TMI Blog2010 (12) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... rch Road, Mylapore, Chennai to M/s Devaki Hospital Ltd. The sale agreement was jointly executed by the assessee alongwith one M/s Eskee Cee Medical Foundation P. Ltd. ( M/s ECM for short) for a total consideration of ₹ 1.45 crores. The consideration was to be shared by the assessee and M/s ECM in the ratio of 62:83. The sale proceeds insofar as assessee was concerned was received in two instalments of ₹ 50 lakhs on 27-08-1992 and ₹ 12 lakhs on 10-12-1999. As per the AO, possession of the property was handed over and entire sale consideration of ₹ 62 lakhs was received by 10-12-1999. He was of the opinion that a deemed transfer had taken place in terms of sec. 53A of the Transfer of Property Act 1882 ( TP Act for sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am submitting the copy of the agreement dated 29-10-01 and sale deed dated 13-3-2002. Based on the sale deed, it is evident that the transaction has taken place in the previous year relevant to the asst. year 2002-03 amount of ₹ 4,30,00,000/- has to be brought to tax for the asst. year 2002- 03. The consideration shown in the sale deed is ₹ 4,30,00,000/- as against ₹ 51,35,000/- claimed by the assessee. 6. For Asst. year 2000-01, Ld. CIT(A) was of the opinion that AO had worked out the capital gains based on sec.53A of the TP Act and the amount of capital gains arising out of the initial consideration of ₹ 62 lakhs received was assessable in that year. For Asst. year 2002-03 CIT(A) was of the opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Ltd. had taken over possession of the property after paying an advance of ₹ 50 lakhs. Ld. counsel also took us through paper book page 46, which is a copy of assessment order under sec. 143(3) r.w. sec. 147 of the Act for A.Y 1995- 96. According to him, assessment for that asst. year was reopened for a reason that assessee had not admitted the lease rentals from the subject premises, though such lease rentals were shown in the earlier asst. years. Ld. counsel was at pains to point out that AO had accepted this position while completing the assessment under sec. 143(3), after recognizing that possession of the subject property was already with M/s Devaki Hospitals and sale in pursuance of agreement for sale dated 27-08-1992 (paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed property to M/s Devaki Hospital Ltd. and a copy of the lease deed is placed at pages 10 to 16 of the paper book. Schedule B of this agreement clearly mentions that Door No.149 Luz Church Road, Mylapore, Chennai as being used to run a hospital known as Devaki Hospital and that such hospital was being run by M/s ECM. The agreement also mentions (PB page 12) that M/s Devaki Hospital Ltd. was to take over Devaki Hospital from M/s ECM. From this lease deed dated 27-03-1991, the only possible conclusion that can be drawn is that M/s Devaki Hospital Ltd. was in possession of the subject property. While it was in possession as aforesaid, an agreement of sale was executed on 27-08-1992 by the assessee alongwith M/s ECM, in favour of M/s. Devaki H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs out of total agreed consideration of ₹ 62 lakhs was received, ld. DR was unable to show us any statement given by the assessee in this regard. In our opinion, the AO had simply implied that possession would have been handed over only on 10-12-1999 when the balance sale consideration of ₹ 12 lakhs was received by the assessee. On the other hand, the fact of the matter was that M/s Devaki Hospital Ltd. was already in possession of the subject premises when the sale agreement dated 27-8-1992 was entered into and substantial part of the consideration had passed hands. Thus, in our opinion, the transfer, as contemplated in Sec. 2(47) had happened, in previous year ended 31-03- 1993 relevant to A.Y 1993-94 and not in A.Y 2000-01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gains of the previous year in which such compensation or part thereof, or such consideration or part thereof, was first received; and (b) the amount by which the compensation or consideration is enhanced or further enhanced by the court, Tribunal or other authority shall be deemed to be income chargeable under the head capital gains of the previous year in which such amount is received by the assessee. (c) Where in the assessment for any year, the capital; gain arising from the transfer of a capital asset is computed by taking the compensation consideration referred to in clause. (a), Or, .as the case may be,. enhanced compensation or consideration is reduced by any court, Tribunal or other authority, such assessed capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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