CIT(A) has erred by treating transfer eventhough possession of land is still with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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