TMI Blog2020 (12) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... has offered the above capital gain in assessment year 2009 10, which is the property for the assessment of the transfer of capital asset and consequent capital gain in view of the decision of the honourable Supreme Court as stated above. - ITA. No.1745/Del/2017 - - - Dated:- 28-12-2020 - Shri H.S. Sidhu, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Shri Ved Jain, Adv.; And Shri Akshit Jain, C.A.; For the Revenue : Ms. Aman Preet, Sr. DR ORDER PER PRASHANT MAHARISHI A M 1. This appeal is filed by the assessee against the order of the ld. CIT (Appeals)-32, New Delhi, for the Assessment Year 2007-08 dated 09th December, 2016. 2. The assessee has raised following grounds of appeal:- i. on the facts and circumstances of the case, the order passed by the learned CIT (appeals) is bad both in law and on facts. ii. On the facts and circumstances of the case, the calculation of indexed cost, made by the learned CIT A amounting to ₹ 610,879 by the CIT (A) against the indexed cost of acquisition of ₹ 5,682,912/ claimed by the assessee, is untenable in the eyes of the law iii. on the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal. The learned authorised representative repeated the same facts and stated that the delay may be condoned it there is no modify the intention in holding filing the appeal delayed by 40 days. 4. The learned departmental representative vehemently objected to the delay in filing of the appeal and stated that the cause shown by the assessee is not sufficient. 5. We have carefully considered the rival contention and find that the assessee has filed this appeal delayed by 40 days and the reasons mentioned therein is that the assessee was suffering from cancer and therefore, she was forced to attend her health and in that process this appeal was delayed. We do not find any reason to not to condone the delay for the reason shown by the assessee according to us they are sufficient and proper. Therefore we condone the delay in filing of the appeal. 6. Brief facts of the case shows that assessee is an Individual. The case of the assessee is re-opened under Section 147 of the Income Tax Act, 1961 (the Act) by issuing notice under Section 148 on 12th March, 2014 as the assessee has not filed the return of income. During the course of search and seizure on Salcon Group of cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital gain was worked out by considering the total fair market value of the consideration received at ₹ 5.33 crores. After granting indexation of the cost the capital gain chargeable in the hands of the assessee was considered at ₹ 5,14,05,696/-. Total income of the assessee was assessed at ₹ 5,14,84,206/- by the order under Section 143(3) read with Section 148 of the Act. 7. The assessee also contested the above order before the ld. CIT (Appeals). Before the ld. CIT (Appeals) assessee also submitted that during the assessment proceedings the assessee has submitted that the relevant date of transfer of the property is 19.08.2008 that is the date on which the property was constructed and possession of the above property was handed over to the assessee. It was further stated that assessee has submitted revised return for Assessment Year 2009-10 where the sale consideration is taken by assessee at ₹ 1.10 crores and offered the capital gain. The assessee also submitted that the transfer of the property is in Assessment Year 2009-10 and not in Assessment Year 2007-08. Assessee further stated that on computation of the capital gain made by the ld. Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to para No. 5.8.1 of the order and stated that the ld. CIT (Appeals) is also incorrect that the date on which construction was completed and possession was given to the assessee which is 19.08.2005, but in fact it is a typographical error and the correct date is 19.08.2008. Based on this he relied upon the decision of the honourable Supreme Court in the case of Balbir Singh Maini and submitted that the facts of this case are identical to the facts of the case before Hon ble Supreme Court. He reiterated that collaboration agreement is unregistered and the date of handing over of the possession of the property is 19.08.2008. Therefore, the transfer of capital asset took place in Assessment Year 2009-10 and not in Assessment Year 2007-08. Thus, he stated that the ld. CIT (Appeals) is at error in holding that the capital gain is chargeable to tax in Assessment Year 2007-08. 12. He further submitted that the assessee has correctly offered long term capital gain in Assessment Year 2009-10. He took us to page No. 39 of the paper book to show the computation of long term capital gain offered by the assessee. He submitted that there is no difference in the sale consideration, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession is to refer to the ingredients of applicability of Section 53A to the contracts mentioned therein. It is only where the contract contains all the six features mentioned in Shrimant Shamrao Suryavanshi ( supra ), that the Section applies, and this is what is meant by the expression of the nature referred to in Section 53A . This expression cannot be stretched to refer to an amendment that was made years later in 2001, so as to then say that though registration of a contract is required by the Amendment Act of 2001, yet the aforesaid expression of the nature referred to in Section 53A would somehow refer only to the nature of contract mentioned in Section 53A, which would then in turn not require registration. As has been stated above, there is no contract in the eye of law in force under Section 53A after 2001 unless the said contract is registered. This being the case, and it being clear that the said JDA was never registered, since the JDA has no efficacy in the eye of law, obviously no transfer can be said to have taken place under the aforesaid document. Since we are deciding this case on this legal ground, it is unnecessary for us to go into the other questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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