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TMI Blog2019 (5) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case, the Ld.CIT(A) ought to have upheld the order of the Assessing Officer; 3. It is, therefore, prayed that the order of the Ld.CIT(A) may be set aside and that of the Assessing Officer may be restored to the above extent; 4. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary. The issue raised by the Revenue is that the Ld. CIT (A) erred in deleting the addition made by the AO for a sum of Rs. 1,23,57,940/- under the head "capital gain." 3. The facts of the case are that the assessee is a HUF and deriving its income from house property, capital gain, and other sources. The assessee in the year under consideration declared Short Term Capital Gain (in short STCG) amounting to Rs. 32,34,190/- in its return of income on the transfer of the agriculture land to Uttar Gujarat BarGam Kavda Patidar Samaj (for short UGBKPS) for a consideration of Rs. 44,75,000/- only. The assessee further submitted that it had transferred the said agriculture land in two parts to the same party as mentioned above. First, part was transferred in A.Y. 2010-11, and another part was transferred in A.Y. 2012-13. The assessee transferred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocable POA. As such the AO considered the transfer of such land by taking the date when the sale deed of the entire land was executed (i.e., 19/04/2012) and accordingly considered the jantri value as on the date sale deed. Therefore the AO accordingly by applying the provision of section 50C of the Act, considered the transaction value of the property of Rs. 1,66,56,080/- as provided in the jantri value submitted by the sub-registrar instead of Rs. 44,75,000/- as claimed by the assessee. The AO by applying the provision of section 50C of the Act has taken the transaction value/sale consideration of Rs. 1,66,56,080/- as the valuation made by the stamp valuation authority. Thus the AO recomputed the STCG on the whole of the agriculture land in A.Y.2012-13 by presuming that the land was transferred in A.Y.2012-13 which comes to Rs. 1,23,57,940/- and added to the total income of the assessee. 4. The aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) besides the submission made before the AO, further submitted that it had rightly declared the STCG in two years as the transfer was considered within the meaning of the provision of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in the instant case relates to the transfer of agriculture land by the assessee through an irrevocable general power of attorney. As per the assessee, the transfer of the land through the POA is a valid transfer. But the AO considered the sale deed as a transfer instrument which was executed on 19-04-2012. Thus the AO invoked the provision of section 50C and accordingly took the sale value as the valuation made by the valuation authority to compute the STCG. After that the AO made the addition to the total income of the assessee in the A.Y.2012-13. However the Ld. CIT (A) deleted the addition made by the AO by observing that the STCG should be assessable in the A.Y.2013-14 instead of 2012-13. The Ld. CIT (A) also held that the transfer of the property through irrevocable power of attorney as a valid instrument for transfer of immovable property in terms of the provision of section 2(47)(vi) of the Act. From the preceding discussion, the issues that emerge for our adjudication is detailed as under: i. Whether the assessee transferred the impugned land on the date of sale deed, i.e. 19th April 2012 as held by the AO. ii. Whether the transfer of the property is valid by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Regarding the judgment as relied upon by the ld. CIT-A in the case of Pace Developers and Promoters Pvt. Ltd. reported in 215 taxmann.com 554; we note that the facts are not related to the issue in hand. The issue before the Hon'ble Delhi High Court was about the registration of a power of attorney executed by the party. In that context, the judgment was delivered by the Hon'ble Delhi High Court after referring to the judgment of Hon'ble Supreme Court in the case of Suraj Lamp Industries Pvt. Ltd. (Supra). As such there was no issue regarding the transfer of the property under the income tax Act for working out the tax liability under the head capital gain. Thus we are reluctant to place our reliance on the judgment of Hon'ble Delhi High Court in the given facts and circumstances. At this juncture, we also find important to refer the relevant provisions (bold letters) of section 2(47)(vi) of the Act which reads as under: 47) 88["transfer"89, in relation to a capital asset, includes,- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX (vi) any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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