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2016 (5) TMI 160 - ITAT DELHI

2016 (5) TMI 160 - ITAT DELHI - TMI - Capital gain computation - year of assessment - Held that:- In view of contradictory agreements/documents executed by assessee himself it would be always preferred to give credence to the document that has been submitted before the land revenue authorities. In this case, before land revenue authorities sale deed is executed where assessee has confirmed that possession of the property is given at the time of execution of sale deed. The other agreement which i .....

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the no weightage can be given to a notarized agreement to sell executed between the parties on 14th may 2007 in preference to registered sale deed executed by the assessee before registrar wherein it is stated that the possession is given along with the sale deed executed on that date. In view of this, we are of the view the capital gain is required to be assessed in assessment year 2009 10, and there is no error in the order of assessing officer as well as Commissioner of income tax (A). < .....

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However, rates adopted by the assessing officer of ₹ 70 per square yard did not have any basis. Similarly, the valuation report relied upon by the assessee of some other property belonging to somebody else cannot also be accepted. Therefore, in the interest of Justice We set aside this ground of appeal to the file of the assessing officer to determine a fresh the fair market value of the property as on 01/04/1981. That assessee may be granted proper opportunity of hearing and producing ev .....

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he facts completely that the full consideration of money was received by the assessee for transfer at the time of agreement for sale and the possession of the land was given to the purchaser on 14/05/2007. Therefore, the transaction based on sale deed could not have been assessed in assessment year 2009 - 10, is in error in not considering the provisions of section 247 of the income tax act, 1961. The other grievance without prejudice to ground No. 1 was that there the assessing officer is not j .....

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th of April 2008 for ₹ 34 Lacs. Notice under section 148 of the income tax act, 1961, was issued on 27th of July 2011. In response to this notice assessee filed his return of income on 27th November 2012, declaring income of ₹ 4250/- and agricultural income of ₹ 1,55, 200/- . In response to reasons recorded assessee filed his objection by filing an affidavit dated 26th of October 2012 stating that he has not purchased any such immovable property. After that Ld. assessing office .....

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ideration, as well as the possession has been transferred before 01/04/2008. He stated that the assessee has not received consideration disclosed in the sale deed. As everything has happened other than, registration and execution of sale deed in FY 2007 - 08-sale transaction cannot be subject to tax in A. Y 2009 - 10. Ld. assessing officer recorded the salient features of the transaction, which are as under:- a. The assessee owned 6019 m² land, which was ancestral. on 2nd November 2016 asse .....

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4. Based on above facts Ld. assessing officer was of the view that as the possession of the property was given on 25th of April 2008 i.e. the date on which property was sold and sale deed is also executed on that date, transfer has taken place on 25/04/2008 and therefore capital gain of rupees 46,79,250/- is chargeable to tax. 5. Aggrieved with the order of the assessing officer appeal before Ld. Commissioner of income tax (Appeals) was filed and wherein identical arguments were raised. However .....

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port in the case of Mrs. Sarala Kumari and orders of coordinate bench in case of P.K.Shah. Before us, he contended the same arguments, which were before CIT (A). His main submission was that if the possession of any immovable property is given in part performance of contractas referred to under section 53A of transfer of property act 1982, then the transfer of that property is complete. Hence, according to him as the assessee has already received the full consideration in previous years, and pos .....

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of assessee for this year. He further argued that assessing officer has noted that on reverse of page No. 1 of the sale agreement stated by the assessee shows that sale agreement was without handing over possession. Therefore, he submitted that the story of transferring the possession to the buyers happened along with the sale agreement isincorrect. 8. We have carefully considered the rival contentions and also perused the paper book submitted by the Ld. authorized representative.According to a .....

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the date of execution of the sale deed, the possession of the property is given. Therefore, there is a contradiction between the dates of possession given by assessee to the buyer. Furthermore, the assessing officer has stated that on the reverse side of the page No. 1 of the agreement to sell it is specifically mentioned that there is no handing over of the possession to the buyer.Therefore, CIT (A) as well as the assessing officer has not believed the version of the assessee that possession wa .....

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ee has confirmed that possession of the property is given at the time of execution of sale deed. The other agreement which is agreement to sell, which is not registered with any statutory authority, but only between buyer and sellers which is notarized does not give any credence to the transaction entered by the assessee. Further, before the assessing officer and Commissioner (A) , it was never controverted by the assessee that why on the reverse of page 1 of the sale agreement fact of agreement .....

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sment year 2009 - 10, and there is no error in the order of assessing officer as well as Commissioner of income tax (A). In the result ground No. 1 of the appeal is dismissed. 9. The 2nd ground of appeal is adoption of the cost of acquisition of this property is at 01/04/1981. Ld. A R in this regard submitted that the Ld. assessing officer has taken the price of the land as on date for working out fair market value of the property for the purpose of indexation at the rate of ₹ 70 per squar .....

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