Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (11) TMI 462

..... s’ 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 of an asset (other than a capital asset), being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer.’ It is manifest from the above provision that it is a deem .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... P : This appeal by the assessee is directed against the order passed by the CIT(A) on 26-06-2018 in relation to the assessment year 2014-15. 2. The only issue raised in this appeal is against the confirmation of addition of ₹ 89,54,638/- towards long term capital gain and of ₹ 1,42,43,500/- as business income on sale of land situated at Gut no. 123, Tisgaon Tal and Dist. 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 201 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... thin the purview of the definition of transfer u/s. 2(47)(vi) of the Act. He, therefore, held that income from such transfer was liable to be taxed in the hands of the assessee. Considering the fact that the assessee had herself computed deferred capital gain u/s.45(2) at ₹ 89,54,638/- in her return for the A.Y. 2011-12 when the capital asset was converted into stock in trade, the AO computed business profit at ₹ 1,42,43,500/-, being, the value adopted for stamp duty as on 01-04-2013 at ₹ 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 ₹ 1.04 crore. He, therefore, added ₹ 89,54,638/- as capital gain in the hands of assessee and a furthe .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... g building thereon. 6. At this juncture, it is relevant to note the judgment of Hon ble Supreme Court in CIT Vs. Balbir Singh Maini (2017) 398 ITR 531 (SC) in which the issue was about the ambit of transfer u/s. 2(47) of the Act. While dealing with the issue, the Hon ble Supreme Court has held that if an agreement for transfer of immovable property is not registered, it does not take effect and hence transfer of immovable 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 fulfille .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... transfer rights akin to ownership to the developer, it was held that at the highest, possession alone was given under the agreement, and that too for a specific purpose. 7. Adverting to the facts of the instant case, it is found that not only no registered sale deed was executed by the assessee in favour of M/s Fulzan Properties, but even the possession was also not given to be enjoyed as an owner. There are 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 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... Act can be magnetized only when some building or land etc., held otherwise than as a capital asset, is transferred. In case the property itself is not transferred, the question of deeming the stamp value as the full value of consideration does not arise, which is only a stage posterior to the transfer of the property. 9. We, therefore, hold that the authorities below were not justified in making or confirming the addition in the hands of the assessee under the head Capital gains as well as Profits and gains from business or profession by treating it as a case of transfer of land to M/s Fulzan Properties in as much as the land itself was not transferred by the assessee during the year under consideration. 10. In the result, the appeal is al .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||