Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Dr. Devendra H. Dave, Shri Rajiv D. Dave, Ms. Ansuya H. Dave Versus ITO Ward 11 (2) (2) , Mumbai

2016 (5) TMI 370 - ITAT MUMBAI

Capital gain - valid transfer or not - existence of no conveyance deed or registered agreement for sale - Held that:- In this instant case , the MOU dated 29.12.2004 entered with GCB is not registered and hence it does not convey any title or ownership rights u/s. 53A of the Transfer of Property Act,1882 in respect of the property as per the newly inserted section 17(1A) of the Registration Act,1908. Thus with regard to the transfer of the property in the instant case as per factual matrix of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion and reconstruction of the property for constructing seven storey’s of residential building on this property , and it is not that the assessee and the other coowners of the property in execution of the MOU have handed over the possession of the property in lieu of the part consideration received from GCB in the capacity of the buyer of the said property, rather the possession of the afore-stated property was handed over to GCB as licensee only for limited purpose of demolition of the existing .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and the co-owner during the impugned assessment year as transfer as contemplated u/s 2(47) of the Act read with Section 53A of the Transfer of Property Act ,1882 is not been effected as the possession in fact was never been transferred from the assessee and the co-owners to the GCB in its capacity as buyer of the fourth and fifth floor to be constructed in lieu of constructing rest of five floors for the assessee and the other co-owners as also on payment of ₹ 1.65 crores by GCB to the ass .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n the one hand and the GCB on the other hand. Complete performance of the MOU has not allegedly been done by the builder as it is also on record that only 90% of the work was claimed to have been finished by GCB and no conveyance deed or registered agreement for sale has been registered in favour of GCB by the assessee and the other coowners. The additions made by the AO and as confirmed by the CIT(A) in view of our above reasoning and discussions as set out above are not - Decided in favour of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n all the three appeals are identical, for the sake of convenience, they were heard together and we decide them by this combined order. 3. First we shall take up appeal in ITA no 1038/Mum/2013 in the case of Dr. Devendra H.Dave which appeal has been filed by the assessee against the orders dated 10.12.2012 of the learned Commissioner of Income Tax(Appeals)- 3, Mumbai for the assessment year 2008-09(hereinafter called the CIT(A)), the appellate proceedings before the CIT(A) arising from the asses .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts and in law, learned CIT(A) has erred in sustenance of assumed Long Term Capital Gains of ₹ 1,00,26,763/- made by the AO on substantive basis in the hands of the appellant without taking cognizance of various documents/ statements/ submissions of the Appellant filed before the AO and before the learned CIT(A). 4) On the facts and in law, learned CIT(A) has erred in sustenance of assumed Long Term Capital Gains of ₹ 1,00,26,763/- made by the AO on protective basis in the hands of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

come filed with the Revenue. 6. During the course of assessment proceedings u/s. 143(3) read with section 143(2) of the Act, it was observed by the AO that the assessee has disclosed loan on the l iabi l ity side in respect of Gold Coin Bui lders(Hereinaf ter cal led the GCB ) at ₹ 1,65,00,000/- in the Balance Sheet annexed to the Return of Income filed by the assessee with the Revenue. The assessee was asked to explain the same by the AO. In response thereto , the assessee has submitted t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t of law and said amount is kept as it is and it shall be repaid or otherwise as per the decision of the Hon ble Supreme Court. The assessee submitted that no interest is paid or provided with respect of the said deposit. The assessee has furnished unsigned copy of the Memorandum of Understanding(MOU) dated December, 2004. Since the assessee has not furnished signed copy of the MOU, notice dated 10.12.2010 u/s 133(6) of the Act was issued by the AO to the GCB requesting to furnish the details of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, Vile Parle(W), Mumbai-400 56. The said builder GCB submitted to the AO that it is entitled to 4th and 5th floors in the said building as per the agreement dated 29th December 2004 with the assessee and his family members. The said builder GCB submitted to the AO in reply to notice u/s 133(6) of the Act, that the possession of the said property was handed over to GCB by the assessee vide letter dated 16th October 2005, with effect from 16th October 2005 for the purpose of demolition of the bung .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on long term lease and as per the records of rights, the ownership of the property is in the name of one Shri Harivallabh Parmanand Dave & Dr. Devendra Harivallabh Dave. But it is contended by Dave family that now (after the death of Shri Harivallabh Parmanand Dave) , the property belongs to all the four signatories to the MOU dated 29-12- 2004 namely Shri Devendra H. Dave-50%, Shri Rajiv Devendra Dave-16 1/3%, Shri Alok Devendra Dave- 16 1/3% and Ms. Anusuya H. Dave- 16 1/3% respectively ev .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uction of bungalow no. 35, Udgith, M S Road No. VI , Vallabh Nagar Society, Mumbai-400 056. The said builders namely GCB have constructed and redeveloped the said bungalow after its demolition by construction of seven floors, out of which 4th & 5th floors are to be retained by the said builders. The assessee along-with the other co-owners were entitled to floors 1,2,3,6 &7 in the reconstructed building & to the future FSI , if any. In addition to the above, the assessee and the other .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

10 to the assessee and the assessee was show-caused as to why the amount of ₹ 1.65 crores received by the assessee from the GCB should not be treated as assessee s income from Capital Gain for the assessment year 2008- 09. The assessee was issued another letter dated 24.12.2010 by the AO requesting as to why the sale consideration received of ₹ 1.65 crores alongwith cost of construction of 5 floors pertaining to, should not be treated as capital gains on sale of 2/7th of the land. In .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ost. As per the MOU, the assessee has received the fixed amount of ₹ 1,65,00,000/- on various installment and the last such installment was received by the assessee on 2/4/2007 and hence the AO held that there is a transfer of capital asset as envisaged in Sec 2(14) of the Act. Since, the assessee has part performed the contract as per the provisions of Sec 53(2)(sic. to be read as Sec. 53A) of the Transfer of Property Act,1882 even though the agreement in question is not registered or exe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessee being entitle to 50% of share. The assessee has not furnished any details quantifying cost of construction of the five floors retained by the assessee. The total constructed area of the plot is 1702 sq. Mtrs. which is equal to 5584 square feet , Of this, the assessee has retained 5 floors along with the legal heirs of Mr. Harivallabh Parmanand Dave which comes to 3989 square feet. In the absence of cost of construction been quantified by the assessee and after going through the schedul .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

₹ 5,30,000/- . The assessee submitted that the cost of further amount spent after 1.4.2006 to 31.3.2010 as cost of improvement at ₹ 1,18,38,947/- towards cost relating to the 5 floor retained by the assessee, which was rejected by the AO as it cannot be said that ₹ 1,18,38,947/- constitute cost of improvement . Therefore, the cost of improvement was taken as Nil. Hence, the long term capital gain chargeable to tax works out to ₹ 2,00,53,526/- ( sale consideration being &# .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essee s case on protective basis with the direction that the same is assessable on substantive basis in the hands of the legal heirs of Shri Harivalabh Parmanand Dave, vide assessment orders dated 31.12.2010 passed by the AO u/s. 143(3) of the Act. 7. Aggrieved by the assessment orders dated 31.12.2010 passed by the AO u/s. 143(3) of the Act, the assessee preferred an appeal before the CIT(A). 8. Before the CIT(A), the assessee contended that four family members termed as co-owners of immovable .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee contended that the AO has no jurisdiction over the AOP and hence the assessment made is without jurisdiction and should be quashed. The AO in his remand report dated 11/06/2012 submitted that there was no such claim/submission made by the assessee during the assessment proceedings before the AO regarding existence of AOP and further no documentary evidence whatsoever nature was also filed to substantiate the status of the assessee as AOP and merely because certain person have inherited pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on of AOP but give different shares held by the legal heirs of the deceased. The CIT(A) relied upon section 26 of the Act and came to the conclusion that income is to be assessed in the hands of the co-owners. As nothing is on agreement about the existence of AOP and no such claim was made in the assessment proceedings by the assessee and return of income was also filed by the assessee as in an individual capacity. The assessee itself has shown a liability payable to GCB of ₹ 1.65 crores a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ect of the said property , vide orders dated 10.12.2012. With respect to the claim of the assessee on merit the assessee reiterated the submissions as were made before the authorities below. During the course of proceedings before the CIT(A) , it was claimed by the assessee that submissions made by the assessee before the AO was made as part of assessment order as Annexure-A but the AO did not make any specific comments thereon, hence the AO was asked to make her comments on the same vide letter .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r to them w.e.f. 16.10.2005 by Dave s letter dated 16.10.2005. Thus , the entire property was in the possession of GCB till the termination of the MOU and the GCB have applied to the statutory authorities for approval of the plan and other permissions and therefore it is clear that the property for all practical purposes was with M/s.GCB. With respect to the claim of the assessee that the transfer is complete only when the conveyance deed is executed as per decision in the case of Allapatti Venk .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ents of the assessee were rejected by the AO in remand report. The AO also noted that the MOU did not state that a deposit of ₹ 1.65 crores is to be made by the GCB in response to contentions of the assessee that the amount was received as deposit and not as sale consideration. The AO also submitted that the GCB has debited in their books of account an amount of ₹ 1.65 crores as a cost of project and not as a land/advance/deposit and hence it is not an earnest money. The assessee has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cost of acquisition of the property for the purposes of computation of capital gains. The AO submitted second remand report dated 11-06-2012 wherein it was noted by the AO that the builder/developer GCB has confirmed that they applied for occupation/completion certificate from the BMC and also BCC, stability certificate , site supervision completion certificate, RCC plan , and building plan with BMC for getting a occupation certificate . The details were collected such as copy of returns of inc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd the assessee i.e. Dr. D.H. Dave. Similarly, letter written to BMC by the assessee for engagement of consulting architect and structural engineer photographs of front and side elevation and backside elevation of the new building constructed by the GCB were collected The agreements for transfer/utilization of FSI(TDR) between Rehab Hosing Private Limited and assessee and all these documents contains the signature of the assessee and no signature of other co-owners were seen which also proved th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

perty Act,1882 even though the agreement is not registered but the possession of the land in question was given to the builder and sale consideration has been received by the assessee including the outer construction of the 5 storied, which amounts to transfer of property and hence as per the AO in his remand report , it was held that the income was rightly brought to tax in the assessment year 2008-09 as long term capital gains. It was also submitted in the remand report by the AO that the asse .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s and till today the whole property is under the control of the assessee and the other co-owners only and said M/s.GCB is not permitted and restrained to enter the premises and/or to occupy or acquire impugned fourth and fifth floors and the corresponding parking space in the said building. So,the assessee submitted that there is no transfer of capital asset by the assessee and the other co-owners and no question of computing capital gain. Thus, taxing the impugned capital gain is redundant and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cted by GCB. The whole property is in the control of the co-owners and said GCB is not permitted and restrained by the Hon'ble Supreme Court to enter the premises and/or to occupy or acquire impugned floors and the corresponding parking space in the said building. No exclusive possession of the property was given to GCB, no possession is allowed to GCB either of the plot or structure thereon. The said MOU has been terminated and matter is sub-judice. No occupation certificate is issued and t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r up illegal action of passing impugned nonspeaking and without reason assessment order. The CIT(A) considered submissions of the assessee and rejected the contentions of the assessee.The CIT(A) held that remand report called from the AO is for the benefit of the assessee , hence the objection of the assessee with respect to reference to AO for remand report was rejected. It is seen that the assessee is having land bearing CTS No. 204 admeasuring 852.50 sq. meter with bungalow named Udgith on pl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the assessee s share was 50% and other three persons had 16 1/3rd each. The co-owners of the bungalow No. 35 were taken on record by the society as inherited property on 12.09.1989. The said plot was acquired in the name of the assessee and his father vide conveyance deed dated 21.09.1971. The said plot No. 35 was assigned by Shri D.H. Dave and his family vide MOU dated 29.12.2004 to the GCB for construction of seven storied building on which the GCB is entitled to retain fourth and fifth floors .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion and construction of seven storied building. The assessee was entitled for debris of demolition of bungalow. The entire property was in the possession of GCB till the termination of MOU. It is noticed that the GCB have applied to the statutory authorities for approval of plan and other premises and compensation of ₹ 1.65 crores was received by the assesssee from the GCB in lieu of handing over the possession of the property from the owner as per provisions of section 53A of the Transfe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y with regard to two floors allotted to the builder i.e. GCB. The GCB also applied for occupation certificate from BMC and also filed documents for completion certificate as mentioned in the AO remand report from BMC such as stability certificate, site supervision completion certificate, RCC plan and building plan with the BMC for getting an occupation certificate. The TDR agreement dated 31.01.2005 with M/s Rehab Housing Private Limited for acquiring 850 meters purchased by the GCB in the name .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

transfer of property as capital gains , keeping in view the provisions of section 2(47) of the Act and section 53A of the Transfer of Property Act,1882. Thus , the assessment order dated 31.12.2010 of the Assessing Officer passed u/s 143(3) of the Act was upheld by the CIT(A) vide orders dated 10.12.2012. The CIT(A) directed the AO to intimate the concerned AO having jurisdiction over the other co-owners of the property for considering long term capital gain on substantive basis in their cases. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

35, Vallabh Nagar Co-op Housing Society Ltd., North South Road No. 3, J.V.P.D Scheme, Vile Parle(W), Mumbai-400 56. It was contended that the income is to be assessed in the hand of AOP/BOI and not individuals. The said MOU is placed in the paper book filed by the assessee with the Tribunal at page 94 to 102. The copies of the original purchase deed dated 21.09.1971 in favour of the assessee and Mr.Harivallabh P. Dave for purchase of land being Plot No.35, Vallabh Nagar Co-op Housing Society Lt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ne by the assessee and the other co-owners as per terms of the MOU dated 29.12.2004. The documents in connection with the transfer of share certificate showing registration of change of ownership of the property w.e.f. 12.09.1989 in favour of incoming new members Sh Rajiv D. Dave, Sh. Alok D. Dave and Ms. Ansuya H Dave on inheritance as per oral will of Mr.Harivallabh P. Dave, pursuant to the death of Mr.Harivallabh P. Dave on 11.11.1985 is placed in paper book page 019-21. The assessee continue .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t year 2005-06, ₹ 25 lacs was received in assessment year 2006-07, ₹ 70 lacs was received in assessment year 2007-08 and the balance final payment of ₹ 65 lacs were received in the assessment year 2008-09. The Ld. counsel for the assessee submitted that the possession of the said property was always with the assessee along with other co-owners and only for the limited purposes of demolition of the bungalow and reconstruction of the building , the property was handed over to the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s of time in completing the work of construction of the building, the correspondence with the GCB informing discrepancies and deficiencies in performance in terms of the MOU is placed in paper book pages 69-75. Various notices in writing were issued by the assessee to the GCB requesting to comply with the terms of the MOU but the GCB did not comply and ultimately the MOU was terminated as per clause 11 of the MOU vide letter dated 15.10.2007 and the possession of the property given to GCB for li .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

189 of 2008 pending with Hon ble Bombay High Court is placed in the paper book page 22-54. The assessee submitted that the two floors being 4th and 5th floor constructed by the GCB was to be given to the GCB provided it strictly complied with all the terms and condition of the MOU and no encumbrance of 4th and 5th floor whatsoever was created in favour of the GCB by the assessee and the co-owners. The assessee submitted that the possession of the entire property is still with the assessee and t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appointed commissioner has reported that the Dave family had the keys of the flats and opened the flats in the presence of the court appointed commissioner and the representative of GCB . The photographs during the court appointed commissioner visit are placed at page 26-30. It is stated by the assessee that they have to incur huge amount to complete the construction after termination of the MOU and re-possessing of the property from GCB . The assessee also placed on record the municipal taxes .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and fifth floors and the corresponding parking space shall not be alienated or dealt with in any manner till the disposal of the suit. We request the learned judge to dispose of the suit as expeditiously as possible in any event with a within one year. In view of this order, nothing survives in this appeal of the Division Bench and the same is disposed of. The special leave petition is, accordingly disposed of. The copy of Hon ble Supreme Court above orders are placed in paper book page 76-78. T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ment year 2006-07 keeping in view the provisions of Section 2(47) of the Act read with Section 53A of the Transfer of Property Act, 1882 and not for the instant assessment year under appeal i.e. 2008-09. He also drew our attention to various inquiries made by the Assessing Officer u/s. 133(6) of the Act with the tenants of the flats in the said building which is placed in page No. 67 to 100 of the Paper Book-II to verify the possession of the afore-stated property. The assessee also relied upon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as cost of project and the assessee has also handed over the possession to the said GCB. Transfer is complete as far as section 2(47) of the Act read with Section 53A of the Transfer of Property Act,1882 is concerned, income is chargeable to tax as capital gain as the possession has been handed over to the builder in part performance of the contract and the said builder has already constructed the building and has made payment of ₹ 1.65 crores to the assessee as per terms of the MOU, which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the Transfer of Property Act,1882. It was submitted that there is an amendment in section 17 of the Registration Act , 1908 in the year 2001 by amendment Act of 2001 which stood enforced w.e.f. 24.9.2001, by which only those contracts which are registered will only be considered as covered u/s. 53A of the Transfer of Property Act,1882. Since, the MOU dated 29.12.2004 is not registered, the transfer as contemplated u/s. 53A of the Transfer of Property Act,1882 is not complete He relied upon the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g Society Ltd., North South Road No. 3, J.V.P.D Scheme, Vile Parle(W), Mumbai-400 56. The said plot was purchased by the assessee and Sh. Harivallabh Parmanand Dave (father of the assessee ) in the year 1971 and the bungalow was stated to be constructed in the year 1972. The copies of the original purchase deed dated 21.09.1971 in favour of the assessee and Mr.Harivallabh P. Dave for purchase of land being Plot No.35, Vallabh Nagar Co-op Housing Society Ltd., North South Road No. 3, J.V.P.D Sche .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y and the shares being definite and ascertainable in respect of each person , are duly entered into the records of the society as per the facts emerging from the records . Section 26 of the Act provides that in case the property is owned by two or more co-owners and their respective shares are definite and ascertainable , then income from house property has to be assessed in the hands of the co-owners and person shall not be assessed as an Association of Persons (AOP). Thus, keeping in view of t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch is co-owned by the four co-owners namely the assessee, Ms Ansuya H Dave, Rajiv D Dave and Sh. Alok D Dave shall be brought to tax in the hands of the co-owners respectively, and not as income of the AOP/BOI as contended by the assessee as there is no association of person or body of individual formed on death of Harivallabh Parmanand Dave rather the property is coowned by the family members of the assessee and hence this contention of the assessee is rejected. We have also observed that the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ers. In consideration of the GCB constructing seven storeys of residential building on this property and payment of ₹ 1.65 crores to be made by the GCB to the assessee and the co-owners, the GCB shall be entitled for two floors namely 4th and 5th floor along with corresponding parking space in the stilt as earmarked in the plan attached. We have carefully perused the terms of the afore-stated MOU dated 29.12.2004. The said MOU is an unregistered MOU. The documents in connection with the tr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee and the other co-owners are stated to have received ₹ 1.65 crores from GCB spread over four years starting from the financial year 2004-05. First payment being ₹ 5 lacs was stated to be received in the assessment year 2005-06, ₹ 25 lacs was stated to be received in assessment year 2006-07, ₹ 70 lacs was stated to be received in assessment year 2007-08 and the balance final payment of ₹ 65 lacs were stated to be received in the assessment year 2008-09. It is c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l occupation or enjoyment and right of transferability of units comprised in two floors (viz. fourth and fifth floors) and the corresponding parking space in the stilt as earmarked in the attached plan will belong to the GCB strictly in terms of the MOU. The GCB was under an obligation to re-construct the property by constructing seven storeys of residential building and secure building occupation/completion certificate and it is clearly stated in clause 10 that the GCB has to fulfill his entire .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ulated in clause 11 of the said MOU dated 29.12.2004 that material breach of agreement on the part of the GCB without there being any reasonable cause will permit the assessee and other co-owners to terminate the agreement if the breach is not remedied within three months. It is also stipulated in the MOU clause 12 that once the building is completed and full payment has been made by the GCB, the GCB will take possession of flats on fourth and fifth floors including corresponding right to parkin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

terminated by the assessee and the coowners on 15.10.2007 and the matter is sub-judice with the Hon ble Bombay High Court vide suit no 189 of 2008 filed by the GCB whereby the assessee and other co-owners are defendents. It was contended before us that various defects and discrepancies in the performance of the builder with respect to terms and conditions as stipulated in the MOU were communicated to the GCB before terminating the MOU on 15-10-2007, whereby the construction of the project suffer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f seven storey s on the said land was re-possessed by the assessee from said GCB. The said deficiencies by the builder in the compliances as per terms of the MOU were placed at page No. 69 to 75 of the paper book. The construction of seven stories were not complete when the MOU was terminated on 15.10.2007 and the property being re-possessed by the assessee .The afore-stated MOU dated 29.12.2004 has already been cancelled and terminated vide letter dated 15.10.2007 (page 75 of paper book) and th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ssion of the entire property is still with the assessee although undertaking has been given before the Hon ble Supreme Court not to alienate the property. The Hon ble Bombay High Court had appointed Commissioner to visit the afore-stated property(paper book page 25) . The Commissioner report dated 31/01/2008 (paper book page 23-24) whereby the court appointed commissioner has reported that the Dave family had the keys of the flats and opened the flats in the presence of the court appointed commi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ork was complete when the assessee along with other co-owners terminated the MOU and the delays were due to the assessee non-co-operation . It is stated by the assessee that they have to incur huge amount to complete the construction after termination of the MOU with GCB. It was also contended that occupation certificate was also obtained by the assessee and the co-owners directly from BMC The assessee also placed on record the municipal taxes receipt of February 2014 and electricity bills which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be alienated or dealt with in any manner till the disposal of the suit. We request the learned judge to dispose of the suit as expeditiously as possible in any event with a within one year. In view of this order, nothing survives in this appeal of the Division Bench and the same is disposed of. The special leave petition is, accordingly disposed of. The copy of Hon ble Supreme Court above orders are placed in paper book page 76-78. We have also observed that the Assessing Officer has made enquir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ontract under section 53A of the Transfer of the Property Act, 1882, it has to be agreement in writing which is to be an registered agreement and otherwise the same shall have no effect for the purposes of the said section 53A of the Transfer of Property Act,1882 . The said section 17(1A) of the Registration Act , 1908 as added and introduced to the statute w.e.f. 24.9.2001 by the Registration and Other Related laws (Amendment) Act, 2001 is reproduced hereunder: [(1A) The documents containing co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gistered agreement as contemplated u/s 17 of the Act of 1908, the same shall not affect any immovable property comprised there-in or confer any power to adopt or be received in evidence of any transaction affecting such property or conferring such power. The said section 49 of the Registration Act,1908 is reproduced hereunder : 49. Effect of non-registration of documents required to be registered.-No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] Section 53A of the Transfer of the Property Act,1882 provides as under: Section 53A in The Transfer of Property Act, 1882 [53A. Part performance.-Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mpleted in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(v) and (vi), "immovable property" shall have the same meaning as in clause (d) of section 269UA.] [Explanation 2.-For the removal of doubts, it is hereby clarified that "transfer" includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether ente .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

section 17(1A) of the Registration Act,1908. Thus with regard to the transfer of the property in the instant case as per factual matrix of the case as set out above, there is no valid transfer u/s. 53A of the Transfer of Property Act,1882 had taken place as contemplated u/s. 2(47) of the Act as the MOU dated 29.12.2004 is an unregistered document , no title has been transferred in part performance of the contract as it had not affected the immovable property comprised there-in, hence capital ga .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rty in lieu of the part consideration received from GCB in the capacity of the buyer of the said property, rather the possession of the afore-stated property was handed over to GCB as licensee only for limited purpose of demolition of the existing bungalow and for reconstruction of the said property by constructing seven storey s residential building on the said property. The assessee and the co-owners continue to enjoy the possession as and in the capacity as the owners of the afore-stated prop .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and the co-owners to the GCB in its capacity as buyer of the fourth and fifth floor to be constructed in lieu of constructing rest of five floors for the assessee and the other co-owners as also on payment of ₹ 1.65 crores by GCB to the assessee and other co-owners as per facts and circumstances of the case as set out above. The agreement has already been terminated by the assessee and the co-owners on15.10.2007 for deficiency and discrepancies in performance by GCB in terms of the MOU da .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

registered agreement for sale has been registered in favour of GCB by the assessee and the other coowners. The additions made by the AO and as confirmed by the CIT(A) in view of our above reasoning and discussions as set out above are not sustainable , the same is ordered to be deleted. We order accordingly. 14. In the result, appeal in ITA no 1038/Mum/2013 is allowed. ITA No. 155 & 156/Mum/2015 15. Our decision in ITA No. 1038/Mum/2013 on merits shall apply in these two appeals namely ITA .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version