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TMI Blog2017 (5) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... t to sell dated 9.2.2009 which was not shown in the return of income. During the course of assessment proceedings, the assessee submitted before the AO that the assessee has invested an amount of Rs. 13,62,900/- in new house property and hence he requested the AO to grant exemption u/s 54F of the Act but the same was declined by the AO by referring and relying on the decision of the Hon'ble Supreme Court in the case of Goetz India Ltd V/s CIT (2006) 284 ITR 323 (SC). The said property was purchased on 28.7.2004 for a total consideration of Rs. 6 lakhs and other expenses like stamp duty, renovation cost of Rs. 47,000/-. The AO worked out capital gains as under : Sale consideration : Rs.30,00,000 Less brokerage : Rs. 51,111 Net consideration : Rs.29,48,889 Less Indexed cost of acquisition(664780 x 582/480) : Rs. 8,06,046 Long term capital gains Rs.21,42,843 Accordingly, assessment was framed vide order dated 7.12.2011 passed under section 143(3) of the Act at an income of Rs. 23,14,390/-. According to the assessee, he entered into an agreement dated 9.2.2009 for sale of immovable property for a total consideration of Rs. 30.00 lakhs ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h within a stipulated period as laid down in the agreement between the transferor and the transferee. 7. The Hon. Bombay High Court in the case Chaturbhuj Dwarakadas Kapadia Vs CIT reported in 260 ITR 491 laid down following principles with regard to transfer of property u/s 2(47) of the Act: "Before us, it was argued on behalf of the assessee that the date on which possession is parted with by the transferor is the date which should be taken into account for determining the relevant Accounting Year in which the liability accrues. It was argued on behalf of the assessee that in this case, irrevocable licence was given in terms of the contract only during the financial year ending 31st March, 1999 and, therefore, there was no transfer during the financial year ending 31st March, 1996. On the other hand, it was argued on behalf of the revenue that one has to go by the date on which the developer substantially performed the contract. It was argued on behalf of the department that since substantial payments were made during the financial year ending 31st March, 1996 and since majority of permissions were obtained during that year, the liability to pay capital gains tax accrued durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the question of substantial performance of the contract thereafter does not arise. This point has not been considered by any of the authorities below. No judgment has been shown to us on this point. Therefore, although there is a concurrent finding of fact in this case, we have enunciated the principles of applicability of section 2(47)( v). We do not find merit in the argument of the assessee that the Court should go only by the date of actual possession and that in this particular case, the Court should go by the date on which irrevocable licence was given. If the contract, read as a whole, indicates passing of or transferring of complete control over the property in favour of the developer, then the date of the contract would be relevant to decide the year of chargeability." 4. The ld. AR vehemently submitted before us that the ld. CIT(A) has grossly erred in fact and in law in upholding the order of the AO by holding that the transfer of property took place on 9.2.2009 as against 11.5.2009. The ld. AR submitted that on 9.2.2009 the agreement to sell was executed and registered alongwith payment of Rs. 1.00 lakh to the assessee. The ld. AR while referring to the various pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of authorities below and case laws relied upon by the parties. We find that the assessee is a member of co-operative housing society holding shop in the said society which was sold by him vide agreement to sale dated 9.2.2009 for a total consideration of Rs. 30.00 lakhs and a sum of Rs. 1.00 lakh was received as an advance with the signing of the agreement dated 9.2.2009. However, due to non fulfillment of terms of the agreement to sell qua the payment of balance amount the sale eventually took place in the assessment year 2010-11. The balance consideration of Rs. 29.00 lakhs was paid in the month of April, 2009 and the possession was handed over to the purchaser on 11.5.2009 as evidenced by a letter dated 11.5.2009 and also vide sale-com-assignment deed dated 11.5.2009. In view of these facts, we are of the considered view that the sale of shop has definitely taken place in the assessment year 2010-11 and not in the assessment year 2009-10 as has been observed and concluded by the AO and confirmed by the ld.CIT(A). Further the sale is covered under the provisions of section 2(47)(v) and not under the provisions of section 2(47)(vi) of the Act as has been held by the lower auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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