TMI Blog2011 (10) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... t approve it and similarly it is also the duty of the A.O to allow even those benefits about which the assessee is ignorant but otherwise legally entitled to. The issue raised in Ground No. (1)(b) is thus decided in favour of the assessee. - ITA No. 834/PN/2008 - - - Dated:- 4-10-2011 - SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER Appellant by : Shri D.Y. Pandit Respondent by : Ms. Ann Kapthuama ORDER Per I.C. Sudhir JM The revised Grounds of appeal are as under : Grounds of Appeal: (1)(a): Ld.CIT(A) failed to take cognizance of the judgement of Additional District Asstt. Sessions Judge, Pune, declaring the partition of the property dt. 26.6.1986 between Vitthal Kodre Others as invalid assessee B.V. Kodre HUF therefore had no locus stand to enter into development agreement with Deepganga Associates and as such said agreement becomes void. (1)(b) :In the facts and circumstances of the case and in law, the learned Assessing Officer has erred in holding that under the Development Agreement dated 27.6.2003 transfer of property has taken place within the meaning of Sec 2(47) of the Income Tax Act 1961 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for development of land to the Land Revenue authorities, Revenue Collector for conversion of the agricultural land into Non-agricultural land, demarcation of land area, then for taking permission from Municipal Corporation. The reasons for taking such Power of Attorney is for the convenience and time saving. Thus, obtaining power of attorney does not mean the physical possession of the land is given to promoter/ builder at the time of development agreement. All such applications made before the government authority as stated above were always in the name of land owner and the promoter/builder was given permission to act on behalf of the land owner and for that purpose to enter the agremment for development of land. The assessee submitted further that under Sub-clause (v) of Section 2(47) of the I.T. Act, physical possession of the property under law is a pre- condition to consider it as a transfer u/s. 2(47). Mere permission granted for development of plot does not amount to taking possession of the property u/s. 53A of the Transfer of Property Act and therefore, under Sub-Clasuse (v) of Section 2(47) of the IT Act does not amount to transfer of land so as to attract capital gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject land is subsequent development which does not effect the transaction entered into earlier. 6. Before us, the Ld. A.R. reiterated similar submissions as made before the authorities below. He also placed reliance on the following decisions : 1) General Glass Company (P.) Ltd., 14 SOT 32 (Bom) 2) ITO v/s. Smt. Satyawati Devi Verma (2010), 124 ITD 467 (Del) 3) Smt. Raj Rani Devi Ramna v/s. CIT (1993), 201 ITR 1032 (Patna). 7. The Ld. D.R. on the other hand tried to justify the orders of the authorities below. He submitted that in its return of income, the assessee itself has computed the capital gains by taking figure of ₹ 81,20,220/- (the value of the property adopted by Sub Registrar for the purpose of Stamp Duty) by applying provisions of Section 50C of the Act. He placed reliance on the decision of Hon'ble Supreme Court in the case of Goetz India (India) Ltd., 284 ITR 323 (SC) holding that no claim can be made without filing return/revised return. Therefore, admitting any claim of the assessee which is neither preferred in the original return nor in the revised return would tantamount to extention of time limit for revising re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose had clearly intended that despite, the execution and registration of Sale Deed, transfer by way of sale would become effective only on payment of the entire sale consideration, it had to be held that there was no transfer made, it was held by the Hon'ble Patna High Court in the case of Smt. Raj Rani Devi Ramna v/s. CIT (Supra). In that case before the Hon'ble Patna High Court, an stipulation in a Sale Deed was that only on payment of the entire consideration the registration receipt would be handed over and delivery of possession would be given. It was held by the Hon'ble High Court that date of registration of Sale Deed could not be considered to be the date of transfer. The Delhi Bench of the Tribunal in the case of ITO v/s. Smt. Satyawati Devi Verma (Supra) held that the agreement only contained the terms and conditions to be adhered to and complied with at the time of sale of property by the vendor and purchaser of the property at specified future date without any future addition or modification of the conditions. As there was neither transfer nor extinguishment of any right, vendor remained lawfully owner of the property and paid all Municipal Taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound No. (1)(b) is thus decided in favour of the assessee. The Ground (1)(b) is thus allowed. The decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. Vs. CIT(Supra) relied upon by the authorities below is not helpful to the revenue as distinguishable facts are there. There after filing of return, the assessee by filing a letter to the A.O sought to claim a deduction. The A.O disallowed it on the ground that there was no provision in the I.T. Act allowing an amendment in the return without a revised return. It was upheld. In the present case before us the question is as to whether transfer immovable property as per S. 2(47) of the Act was there to make the assessee liable to pay the capital gain tax. There is no estoppels against the proper application of the law. 12. In view of the above decision on the issue raised in Ground No. (1)(b), the issue raised in Ground No. 1(a) has become academic only, hence it does not require adjudication. The other Grounds are alternative Grounds which also do not require adjudication in view of our finding on the issue raised in the main Ground No. (1)(b). 13. The appeal is accordingly allowed. The order is pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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