TMI Blog2018 (12) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 50C of the Act will not applied. We confirm the order of CIT(A) and this issue of Revenue’s appeal is dismissed. - ITA No. 3409/Mum/2014 And CO No. 02/Mum/2017 - - - Dated:- 11-12-2018 - SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM For The Appellant : Shri Satish Chandra Rajore, DR For The Respondent : Shri Jayant R. Bhatt, AR ORDER PER MAHAVIR SINGH, JM: These cross appeal are arising out of the order of Commissioner of Income Tax (Appeals)-33, Mumbai [in short CIT(A)], in appeal No. CIT(A)-33/IT/243/12-13 vide dated 07.02.2014. The Assessment was framed by the Dy. Commissioner of Income Tax, Central Circle 22(2), Mumbai (in short DCIT/ AO ) for the A.Y. 2009-10 vide dated 21.01.2013 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.03.2012 set aside the assessment order passed by AO under section 143(3) of the Act on the issue of calculation of capital gains. He directed the AO to refer the issue of valuation of property to the Valuation Officer (VO) to determine the fair market value on the date of sale and accordingly, recalculate the capital gains. Accordingly, the matter was referred to the DVO by the AO and DVO determine the fair market value of the property at ₹ 2,60,68,400/-. Accordingly, the AO computed the capital gain after allowing deduction on account of index cost of acquisition at ₹ 2,57,05,500/- by observing in Para 6 to 6.2 as under: - 6. In response to the above notice u/s.142(1) of the Act and its annexure, the assessee, Shri Amarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated for concealment and furnishing inaccurate particulars in respect of income chargeable to tax. Aggrieved, assessee preferred the appeal before CIT(A). 4. The CIT(A) after considering the submissions of the assessee noted that this property has been transferred in view of agreement entered dated 11.10.1986 and further duly registered with sub-registrar, Mumbai vide registration No. BOM/M Ward/GEN/895 of 86-87 dt.26.03.1987 and accordingly, held that the transfer of land was effected in the year 1987, therefore, the provisions of section 50C of the Act will not apply. For this the CIT(A) has observed in Para 3.11 to 3.15 as under: - 3.11 I have gone through the assessment order, submissions made by the appellant and have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of this agreement as also the by law or the memorandum and articles of associations in connection with the formation, registration and / or incorporation of the co-operative society of the limited company as the case may be? 3.14 It is thus clear that by the aforesaid agreements the appellant had already sold right title and interest in the land along with the galas to the purchasers and he had also agreed to convey the plot in favour of the society on its formation. It is also not in dispute that in consonance with the said understanding the purchasers of the galas have already formed the society which was registered having registration No. BOM/M Ward/GEN/895 of 86-87 dt.26.03. 1987. Further, the bylaws of the said society as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going pertaining to the land were met by the society from the collection it had made from its members and that the possession of the said land in its own right was always available with the members and the society and, therefore, as per the provisions of See 53A of the Transfer of Property Act the transfer of the aforesaid land had already taken place when the assessee had parted with the possession in receipt of money from the members of the society as per the sale agreement. It is also not a case that the agreement with the 12 gala owners was cancelled to whom along with the galas, all rights, title and interest in the said land including any future rights arising out of the said land had stood transferred. Therefore, even at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2013 and stated that the assessee himself has agreed for the addition and the relevant entry is reproduced in Para 6 of AO s order, which is again reproduced in Para 3 of this order. The learned Sr. DR also relied on the decision of Hon ble Uttarakhand High court in the case of Deep Kukreti vs. CIT (2015) 53 taxmann.com 161 (Uttarakhand). Apart from this he has conceded the factual position that the property was transferred in 26.03.1987. On the other hand, the learned Counsel for the assessee supported the order of the CIT(A). 6. We have heard the rival contentions and gone through the facts and circumstances of the case. We find that the above property has been purchased by the purchasers vide agreement dated 11.10.1986 and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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