9911796707
TMI Blog2017 (8) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... /2009 -Brief Facts: 2.The assessee-an individual, is an investor in shares and securities. It filed its return of income on 07/10/2003 declaring total income of Rs. 65,35,760/-. The case was selected for scrutiny and the AO completed the assessment vide order dated 31/03/2006 determining the income of the assessee at Rs. 1.84 crores. 3.The AO has raised 8 grounds of appeal. Ground number 1, 7 and 8 are general in nature, hence are not being adjudicated.Remaining all the grounds are about taxing the capital gains. During the assessment proceedings, the AO found that the assessee had shown a sum of Rs. 1.60 lakhs on account of sale of the Dahisar property, that the assessee along with other coowners own a plot of land, that they formed an AOP and had entered into an agreement to sell the plot of land to Pratima Enterprises (PE) for a total consideration of Rs. 18.75 lakhs, that the AOP received Rs. 8 lakhs, that the assessee was entitled to get 20% (Rs. 1.60 lakhs) of the sale proceeds, that it had not offered the amount in question for taxation. The AO directed the assessee to file an explanation in that regard.Vide his letter dated 20/12/2005 the assessee stated that transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of consideration, that there was no transfer in accordance with the provisions of section 2 (47) of the Act, that the land in question as per the revenue record was still in the name of the assessee, that there was no transfer of the plot as per the provisions of section 53A of the Transfer of Property Act. He held that there was an agreement for sale entered into between the five co-owners as vendors including the assessee with PE, that agreement was not registered, that as per the agreement total consideration payable by the purchaser was Rs. 18.75 lakhs, that the purchaser did not make the payment as per the schedule payment fixed in the agreement for sale, that the purchaser before the AO had claimed that payment of entire amount had been made on different dates and had also submitted the details, that no bank statement was furnished before the AO, the assessee had received Rs. 2.35 lakhs only, that remaining amount of Rs. 1.40 lakhs were not received by him, that the claim made by the purchaser about making the full payment and the interest was not supported by bank statement, that the contention of the assessee of not having received the remaining payment was established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the file of the AO for determining the capital gains. The Authorised Representative (AR) contended that the assessee had received only part payment, that in the revenue records name of the assessee was appearing as the owner of the plot of land, that dispute was going on before the civil court between the purchaser and the assessee, that the provisions of section 50C were not applicable, that valuation adopted by the AO as per the said section was against the provisions of the act, that the AO had not alleged that the assessee had received on money, that no stamp duty was paid for the transaction, that registration of the plot of land had not taken place, that reference was made by the AO to the valuation officer u/s.142 (A) of the act and not u/s.55A as claimed by the AO, that the assessee had cooperated with the valuation officer,that if indexation was allowed the assessee would have no objection to offer the disputed amount under the head capital gains.He referred to the pages 25-28, 34, 38,123 and 125 of the paper book. He relied upon the cases of R. Sugantha Ravindran (352 ITR 488), Ramesh Verma (163 ITD 421) and argued that unless the property transferred had been regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the valuation officer u/s.142 and not u/s.55A of the Act. Clearly, the reference was not in accordance with the provisions of the law. As far as applicability of section 50C is concerned it is sufficient to say that provision of the said section were not applicable to the facts of the case under consideration. The Hon'ble Madras High Court in the case of R. Sugantha Ravindran(supra)has deliberated upon the facts of the case and has decided the issue at length.We are reproducing the relevant portion of the judgment and reads as under: "6.The issue involved in this case is as to whether the Assessing Officer is entitled to take the value of the property assessable by the authority of the State Government for the purpose of payment of stamp duty in respect of said transfer or not. Admittedly, in this case, no registration of sale deed had taken place. It is the case of the Revenue that only in pursuance of the agreement of sale, the assessee had transferred the property and received the sale consideration. In such circumstances, whether section 50C of the Act would be made applicable even in respect of cases w is here the registration had not taken place, is the only issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No. 5 of 2010, dated June 3, 2010 [2], issued by the Board, it is made clear that the amendment made by the Finance (No. 2) Act, 2009, is prospective in nature and cannot be applied retrospectively. So it is stated therein that the scope of the provisions does not include transactions which are not registered with the stamp duty valuation authority and executed through agreement to sell or power of attorney. Consequently, the amendments have been made applicable with effect from October 1, 2009 and will apply only in relation to transactions undertaken on or after such date." Considering the above, we decide GOA 2,3,5 and 6 against the AO. 7.Ground number 4,raised by the AO and second ground of the assessee are identical.So, while deciding the appeal filed by the assessee,we would deal with it. ITA/2608/Mum/2009,(Nalin P Shah): 8.First ground of appeal, filed by the assessee, is about portfolio management services.During the course of hearing before us, the AR stated that considering the smallness of the tax effect for the year under consideration the assessee was not interested in pursuing the same.Hence, same stands dismissed as not pressed. 9.Second ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
