Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Forum Articles Highlights TMI Notes SMS News What's New Calendar Imp. Links Database More...
Extracts
Home List
← Previous Next →

Shri Javed K. Khan Versus The ITO (2) (3) , Mumbai

Exemption u/s 54 - Transfer u/s 2(47) - whether the handing over of the possession of the property is vital to decide the transfer in term of the provision of Section 2(47) of the Act so as to decide whether the property is held as long term asset or short term asset? - Held that:- As in the case of the assessee, who entered into agreement to sell dated 07-01-2011 and in this agreement a specifically mentioned Clause 2(b) states that the possession of the flat was to be given to the purchaser 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

ths. The assessee has invested a sum of ₹ 89,22,500/- in purchase of new flat, the proceeds out of sale of the flat. In our view the assessee is entitled for deduction u/s 54 of the Act and assessment of this transaction is to be made in assessment year 2012-13 and not in assessment year 2011-12. We direct the AO accordingly. Appeal of the assessee is allowed partly in favour of assessee. - ITA No. 98/MUM/2015 - Dated:- 22-7-2016 - Shri Mahavir Singh, Judicial Member And Shri Rajesh Kumar, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed revised grounds of appeal because the original grounds filed by him were argumentative in nature. To this, Ld. Sr. D.R has not objected. Ld. Counsel for the assessee also filed additional grounds of appeal stating that the CIT (Appeals) erred in not appreciating the fact that the transfer of flat has not taken place in the previous year relevant to the impugned assessment year. For this assessee has raised the following additional ground:- The CIT(A) as well as the Assessing Officer have fail .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

B wing of Ann Ville" as short term capital gains. 2. The Ld. CIT (A) failed to appreciate that the transfer of the flat took place on 14th May, 2011 on handing over the possession to the purchasers in terms of agreement dated 7th January, 2011. Thus, the impugned asset was held by the appellant for a period of more than 36 months. 3. Without prejudice to the above, the Ld. CIT (A) as well as the Ld.A.O. failed to appreciate that the transfer of the impugned asset has not taken place during .....

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 ground that transfer of flat has not taken place during the previous year relevant to this assessment year and accordingly capital gain is not chargeable in this assessment year, will go to the root of the matter, hence, the same requires adjudication. For this Ld. Counsel for the assessee relied upon the decision of the Hon'ble Supreme Court in the case of National Thermal Power Company vs. CIT (1998) 229 ITR 383(SC) and also Full Bench decision of Hon'ble Bombay High Court in the cas .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also. In reply of the above, Ld. Sr. D.R stated that there is no good reason adduced by the assessee for admission of additional ground. 4. We find from the above arguments and facts of the case that the facts relating to transfer of asset are very much available on records i.e. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

B, 3rd Floor, in Ann Ville as a tenant. On 16/04/2008, he entered into an agreement with the owners of the Flat by giving up the tenancy rights and by paying a sum of ₹ 33,798/-, he became the owner of the flat. The relevant agreement is enclosed at pages 18 to 77 of assessee s paper book. Subsequently, on 29/4/2008 assessee s father executed a gift deed, gifting this flat to assessee and this Gift Deed was registered on 30/04/2008. The copy of Gift Deed is enclosed in assessee s paper boo .....

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 disclosed any income under the head capital gains nor furnished any computation of claim of deduction under section 54 of the Act. This information for sale of property was received by the AO through AIR information. The AO noted the fact that the agreement for purchase of the flat was entered into by assessee s father on 16/04/2008 for a sum of ₹ 33,798/- and this was gifted to the assessee by his father on 29/4/2008. This flat was sold by assessee on 7/1/2011 i.e. within 32nd month 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

Act, as under:- Full value of consideration for the purpose of Section 48 as the value adopted by the stamp Duty authority 1,15,87,600/- Less: Cost of acquisition of property by Previous owner 33,798/- Add: Stamp duty 30,700/- 64,498/- Total short term capital gain 1,15,23,102/- 4.10 Since the assessee has completely failed to disclose the transaction regarding sale of property in the return of income and computation of income and is found to have incorrectly claimed, deduction under section 54 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

deration as short term capital gain but partly allowed the claim of the assessee by taking stamp valuation of this property under section 50C of the Act at ₹ 81,11,00,500/- instead of value taken by Assessing Officer at ₹ 1,15,87,600/-. Aggrieved against the action of the CIT (Appeals) confirming the Assessing Officer s order, assessee filed second appeal before the Tribunal. 6. We have heard the rival contentions and gone through the facts and circumstances of the case. The admitted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed). The stamp valuation as per circle rates as valued by Sub-Registrar was at ₹ 1,15,87,600/-. Subsequently, during appellate proceedings before CIT (A), the assessee produced a corrected market value by Sub-Registrar as per circle rate at ₹ 81,11,500/- in place of original value at ₹ 1,15,87,600/-. According to AO, this property was sold by the assessee within thirty two months which is less than thirty six months, the capital gain earned by the assessee is short term capital .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ain and cannot be allowed deduction u/s 54 of the Act. Finally, the CIT (A) also held the transaction as short term capital gain and did not allow deduction u/s 54 of the Act. However, the CIT (A) reduced the fair market value of the property sold by the assessee, as corrected by the Sub- Registrar by adopting circle rates, at ₹ 81,11,500/-. Now, the assessee before us claimed by way of additional ground that as per agreement for sale dated 07-01-2011 clause 2(b) (copy of which is enclosed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

session of the said Flat will be given by the Vendor to the Purchaser in the next 10/30 days because the vendor is himself shifting to another flat where he is to get possession in the next 10/30 days . The learned Counsel for the assessee also referred to the factum of possession given on 14-05-2011 to the purchaser by the assessee. The relevant possession letter in continuation to the agreement dated 06-01-2011 (copy of which is enclosed in assessee s paper book at page 111), which reads as un .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

q Saiyed W/o Mr. Mohmed Sadiq Muhamed Safi Saiyed. The above mentioned property was sold to the purchasers by the seller and agreement registered with the sub-registrar on 07/01/2011 vide BDR-1/257/2011. The seller has not paid any remuneration in any form to the purchasers for the period from 07/01/2011 to 14/05/2011. Till today the seller was responsible for all the Govt. taxes, repair costs, electricity bills etc. From today onwards i.e. 14/05/2011, the purchasers having taken legal possessio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ater. This factum of handing over possession by assessee to the purchaser was before the AO and before the CIT (A) also. There is discussion in the assessment order qua this fact. Now, the question arises whether the handing over of the possession of the property is vital to decide the transfer in term of the provision of Section 2(47) of the Act so as to decide whether the property is held as long term asset or short term asset. 7. This issue, whether the possession is important for deciding 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

n the transfer of immovable property takes place. If the AO is of the firm view that the transfer had taken place on 16.03.2005, for capital gains tax purpose, then it is mandatory to bring to tax, the said income, in A.Y. 2005-06 in which event he ought to have excluded the income offered to tax in A.Y. 2006-07, having observed that reckoned from the date of transfer the assessee has not invested, within six months, the sale proceeds in the long term specified assets. The first appellate author .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ome to the conclusion that the transfer has taken place within section 2(47)(v) of Income Tax Act r.w.s. 53A of Transfer of Property Act twin conditions have to be satisfied, i.e. execution of the agreement and handing over of possession. It is not necessary that both conditions should be satisfied in one year but at the same time only upon satisfying the second condition also it would amount to transfer. In this case also there is no dispute that the agreement is dated 16.03.2005 whereas with r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te the impugned income would escape taxability even in A.Y. 2005-06 and it would really be prejudicial to the interest of the Revenue. Under this peculiar circumstance we have to rationally interpret the findings of the AO as well as the CIT(A) in the backdrop of the clauses in the agreement. As rightly pointed out by the learned counsel for the assessee, the Hon'ble Bombay High Court in the case of Chatrubhuj Dwarkadas Kapadia (supra) has decided the issue by reading the terms of the contra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

has to be held that the transfer had taken place in the previous year relevant to A.Y. 2006-07. Reckoned from the date of possession, i.e., 20.09.2005, the assessee having invested the money within six months in long term specified asset, the benefit of exemption under section 54EC deserves to be extended to the assessee in the instant case. In substance, we hold that the assessee is entitled to exemption under section 54EC of the Act in the year under consideration and we direct the AO accordin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1996-97. A copy of possession letter dt. 10th April, 1998, at pp. 57 of the paper book, shows that the possession was handed over to the developer on 10th April 1998. In any event, in terms of Clause 9 of the development agreement, the possession was to be delivered only after the complete payment was made. Admittedly, this condition was not complied with till the end of the relevant previous year. In these circumstances, when only a small portion of sale consideration was received as earnest/de .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ar of chargeability of capital gains. Therefore, on the facts of the present case, the date of development agreement would not really be relevant to decide the year of chargeability. 13. For the reasons set out above, we are unable to uphold the objections so strenuously argued by the learned Departmental Representative. Even as we do so, we make it clear that whether or not complete control or right to control over the property has passed to developer in the relevant previous year essentially d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

  ↓     Latest Happening     ↓  

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Forum: import purchase

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

Forum: Cess paid instead of SGST

News: RBI Reference Rate for US $

Forum: 3B mistake

Forum: Input credit of gst paid on urd

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector reg.

Forum: transfer of shares

Forum: Input tax credit

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters

Highlight: It is open to the Settlement Commission to use best judgment in arrival of the figure. Nonetheless it has to explain the manner in which the best judgment figure has been arrived at by the Settlement Commission - HC

Highlight: Deemed dividend u/s 2(22)(e) - advances given to societies - in the absence of legal right of the assessee in the said society the amount advanced cannot be treated as deemed income.

Highlight: When electrical installations are treated as plant and machinery the depreciation has to be allowed @ 25% as per provisions contained u/s 32

Forum: GST return filing software online | Easy GST compliance management

TMI Note: Capital Gain - transfer of right in the land or transfer of land itself - addition u/s 50C - Harassment to the honest tax payers

Highlight: Option to avail composition scheme under GST by electronically filing an intimation in FORM GST CMP-02 and FORM GST ITC-03 upto 30-9-2017 - See Rule 3(3A)

TMI Note: Does ICDS apply for the purposes of computing exemption u/s 11 to 13.

Highlight: Voluntary Reporting of Estimated Current Income and Advance Tax Liability - CBDT issues draft notification

TMI Note: Certain ICDS provisions are inconsistent with judicial precedents. Whether these judicial precedents would prevail over ICDS.

Highlight: Provisions of ICDS shall prevail w.e.f. AY 2017-18 to the transactional issues dealt therein over earlier judicial pronouncements.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

News: Voluntary Reporting of Estimated Current Income and Advance Tax Liability

TMI Note: In case of conflict between ICDS and other specific provisions of the Income-tax rules, 1962 governing taxation of income like rules 9A, 9B etc. of the Rules, which provisions shall prevail.

TMI Note: Does ICDS apply to computation of Minimum Alternate Tax (MAT) u/s 115JB of the Act or Alternate Minimum Tax (AMT) u/s 115JC of the Act.

TMI Note: Where a term has not been defined under ICDS, nor under the Act, but has different interpretations given to it by the courts in tax cases, and in ICAI Accounting Standards, which interpretation would prevail while interpreting ICDS.

TMI Note: Whether the provisions of ICDS apply to a non-resident who claims the benefit of a double taxation avoidance agreement (DTAA).

TMI Note: In case any of the ICDS provisions is contrary to a circular or press release issued by the CBDT, which would prevail over the other.

TMI Note: ICDS-I requires disclosure of significant accounting policies and other ICDS requires specific disclosures. Where is the taxpayer required to make such disclosures specified in ICDS.

Notification: Income Computation and Disclosure Standards (ICDS) - New ICDS to be effective from AY 2017-18

News: RBI Reference Rate for US $

Highlight: GST - Detention of goods under transport - discrepancy in documents - the statutory provisions provide a mechanism for adjudication following detention of goods including for the provisional release thereof pending adjudication - HC

Highlight: Reassessment - first few paragraphs of the assessment order dealt with objections and disposed of accordingly - Unfortunately, the manner in which the AO has decided the issue is wholly unsustainable in law - HC

Highlight: Business expenditure u/s 37 - liquidated damage - breach of contract terms - Expenditure was not incurred for any purpose which is an offence or which is prohibited by law - cannot be disallowed - HC

Highlight: Valuation - inclusion of reimbursement of expenses - managing participation of clients in certain mela, fairs, promotional activities etc. - They are liable to service tax on the gross amount received - They cannot restrict their tax liability to only agency commission

Highlight: TDS liability - ITAT confirmed the liability - We do not see how it is possible for us to uphold the order of the Tribunal and when it purports to decide two Appeals of the Revenue by single paragraph conclusion - HC

Highlight: Reopening of assessment - sufficiency of material available with the AO to form a belief that income chargeable to tax had escaped assessment - bogus purchases - seller refused to respond - notice would not be interfered with - HC

Highlight: Exemption u/s 11 - education activities - transport and hostel facilities surplus cannot be considered as business income of the assessee society

News: Draft Notification for insertion of new rule 39A in the Income-tax Rules, 1962 comments and suggestions-reg.

Highlight: Genuineness of labour wages expenses, embroidery charges, fabrication expenses etc. - getting work done through small workmen who do not have any permanent place of residence - disallowance of ad hoc expenditure deleted.

Highlight: Project import - Since the goods were never used for the purpose for which it was imported, the actual user condition has been violated - Redemption fine and penalty imposed.

Highlight: Penalty u/s 112 (a) - CHA - Lack of due diligence and failure to take more precautions can not, by itself, bring in penal consequences

Highlight: Import of services - GST - The fact that those services were received outside India will not change the fact that the services have been paid for by the beneficiary appellant, who is located in India. - Demand confirmed.

Notification: SEZ for IT/ITES at Madhurwada Village, Visakhapatnam District in the State of Andhra Pradesh - denotified.

Highlight: Merely because payment is received in Indian rupee, it cannot be said that payment against export has not been received in convertible foreign exchange.

Highlight: Merely vehicle numbers was not mentioned on the invoices cannot be the reason to deny Cenvat Credit

Highlight: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017 - Circular

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017



|| 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