TMI Blog2017 (1) TMI 1765X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed upon to be sold at the relevant time. Further the sale deed contained certain obligations on the part of the assessee and the co-owners to be fulfilled and the assessee has received only 50% of the consideration during the impugned assessment year. We find from the letter addressed by Mr. Atul Chordia, Director of Wagholi Properties Pvt. Ltd.,in response to notice u/s.226(3) for recovery of dues in case of the assessee, he has categorically stated that the balance amount of ₹ 17.01 crores is payable only after fulfillment of certain conditions mentioned in the agreement. In our opinion, the contents of the agreement has to be read as a whole and the revenue cannot re-write the agreement. As in the instant case the right to receive the consideration is on fulfillment of certain obligations. Further, the assessee has offered the balance amount to tax in A.Y. 2014-15 as business income - we are of the considered opinion that assessee is liable to capital gain tax only on 50% of the consideration that has been received during the year. We, therefore, set aside the order of the CIT(A) and allow the grounds raised by the assessee. - ITA No. 1310/PUN/2013, ITA No. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation given by the assessee. He observed that assessee has not maintained separate books of account for its business which is yielding exempt income and for its business which is yielding taxable income. Moreover, the assessee is having a common pool of funds for its entire business operations including the business which is yielding exempt income. Therefore, the expenditure attributable to earning of exempt income can only be reasonably determined by invoking Rule 8D. He observed that the assessee has considered interest of only ₹ 3,16,383/- while computing the disallowance as per Rule 8D. However, other than interest of ₹ 3,16,383/- separately claimed in the profit and loss account, an amount of ₹ 2,26,91,805/- has also been claimed and clubbed under the head purchases. He, therefore, considered for disallowance u/s.14A the interest of ₹ 2,30,08,188/-, i.e. ₹ 2,26,91,805/ + ₹ 3,16,383. Applying the provisions of section 14A r.w. Rule 8D the Assessing Officer disallowed an amount of ₹ 68,86,009/- and added the same to the total income of the assessee. 5. Before CIT(A) it was submitted that as against incurring of total expenditu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st cost of ₹ 2,30,68,188/- has been capitalized and added to the cost of the purchases he observed that such capitalized interest has direct nexus with the land purchased by the assessee and therefore the said interest could not form part of the interest cost for working out the disallowance under Rule 8D as the same has not been charged to the profit and loss account. He therefore held that the AOs action in including the aforesaid interest related to the capitalized interest is not correct in the given set of facts and circumstances of the case. Relying on various decision and applying provision of Rule 8D the Ld.CIT(A) restricted the disallowance u/s.14A r.w. Rule 8D at ₹ 10,53,815/- and thereby gave relief of ₹ 58,32,194/- to the assessee. 11. Aggrieved with such order of the CIT(A) in giving part relief the assessee as well as the revenue are in appeal before the Tribunal. 12. The Ld. Counsel for the assessee at the outset submitted that the assessee s own capital is more than the investment in the partnership firm as well as the investment in shares of different companies. Referring to page 24 of the paper book he drew the attention of the Bench to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capitalized interest added to the cost of land of ₹ 2,26,91,805/- in working out the disallowance u/4 8D. The aforesaid capitalized interest has a direct nexus with the land purchased by the appellant and, therefore, the said interest could not form part of the interest cost for working out the disallowance u/r 8D as the same has not been charged to the profit and loss account and only the interest amounting to ₹ 3,16,383/- debited to the profit and loss account could be considered for working out the disallowance. The Assessing Officer s action in including the aforesaid interest related to the capitalized interest, in my considered opinion is not correct in the given set of fact and circumstances of the case. Thus the definition of variable as embedded in formula u/r 8D(2)(ii) specifically excludes interest expenditure directly related to exempt income and it does not include interest expenditure directly related to taxable income. Thus the working of the disallowance u/s. 14A r.w.r. 8D is as under: Working as per Rule 8D (i) Sub-rule 1(ii) 3,16,383 x 19,44,99,752 75,67,56,500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. Particulars 01-04-2008 31-03-2009 1 Investment in partnership firm 19,07,64,368/- 19,82,35,136/- 2 Capital 26,72,36,768/- 37,43,92,814/- 18. From the copy of the balance sheet filed along with the schedules, copy of which is placed at pages 131 to 148 of the paper boom, we find the investment in shares has been shown at ₹ 4,55,134/- (page 143 of paper book). Thus, the total investment in the partnership firm as well as the shares of companies, the income of which is exempt, is much less than the own capital and free reserves of the assessee. The different Benches of the Tribunal are taking the consistent view, following the decisions of Hon ble Bombay High Court in the case of CIT Vs. Reliance Utilities and Power Ltd. reported in 313 ITR 340, and in the case of HDFC Ltd. Vs. DCIT reported in 383 ITR 529 and the decision of Hon ble Punjab Haryana High Court in the case of CIT Vs. Max India Ltd. (No.2) reported in 388 ITR 81, that as long as assessee was in possession of intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f various obligation mentioning clause no.iv of the sale deed dated 2nd May 2008. (b) That the capital gain arising from the transfer of the land @ ₹ 125.50 lacs per acre is properly declared by the appellant and the balance 50% consideration was towards the performance of various obligation in terms of clause no.iv of the sale deed dated 2nd May 2008. (c) That the consideration of ₹ 251/- lacs per acre was much more than the prevailing market value of the land and the said amount embedded the consideration of performance of various obligations. The appellant hereby prays that the addition of ₹ 12,15,54,375/- made on account of long capital gain may please be deleted. 21. Facts of the case, in brief, are that during the assessment proceedings the Assessing Officer found that the assessee along with other co-owners sold agricultural land admeasuring 70 acres situated at Gat No. 1277 and 1278 at Village Wagholi, District Pune to M/s. Wagholi Properties Pvt. Ltd by a registered sale deed dated 2.5.2008. The Assessing Officer further noticed that as per clause 3 of the sale deed the consideration payable in respect of the land was ₹ 2,51,00,000/- pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso been paid and that the value of the entire transaction of 70 acres of land at Wagholi had been confirmed in the Index- II at ₹ 1,75,80,04,250/-. He observed that the contention of the assessee of the land sale transaction having two limbs viz. transfer of capital asset and performance of several obligations did not have any connection between the two so far as the calculation of the amount for the total sales consideration was concerned. The Assessing Officer specifically noted that the rate per sq. mtr and per acre was clearly mentioned in the agreement and there was no value ascribed to the obligation to be fulfilled by the assessee and other vendors and, therefore, the entire transaction could be divided into 2 parts viz. i) Sale of 70 acres of land ii) Procuring 38 acres of land and fulfilling certain obligations. 24. The Assessing Officer thus held that the sale of 70 acres of land at (i) above was clearly taxable u/s 2(24) (v) of the Act and for the balance 38 acres at (ii) above, the assessee and other vendors were entitled to receive the same amount of consideration i.e. 2,51,00,000/- per acre and the cost and expenses to be borne by the assessee along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 and the stamp duty was paid and the possession over the property was also passed on to the purchaser, therefore, the entire consideration has to be considered for the purpose of computing the capital gains. The Assessing Officer accordingly adopted the assessee's share at ₹ 24,31,08,750/- as against ₹ 12,15,54,375/- adopted by the assessee for the purpose of computing capital gain. 25. Before CIT(A) the assessee reiterated the same submissions as made before the Assessing Officer during the assessment proceedings. It was argued that the transaction has two limbs, namely, transfer of the capital asset and performance of various obligations. The attention of Ld.CIT(A) was drawn towards clause No. (iv) of the sale deed. It was submitted that accrual of income means the assessee must have right to receive the income and since the assessee in the instant case has neither received the income nor the income has accrued, therefore, notional income cannot be brought to tax. It was contended that the capital gain cannot be taxed if there is no receipt of consideration or the consideration has not accrued to the assessee. It was submitted that in a situation where the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeability of income to 'capital gains' is with reference to the full value of consideration received or accruing as a result of the transfer of capital asset deducting the expenditure incurred therein. The charge of capital gains arises only when there has been a duly executed and registered deed of sale. The year of assessment would be the year corresponding to the previous year of the assessee in which the sale took place. This is for the reason that Sec. 45 enacts that the capital gains shall by fiction be deemed to be the income of the previous year in which the transfer took place. Since this is statutory fiction, the actual year in which the sale price was received, whether it was one year or three years or five years etc, previous to the previous year of transfer is beside the point. The entirety of the sum or sums received in any earlier year or years would be regarded as the capital gain arising in the previous year of transfer where the payment of the sale price is postponed to a future date and the deed of transfer vest the title in the transferee on the execution of the documents, even so, the above fiction operates. In the words of Sec. 45, the capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied for income from capital gains. In the present case, however, the consideration is determinate as per the fact on record as the entire sale consideration fixed for the land has been determined in the sale deed and the buyer M/s Wagholi Properties Pvt. Ltd has paid the entire registration cost on the total sales consideration of ₹ 7,03,20,170/- and further the sale deed has been also registered on 2-5-2008. Thus the fact on record as brought out, clearly indicate the transfer u/s 2(47) of the property or asset u/s 2(14) liable for capital gains on the full consideration and not in part as contended by the appellant. The Calcutta High court in the case of CIT Vs Bhupinder Singh Atwal (1983) 140 ITR 928 (Cal) held that since this section creates an item of 'artificial income' its provisions should be strictly construed. The conditions as envisaged in Sec. 45 are satisfied in the present case so as to attract the charge of tax on the full value consideration. The appellant's reliance thus placed on the case of E.O. Sassoon Co Ltd Vs CIT 26 ITR 27 (SC) was in the context of transfer of an income bearing asset the expectancy of earning income there from at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Therefore, profits would have arisen to the assessee in the year in which transfer took place even though the price was paid in a subsequent year. 4.5.2 In ICI India Vs DCIT (2002) 80 ITD 58 (Cal) (Trib) there was a single agreement and by a single conveyance deed property was transferred by the assessee. The entire transfer process was one and indivisible it was, therefore, not possible to comprehend that a part of property was transferred under deeming provisions of Sec. 2(47)(vi) in one year and balance portion under actual provision of sec. 45 in later year. Although the MOU provided only for allowing a license to the purchaser to use the property, this should be considered as sufficient situation involving actual hand over of the possession of the property in respect of such parts thereof which had been stipulated in the original agreement. Hence, the present case could come within the ambit of 'Part performance' as mentioned in see 53A of the Transfer of Property Act, and consequently under the purview of see 2(47)(v) of the Act. The court thus upheld the 'transfer' by virtue of the extended definition of 'transfer'. 4.5.3 In the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of CIT Vs Smt. Nilofer I. Singh (2009) 309 ITR 233 (Del), it was held that the expression 'full value of consideration' that is used in section 48 does not have any reference to the market value but only to the consideration referred to in the sale deed as the sale price of the asset which have been transferred. The issue of 'full value of consideration' also came up before the Madras High Court in the case of Venkatesh Vs CIT (2000) 243 ITR 367 (Mad), where the assessee entered into an agreement to sell the shares held by him in two companies for the above market price. The Assessing officer computed the difference between the value of sale price and the cost of acquisition as long-term capital gains. The assessee submitted that the sale price did not wholly pertain to value of the shares held by him but part of the amount was received as consideration and represented transfer of controlling interest in companies. It was held that the controlling interest is an incidence arising from holding of a particular number of shares in a company and cannot be separately acquired or transferred, therefore, it is not a separate capital asset u/s 2(14). Therefore, the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of land is not the issue in this ground of appeal raised by the appellant. 4.7 In view of the above facts, the action of the Assessing officer in adopting the full value of consideration for computing the capital gains of ₹ 24,31,08,750/- as against ₹ 12,15,54,375/- shown by the appellant is justified and, therefore, the same is upheld and the grounds of appeal No 2 3 raised by the appellant are liable to be dismissed. 27. Aggrieved with such order of the CIT(A) the assessee is in appeal before the Tribunal. 28. The Ld. Counsel for the assessee referring to the copy of the sale deed with M/s. Wagholi Properties Pvt. Ltd., a copy of which is placed at pages 50 to 81 of the paper book, drew the attention of the Bench to the various clauses of the sale deed. Referring to page 11 of the sale deed the Ld. Counsel for the assessee drew the attention of the Bench to clause (iii) of the sale deed which specifies the obligation of the assessee. As per the said clause (iii) the vendors and consenting parties have agreed to get total contiguous land admeasuring 108 acres (approximately) of Mouje Wagholi, Taluka Haveli, Dist. Pune to be transferred in favour of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible subject to conditions that 50% of the gross area of the project shall be kept open while the project of Special Township shall be executed on the remaining 50% land with gross built up area /FSI of 0.50 worked out on the entire gross area of the project. Further, while developing such projects, it would be obligatory on the part of the developer to provide and develop all the infrastructure facilities including sites required for public purposes as per the prescribed planning norms. As regards 50% of land which is required to be kept open, the same shall be made free of encumbrances and no development except town level open amenities shall be permissible thereon. 30. Referring to the area requirement for substantial township for area under Pune Regional plan the Ld. Counsel for the assessee drew the attention of the Bench to the following clause of the said act (page 88 of the paper book). 1.1 AREA REQUIREMENT : Any suitable area having sufficiently wide means of access (not less than 18 mt wide) can be identified for the purpose of development as Special Township . The area notified under the Special Township shall be one continuous unbroken and uninterrupted and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the paper book, the Ld. Counsel for the assessee submitted that they have also agreed to hand over the portion of land admeasuring 5260.94 sq.mtrs out of their land holding of 64314.66 sq.mtrs. to the concerned Municipal authorities for getting the road executed. Referring to the letter written by Marvel Bharucha Realtors dated 11-12-2015, copy of which is placed at page 7 of the paper book, he submitted that they have also agreed to hand over the area admeasuring 453.64 sq.mtrs out of their land holding of 23150 sq.mtrs. to the concerned Municipal authorities for execution of the said road. Referring to the letter addressed by Mr. Bharat M. Parwani (Manager of HUF), Mr. Chandan M. Parwani (Manager of HUF) and Mrs. Indira M. Parwani vide common letter dated 15-12-2015, copy of which is placed at page 8 of the paper book, he submitted that they have also agreed to offer a part of their land admeasuring 00.40 Ares in favour of Wagholi Properties for facilitating their township project. Referring to page 9 of the paper book he submitted that the mutation of the land was done on 01-04-2013. He submitted that the assessee has completed his part of obligation in F.Y. 2013-13 relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability in praesenti in respect of the additional amount of compensation claimed by the owner of the land. He submitted that right to receive in the instant case is disputed. Therefore, the case of the assessee squarely falls with the case decided by the Hon ble Supreme Court in the case of Hindustan Housing and Land Development Corporation (Supra). 36. So far as the various decisions relied on by the CIT(A) are concerned he submitted that all those decisions are distinguishable and not applicable to the facts of the present case. In all those cases there was right to receive but they were deferring the receipt of the payment. However, in the instant case, the right to receive is contingent upon fulfilment of certain conditions. He accordingly submitted that the order of the CIT(A) be set aside and the grounds raised by the assessee be allowed. He also relied on the following decisions : 1. Aziende Colori Nazionali Affini Vs. CIT reported in 110 ITR 0145 2. CIT Vs. Citibank N.A. reported in 261 ITR 0570 3. CIT Vs. Kolhia Hirdagarh Co. Ltd. reported in 17 ITR 0545 37. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d declared the extent of the amount received during the year since it could not have waited for 5 years to get his money for small tax savings. 40. So far as the submission of the Ld. Departmental Representative that the as per the clause there is absolute transfer and there is peaceful and vacant possession is concerned he submitted that it is the usual language written in the sale deeds. No time limit is required and it is contingent upon fulfilment of the obligations. So far as the decision relied on by the Ld. Departmental Representative in the case of K.P. Varghese reported in 131 ITR 597 is concerned he submitted that the same is not applicable to the facts of the present case and is distinguishable since in the instant case the right to receive has not been postponed. It is not due, therefore, the income does not accrue. 41. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the assessee during the year under consideration has sold a plot of land admeasuring about 70 Acres to Wagholi properties Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Special Township, project in accordance with the Regulations framed by the Development of Special Township by the Government under the provisions of the Maharashtra Regional and Town Planning Act, 1966 for which purpose the Purchaser are required to acquire land admeasuring a minimum area of 100 acres. The Vendors and Consenting parties have agreed to get total contiguous land admeasuring 108 Acres (approximately) of Mouje Waholi, Taluka Haveli District Pune transferred in favour of the Purchaser at and for the consideration calculated at the rate of ₹ 2,51,00,000/- per acre (₹ 6275/p- per sq.mt.) of land available at site on measurement. As part of the said transaction and relying upon the assurance of the Vendors that they shall get conveyed remaining land out of the said total contiguous area of 108 Acres (approximately), the Purchaser has accordingly agreed to purchase the said property more particularly described in Schedule V written hereunder and admeasuring 2,80,160 sq.mtrs., at and for the total consideration of ₹ 175,80,04,250/- (Rupees one hundred and seventy five crore eighty lakh four thousand two hundred and fifty only). Out of the said total con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 998 removed. v. As the Vendors and the Consenting Parties require time to fulfil the said obligations, it is agreed by and between the parties that the Purchaser shall pay 50 (fifty) per cent of the total consideration as more specifically described in Schedule VI hereunder in respect of the said property at the time of execution of this Sale Deed and the balance 50 (fifty) per cent consideration to be paid by the Purchaser within 30 days upon the Vendors and the Consenting Parties complying in entirety their obligations as enumerated in Clause iv hereinabove. Upon receipt of balance consideration the Vendors and the Consenting Parties shall simultaneously, execute a proper receipt acknowledging the entire price and consideration. Upon the Vendors and Consenting Parties successfully completing the execution and registration of the Sale Deeds with respect to 108 acres in favour of the Purchaser herein, the Purchaser shall deliver to the Vendor a Bank Guarantee for the balance 50% consideration, upon compliance of the obligations in entirety as enumerated in Clause IV hereinabove by the Vendors and Consenting Parties. NOW THEREFORE THIS DEED WITNESSES that in consideration of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er share out of ₹ 2.70 crores received as initial consideration to tax in her return of income for the said assessment year. The CIT(A) further observed that the agreement dated 25-01-2006 also provided for deferred consideration which was capped at ₹ 20 crores which had to be paid in terms of formula prescribed in the agreement dated 25-01-2006. Working out of the formula led to a situation where no amount on account of deferred consideration for the sale of shares was receivable by the respondent assessee in the immediate succeeding assessment year, i.e. A.Y. 2007-08. The CIT(A) concluded that no amount of the deferred consideration can be brought to tax in the said assessment year either on receipt basis or on accrual basis. Thus, he deleted the addition. The Revenue preferred an appeal before the Tribunal. The Tribunal upheld the action of the Assessing Officer holding that as there is no certainty of receiving any amount as deferred consideration, the bringing to tax the maximum amount of ₹ 20 crores provided as a cap on the consideration in the agreement dated 25-01-2006 is not tenable. The Tribunal further held that what has to be brought to tax is the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome accrues, the assessee gets vested right to claim that amount, even though not immediately. In fact the application of formula in the agreement dated 25th January, 2006 itself makes the amount which is receivable as deferred consideration contingent upon the profits of M/s.Unisol and not an ascertained amount. Thus in the subject assessment year no right to claim any particular amount gets vested in the hands of the respondent-assessee. Therefore, entire amount of ₹ 20 crores which is sought to be taxed by the Assessing Officer is not the amount which has accrued to the respondent-assessee. The test of accrual is whether there is a right to receive the amount though later and such right is legally enforceable. In fact as observed by the Supreme Court in E.D. Sassoon Co. Ltd. Vs. CIT (1954) 26 ITR 27 It is clear therefore that income may accrue to an assesee without the actual receipt of the same. If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not accrued during the year. As pointed out above, accrual would be a right to receive the amount and the respondentassessee alongwith its co-owners have not under the agreement dated 25th January, 2006 obtained a right to receive ₹ 20 crores or any specified part thereof in the subject assessment year. 10. In the above view there could be no occasion to bring the maximum amount of ₹ 20 crores, which could be received as deferred consideration to tax in the subject assessment year as it had not accrued to the respondent-assessee. 11. We find that both the Commissioner of Income-Tax (Appeals) and the Tribunal have in view of the clear clauses of agreement dated 25th January, 2006 have in the facts of the present case correctly held that the respondent-assessee and the co-owners of the shares did not have a right to receive ₹ 20 crores in the subject assessment year. 12. In the above view, in the present facts the question of law as framed does not give rise to any substantial question of law. Accordingly, appeal is dismissed. No order as to costs. 44. We find the Hon ble Supreme Court in the case of CIT Vs. Hindustan Housing and Land Development Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mad). That case, however, proceeded on the basis that excise duty was payable and its quantification alone remained to be decided in the appeal. We may point out that the Andhra Pradesh High Court, dealing with the taxability of compensation received under the Land Acquisition Act in Khan Bahadur Ahmed Alladin Sons v. CIT [1969] 74 ITR 651 (AP), held that when land was taken over by the Government, the right of the owner to compensation was an inchoate right until the compensation had been actually determined and had become payable. It was observed that the enhanced compensation accrued to an assessee only when the court accepted the claim and not when the land was taken over by the Government. Examining the question whether income could be said to have accrued to the assessee on the date when possession of the land was taken by the Government for the purpose of assessment to tax in the year of assessment, P. Jaganmohan Reddy C.J., speaking for the court, said (pp. 657, 658); If the actual amount of compensation has not been fixed, no income could accrue to him. It cannot be contended that the mere claim by the assessee, after taking of possession, at a particular rate or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arassment. To hold otherwise would be contrary to the provisions of law. The legal position was explained in further detail by the Gujarat High Court in Topandas Kundanmal v. CIT [1978] 114 ITR 237. The High Court was called upon to decide whether the right to receive the enhanced compensation under the Land Acquisition Act accrued or arose to the assessee when be sought a reference under section 18 of the Act or when the award was made by the Civil judge although an appeal was pending against that award. The learned judges referred to the nature of an award made by the Collector, and adverting to the opinion of this court in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer [1962] 1 SCR 676 ; AIR 1961 SC 1500, that the award made by the Collector was merely an offer or tender of the compensation determined by the Col lector to the owner of the property on the acquisition, the High Court observed (p. 247 of 114 ITR): ........... the legal position which emerges is that there is no liability in praesenti to pay an enhanced compensation till it is judicially determined by the final court since the entire question, namely, whether the offer made by the Land Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace. Admittedly, from the copy of the sale deed the assessee and the co-owners were having only 70 acres of contiguous land and they had agreed to arrange the balance land and also to deliver a legal and practical 24 metres access road to the contiguous 108 acres of the land. Since vendors and the consenting parties require time to fulfil the various obligations contained in the sale deed it was agreed by and between the parties that the purchaser shall pay 50% of the total consideration at the time of execution of the sale deed and the balance 50% consideration to be paid by the purchaser within 30 days upon the vendors and the consenting parties complying in entirety their obligation as enumerated. 46. It has been held in various decisions that the terms and conditions of an agreement has to be read as a whole and it cannot be read in piecemeal. The Hon ble Supreme Court in the case of Mangalore Ganesh Beedi Works Vs. CIT reported in 378 ITR 640 (SC) held that the revenue cannot re-write the agreement for bringing the entire consideration to tax. The relevant observation of the Hon ble Supreme Court reads as under : 33. In this context, it may also be mentioned that by den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the above discussion and respectfully following the decisions cited above, we are of the considered opinion that assessee is liable to capital gain tax only on 50% of the consideration that has been received during the year. We, therefore, set aside the order of the CIT(A) and allow the grounds raised by the assessee. 48. The Ld. Counsel for the assessee at the time of hearing did not press ground of appeal No.4 for which the Ld. Departmental Representative has no objection. Accordingly, this ground by the assessee is dismissed as not pressed . ITA No. 748/PUN/2013 - Deepak Laxman Kudale ITA No. 749/PUN/2013 - Neeraj Horticulturists Pvt. Ltd. ITA No. 933/PUN/2013 - Nupoora Developers Pvt. Ltd. 49. Identical grounds have been raised by the above assessees. For the sake of convenience, we reproduce the grounds of appeal raised in ITA No.748/PUN/2013 : 1. On the facts and in the circumstances of the case and in law, the learned assessing officer erred making addition of capital gain of ₹ 9,90,20,875/- in respect of transfer of plot of land situated at Gat No. 1277 1278, Village Wagholi, Dist: Pune without appreciating the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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