TMI Blog2018 (2) TMI 1761X X X X Extracts X X X X X X X X Extracts X X X X ..... age 30 of the paper book, it is clear full consideration has not been paid. Therefore the agreement of sale cannot be considered for the purpose of reckoning the holding period. The only date which can be considered is the date of registration of sale deed that is 5/12/2005. Therefore, gains arising out of entering into joint development agreement are assessable as ‘short term capital gain’. Hence, short term capital gains are not eligible for exemption u/s 54D of the Act. Therefore we uphold the order the lower authorities. Decided against the assessee. - ITA No.1057/Bang/2016 - - - Dated:- 26-2-2018 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER and SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER For the Appellant : Shri B.E.Balasubr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the jurisdictional High Court in the case of CIT vs. Dr. T K Dayalu in ITA No.3209 of 205 c/w ITA No.3165 of 2005. Therefore, the AO held that there is transfer within the meaning of section 2(47) and assessed to Capital gains by adopting cost of construction of the share of built up area as a consideration and computed short term capital gains and brought to tax. 4. Being aggrieved, an appeal was preferred before the ld.CIT(A) who, vide impugned order, after calling for remand report from the Assessing Officer and after giving notice of enhancement to the assessee, enhanced the consideration by adopting cost of construction at Rd.1061 per sq.ft. as against ₹ 955/- adopted by the appellant and also confirmed the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll property, some right in the asset is extinguished in favour of the seller and this right in personam created in favour of the intended purchaser. He also placed reliance on the decision of the Hon ble Karnataka High Court in the case of Shakuntala (ITA No.1707 of 2006). He also placed reliance on the decision of the Hon ble High Court of Andhra Pradesh in the case of M.Syamal Rao vs. CIT (234 ITR140), Hon ble Punjab Haryana High Court decision in the case of CIT vs Ved Prakash Sons (207 ITR 148) in support of the contention that the subsequent event of registration of sale deed is not relevant. It is only the date of agreement which is material for the purpose of reckoning the holding period of the assessee to determine whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt it is trite law that on entering into agreement of sale, the seller relinquishes certain rights in favor of the buyer. But the crucial factor to be taken into consideration is whether the buyer has taken possession of the property and paid consideration agreed etc. In the present case, the assessee never produced this agreement of sale before the Assessing Officer. Therefore genuineness of the agreement is not beyond doubt. Furthermore mere perusal of the agreement of sale placed at page 30 of the paper book, it is clear full consideration has not been paid. Out of total amount of consideration of ₹ 12 lakhs onlya sum of ₹ 1 lakh was stated to have been paid. There is no covenant in the agreement of sale that possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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