TMI Blog2022 (6) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional ground of appeal so raised before us and to consider the order of the District Judge, in the interest of substantial justice, and the ground of appeal is set-aside to the file of the Assessing officer to decide the same taking into consideration the order of District Judge dated 29.02.2020 as well as proceedings before the Collector, Chandapur and any other documentation/information as so required after providing reasonable opportunity to the assessee. Other contentions raised by the assessee in support of other grounds of appeal are left open and not adjudicated upon. Since we have set-aside the aforesaid ground of appeal, other grounds of appeal are also set-aside to the file of the AO to examine the same afresh as per law taking after providing reasonable opportunity to the assessee and the assessee is at liberty to raise the contentions as so raised before us and as so advised. Appeal of the assessee is allowed for statistical purposes. - ITA No. 102/Nag./2013 - - - Dated:- 10-6-2022 - Shri Vikram Singh Yadav, Accountant Member And Shri Yogesh Kumar U.S, Judicial Member For the Assessee : None For the Revenue : Shri G.N. Ninawe, JCIT ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is less than the value adopted by the stamp valuation authority. The provisions of section 50C are attracted in the instant case and accordingly, the assessee was issued a show cause, the submissions so filed by the assessee were considered, but not found acceptable to the Assessing Officer. As per the Assessing Officer, the land was under the possession of the assessee till the date of transfer and the assessee s submission that the possession was handover to the society in 1994 is an afterthought. It was further held by the Assessing Officer that provisions of section 53A of the transfer of the property Act are not applicable to the Income tax Act and further, the society is not a registered society to whom, the assessee has transferred the property and as such the land continues to remain under the possession of assessee himself and therefore by invoking provisions of section 50C and substituting the stamp duty valuation at ₹ 78,15,550/ as against ₹ 58,000/ . The liability under long term capital gains was determined at ₹ 76,62,583/ . 3. Being aggrieved, the assessee carried the matter in appeal before the ld.CIT(A). The ld.CIT(A) after considering the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income in response to notice issued u/s 147 of the Income Tax Act, 1961 on 22.12.2009 declaring total income of Rs.36000/- ii) The assessment for the A.Y 2005-06 was completed u/s 143(3) r.w.s 147 vide order dated 24.12.2009 assessing total income at Rs.76,98,580/- which included capital gain of Rs.76,62,583/-by invoking the provisions of section 50C. The assessment resulted in the huge demand of Rs.36,04,479/-. ii) Aggrieved by the said order the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Nagpur. The CIT(Appeals)-19, Mumbai holding the concurrent jurisdiction of CIT(A)-I, Nagpur upheld the order of the assessing officer. Hence this appeal. iv) During the previous year relevant to the assessment year 2005-06 the assessee has executed a CONVEYANCE DEED transferring an agriculture land bearing S.No.193/2, admeasuring 3H.24.R situated at Village Borda, TAH. Warora for a consideration of Rs.58000/- the market value of which was Rs.78,15,550/- for the purpose of levy of stamp duty.(Copy of the Original conveyance deed is enclosed at page No. 30 to 39 -Volume 2, English translation is enclosed at Page 3 to 5 - Volume 3 of the paper book) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .No.4to 13 of Vol 2 and English translation of the meeting are enclosed at page 7 and 8 of Volume-4 of the paper book). b) For the purchase and further development of the land bearing S.No.193/2, admeasuring 3H.24.R situated at Village Borda, TAH.Warora the society incurred expenses of Rs.64108/- upto 09.06.1991. Page No.14 is the summary of expenses. The society incurred Rs.58000/- for the BID AMOUNT for the purchase of land and further Rs.4000/- towards architects fees for planning and designing of Layout plan ,Plot measurement expenses Rs.200/- and other expenses.( The list of expenses and the vouchers are enclosed at S.No.14 to 18 of Vol-2 of the paper book and English translation of the List is enclosed at page 6 of Volume -4 of the paper book ). c) On 23.02.94, an agreement was entered into between the assessee and the society wherein at para 3 at page 1 it was clearly mentioned that the society has requested the assessee to make a bid in the auction on their behalf in respect of piece of land situated at MouzaBourda, PH No.14, KhasraNo.193/2. The amount of Bid of RS.58000/-was contributed by the members of the society which was paid on 26.11.90 and 27.02.91. At page No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety. v) The possession of the said land was transferred to the society immediately after receiving the possession by the assessee. vi) The society also carried out further expenses on the said land in respect of development of layout, architect fees etc. Page No.15 and 18 of 2nd paper book are bills and receipt raised by Architect Umate and Associates on Mahsool Karmachari Graha Nirmansahakarisanstha, Warora for Rs.4000/- in respect of planning and designing layout plan at Kh.No.193/2, MouzaBorda, Tah. Warora.This clearly indicates that the society was the owner of the said piece of land and the possession was handed over by the assesee to the society on 20.06.1991. vii) The agreement dated 23.02.94 between the assessee and the society clearly mentioned that the society has requested the assessee to make a bid in the auction on their behalf in respect of piece of land situated at MouzaBourda, PH No.14, KhasraNo.193/2. The amount of Bid of RS.58000/- was contributed by the members of the society which was paid on 26.11.90 and 27.02.91. viii) The agreement further mentions that all the 83 members will have equal rights on said land. ix) The society has also carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the said land after receiving the entire consideration from the society. And the society was exercising complete control over the property. 8. Both the A.O and the CIT(A) appeal erred in not appreciating the provisions of section 53A of the Transfer of Property Act, since the assessee has transferred the physical possession of the asset immediately after receiving the possession of the land to the society and the society has also paid the entire sale consideration of Rs.58000/- to the assessee during the F.Y 1991-92. The transfer is therefore complete u/s 2(47)(v) of the I.T. Act in the F.Y 1991-92. 9. Thus the capital gain if any to be charged in the case of the assessee on transfer of the said land should be in the F.Y 1991-92 and not F.Y.2004-05. Since the provisions of section 50C were introduced w.e.f 01.04.2003 by the Finance Act, 2002, the same are not applicable to the case of the assessee. 10. Considering the above facts and circumstances of the case the assessee humbly praysthat the order of the A.O levying the capital gains for the assessment year 2005-06 by invoking provisions of section 50C may kindly be cancelled. 11. Without prejudiced to the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer within the meaning of section 2(47) of the Income Tax Act,1961. Further the provisions of section 45 are also not applicable to the assessee since there is no legal transfer in the case of the assessee. Considering the above facts and circumstances of the case the assessee humbly prays that the capital gain levied by applying the provisions of section 50C may kindly be cancelled as the transaction is VOID AB INITIO. 6. The ld. DR is heard who has relied on the order and findings of the lower authorities. 7. We have heard the rival contentions and perused the material available on record. It is noted that the assessee has taken additional ground of appeal no. 4 stating that the provisions of section 45 of the Income Tax Act,, are not applicable since there is no capital asset as on the date of execution of conveyance deed on 31.03.2005 and there is no transfer of any capital asset since the assessee does not hold any legal title to the land as on the date of execution of conveyance deed on 31.03.2005 and the transaction is null and void on the basis of order of the District Judge, Warora dated 29.02.2020. It is claimed that order of the Collector, Chandapur dated 27.04 ..... 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