TMI Blog2019 (5) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of joint family property. The said claim of assessee cannot be rejected by the Assessing Officer observing that the amount which was put into capital gains account has been transferred to some person. The explanation of assessee in this regard was that the amount has been transferred to joint bank account of his brothers and himself, wherein the money was utilized for construction of joint ancestral house. We thus, direct the Assessing Officer to allow the said claim also in the hands of assessee. - Decided in favour of assessee. - ITA No.650/PUN/2011 - - - Dated:- 30-4-2019 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM For the Appellant : Shri C.H. Naniwadekar For the Respondent : Shri Pankaj Garg ORDER PER SUSHMA CHOWLA, JM: The appeal filed by assessee is against order of CIT(A)-V, Pune, dated 14.02.2011 relating to assessment year 2007-08 against order passed under section 143(3) of the Income-tax Act, 1961 (in short the Act ). 2. The assessee has raised the following grounds of appeal:- 1. The learned CIT (A), erred on facts and in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of assessee was taken up for scrutiny. The Assessing Officer noted that the assessee along with Shri Sahebrao Narayan Kalokhe had entered into an agreement dated 05.11.1997 with Shri Ishwar Pandu Chavan, Suresh Ishwar Chavan and others for purchase of land bearing Gat No.338 at Taluka-Haveli, Pune. The Assessing Officer notes that sale consideration was not mentioned in the said agreement. As per para 2, it is mentioned that purchaser i.e. assessee could develop the said land as per his wish. Further, the assessee along with Shri Sahebrao Narayan Kalokhe had also entered into another purchase agreement dated 02.09.1997 with same parties for purchase of land bearing Gat No.339, 340 and 341 at Taluka-Haveli, Pune for consideration of ₹ 6,10,000/- with right to develop the said land as per his wishes. Further, the assessee on 07.12.2004 entered into Development Agreement with Shri Suresh Ishwar Chavan and others for development of said plot of land i.e. Gat Nos.338, 339, 340 and 341 for consideration of ₹ 10,01,000/-. As per para 2A of the said agreement, the assessee got right to develop the land and to construct ownership flats, etc. and sell it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act and relying on the decision of the Hon ble Bombay High Court in CIT Vs. R.R. Sood reported in 161 ITR 92 (Bom) held that the Assessing Officer was right in holding that capital gains in question were Short term capital gains and not Long term capital gains , since the property was acquired through registered deed executed on 07.12.2004 and sold through transfer agreement dated 29.11.2006 and the period of holding was clearly less than 36 months. 6. The assessee is in appeal against the order of CIT(A). 7. The learned Authorized Representative for the assessee stressed that the assessee had entered into two agreements i.e. on 05.11.1997 and 02.09.1997 for purchasing the rights in two pieces of land. He further stated that total consideration paid was about ₹ 10 lakhs and ₹ 6 lakhs out of said amount was paid by cheque. He further stressed that the possession of said land was received by assessee but it was not legally received as the said land was maherwatan land. He pointed out that the said agreements were not registered. He explained that the owners were occupant class-2 i.e. they had limited rights; but by paying 50% of land v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same is not disputed by any of the parties. The date of handing over of cheque of ₹ 6 lakhs is dated 02.09.1997 and the same has not been found to be incorrect by the authorities below. The assessee explained that the land which was maherwatan land, wherein the owners were occupant class-2 and had limited rights in the said land. The owners could become complete owners of the said pieces of land only after payment of 50% of land value and then transfer or develop the said pieces of land. This exercise was done by the owners on a later date. Consequently, earlier agreement through which the assessee had paid ₹ 6 lakhs by cheque and balance ₹ 4 lakhs for which details were not available, but for which an agreement is executed in 1997, were re-written in the agreement dated 07.12.2004. The perusal of contents of said agreement, which is registered document between the same parties reflects the same consideration. If the case of Revenue was to be believed, then in the changing scenario where the value of said property in 1997 was about ₹ 10 lakhs would not remain to be the same in 2004 i.e. on the date of execution of registered document on 07.12.2004. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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