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TMI Blog2012 (12) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... would be equally applicable to the other. We thus proceed to hear both the appeals and pass a consolidated order of the sake of convenience. 2. ITA No. 150/Ahd/2012 is taken as the lead case since admittedly the facts in both the appeals are common. 2.1. The facts of the case as culled out from the orders of the authorities below are as under: 2.2. Assessee is an individual and during the year under appeal the Assessee derived income from house property, capital gain and income from other sources. Assessee filed Return of Income on 31.7.2008 for AY 2008-09 declaring total income of Rs. 1,63,330/-. The case was selected for scrutiny and thereafter the assessment was framed u/s 143(3) vide order dated 30.12.2010 and the income was determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land bearing survey No.222/1 as having transfer taken place in this year. 2.2 The ld.CIT(A) has grievously erred in confirming that land bearing survey No.222/1 was transferred during the year under appeal and capital gain had accrued in A.Y. 2008-09, though neither actual and vacant possession of land was delivered nor full consideration realized in this year. It was categorically pointed out in ground No.3.2 before CIT(A) and necessary evidence produced in the paper book. 2.3 That in the facts and circumstances of the case as well as in law the Ld.CIT(A) ought not to have held that there was transfer of land survey No.222/1 during the year appeal and income was chargeable in this year. Both the lower authorities have failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred as per the provisions of section 2(47)(i) is concerned. In view of these facts, I am inclined to agree with the arguments of the ld.A.O. and accordingly addition of Rs. 84,25,909/- is confirmed. This ground of appeal is dismissed." 5. Aggrieved by the order of CIT(A), the Assessee is now in appeal before us. 6. Before us, the Ld A.R. submitted that Assessee had sold agricultural land admeasuring about 6534 sq. yd at Vadaj, Ahmedabad for a total consideration of Rs. 1,69,88,400/- and for which banakhat was executed and registered on 18.12.2006 and banakhat money of Rs. 8.50 lacs was received. The conveyance deed in respect of the aforesaid land was executed and registered on 19.3.2008. The copy of the sale deed was placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. The Assessee declared capital gains in AY 2009-10. The copy of the return of income for AY 2009-10 was placed on record at page Nos.154 to 160 of the paper book. The Ld.A.R. thus submitted that since neither the full value of consideration as stated in conveyance deed was actually received nor the actual and vacant possession of the said property was delivered, it cannot be said that transfer of land had taken place in the year under consideration and therefore it was not liable to tax in the year under appeal. He further submitted that there is no loss of revenue by considering the capital gains in AY 2009-10. He further relied on the decisions in the case of ITO vs Smt Satyawati Devi Verma (2010) 124 ITD 467 and in the case of Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated that the Assessee has handed over the vacant and peaceful possession of land to the purchaser on 4.2.2009 and the purchaser became the occupier of the land from 4.2.2009 and the purchaser was entitled to transfer the land in his name in the Government records from that date. Thus, the intention of the parties appears to transfer the possession of land on receipt of final amount and which in this present case had taken place on 4/2/2009.. From the above facts it can be concluded that though the Assessee entered into agreement for sale on 19.3.2008, the actual rights and benefits in the land were transferred by the Assessee on receipt of the final installment i.e. in AY 2009.10. The Assessee has disclosed the capital gains in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the totality of facts and relying on the decisions of the H'ble HC in the case of Raj Rani Devi Ramna (supra) and of the Tribunal in the case of Satyawati Devi Verma (supra), we are of the view that the Assessee had given the possession of land in February-2009 to the purchaser and the purchaser could enjoy the fruits of property only after that date. In view of these facts we are of the view that the assessee has rightly treated the transfer of land in AY 2009-10 and therefore the AO was not right in taxing the income on sale of land in AY 2008-09. Thus this ground of the Assessee is allowed. We thus allow the appeal of the Assessee. Assessee's appeal in ITA No.151/Ahd/2012 10. Both the parties have submitted that the facts and issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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