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TMI Blog2019 (11) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ist. Aurangabad. 3. Succinctly, the facts of the case are that the assessee along with certain other persons purchased a piece of land admeasuring 6100 sq. mtrs on 4.4.2003 at Gut No.123, Tisgaon, Waluj, Aurangabad, with her separate share at 66.67% coming to 4066 sq.mtrs. The assessee converted such land from capital asset to stock in trade in the Financial year 2010-11 relevant to the assessment year 2011-12 and computed deemed capital gain u/s.45(2) of the Income-tax Act, 1961 (hereinafter also called `the Act') at Rs. 89,54,638/-. Thereafter, a partnership firm with the name and style of M/s. Fulzan Properties was brought into existence by the assessee and her husband. The firm undertook construction of a project on the said land owned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted business profit at Rs. 1,42,43,500/-, being, the value adopted for stamp duty as on 01-04-2013 at Rs. 4050 per sq.mtr on 6100 sq. mtrs as reduced by the market value considered on the date of conversion in the F.Y. 2010-11 at Rs. 1.04 crore. He, therefore, added Rs. 89,54,638/- as capital gain in the hands of assessee and a further sum of Rs. 1.42 crore as business income on the transfer of such land to M/s. Fulzan Properties. The ld. CIT(A) echoed the assessment order on this point. The assessee is aggrieved by the decision of the ld. CIT(A). 5. We have heard the rival submissions and gone through the relevant material on record. It is an undisputed fact that the assessee purchased Gut no. 123 at Village Tisgaon, Waluj, Aurangabad on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmovable property, otherwise than through a registered agreement, does not amount to `transfer' u/s 53A of the TPA in view of the 2001 amendment and also simultaneous amendment to sections 17(1A) and 49 of the Registration Act, 1908. Their Lordships further observed in para 19 of the judgment that: `An agreement of sale which fulfilled the ingredients of Section 53A was not required to be executed through a registered instrument. This position was changed by the Registration and Other Related Laws (Amendment) Act, 2001. Amendments were made simultaneously in Section 53A of the Transfer of Property Act and Sections 17 and 49 of the Indian Registration Act. By the aforesaid amendment, the words "the contract, though required to be registered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two parts of the ultimate property, namely, the superstructure which is owned by the firm and the land beneath, which is owned by the assessee. In view of the fact that the assessee did not transfer the land to M/s. Fulzan Properties, we hold that the authorities below were not justified in treating it as a case of sale, being, transfer of land by the assessee to the firm. 8. At this juncture, it is significant to note the `Special provision for full value of consideration for transfer of assets other than capital assets in certain cases' as contained in section 43CA of the Act, which has been heavily relied by the AO. Sub-section (1) provides that : `Where the consideration received or accruing as a result of the transfer by an assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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