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2017 (1) TMI 631 - ITAT CHANDIGARH

2017 (1) TMI 631 - ITAT CHANDIGARH - TMI - Capital gain computation - consideration received - pro-rata transfer of land - Transfer exigible to tax by reference to Section 2(47)(v) read with Section 53-A of the Transfer of Property Act, 1882 - JDA entered by assessee - Held that:- We find no infirmity in the order of the learned CIT (Appeals) in directing the Assessing Officer to recompute the short term capital gain on the amount actual received by the assessee. We find that the aforestated dir .....

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all the grounds raised by the Revenue are dismissed. - ITA No. 1117/Chd/2016 - Dated:- 5-1-2017 - Shri Sanjay Garg, Judicial Member And Ms. Annapurna Gupta, Accountant Member Appellant by : Shri Manjit Singh, DR Respondent by : None ORDER Per Annapurna Gupta, A. M. The appeal filed by the Revenue is directed against the order of Ld. Commissioner of Income Tax (Appeals)-2, Chandigarh dated 17.8.2016 relating to assessment year 2008-09. 2. The brief facts relating to the case are that a Housing So .....

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u of monetary consideration and also consideration in kind to the members of the society. The assessee was also a member of the said society owning 150 sq.yards plot of land. The total consideration was settled at ₹ 10,50,000/- plus allotment of one flat of 1150 sq.ft. to the assessee. In view of the above reasons, proceedings under section 147 of the Income Tax Act, 1961 (in short 'the Act') were initiated and notice under section 148 of the Act was issued to the assessee in respo .....

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o his notice that on identical facts, the issue in appeal had been decided by the Hon'ble Punjab & Haryana High Court in the case of Shri C.S. Atwal (ITA No.200 of 2013). The Ld. CIT (Appeals) following the judgment of the Hon'ble Punjab & Haryana High Court directed the Assessing Officer to recompute the short term capital gain only on the amount actually received by the assessee in pursuance to the said agreement. 4. Aggrieved by the same, the Revenue has now come up in appeal, .....

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nsfer' for the purposes of section 2(47)(v) of the Income Tax Act 1961read with Section 2(47)(ii), 2(47)(vij, and explanation below 2(47) and Section 269UA had taken place. 2. On the facts and in the circumstances of the case and m law, the Ld. CIT(A) has erred in holding that that no possession had been given by the transfer or to the transferee of the entire land in part performance of the JDA read with possession letter and irrevocable special power of attorney so as to fall within the do .....

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ithin the domain of Section 53A of the Transfer of Property Act 1882 whereas by virtue of the duly registered irrevocable special power of attorney, the developer was in complete control of the property and was in possession thereof including all rights of a defacto owner. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the essential ingredients of Section 53A of the Transfer of Property Act 1882 were not fulfilled on the mere ground that .....

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Ld. CIT(A) has erred in holding that the possession delivered, if at all, was as a licencee for the development of the property and not in the capacity of the transferee whereas all possible rights in the property including the right to sell etc. had been given to the builder. 6. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in bifurcating the agreement into different portions and allowing the assesses to pay capital gains tax only when cash or money is r .....

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ax Act 1961 in the case of the assessee as the provisions of section 2(47)(ii) and 2(47)(vi) also make the assessee liable for capital gains under the Income Tax Act 1961. 8. On the facts and in the circumstances of the case and law, the Ld. CIT(A) has erred in holding that the provisions of section 2(47)(vi) of the Income Tax Act were not applicable in absence of registered conveyance deed disregarding the decision of the Supreme Court in Podar Cement ltd. holding that the principle of Common l .....

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