TMI Blog2022 (7) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... y the terms of the Banakhat entered into in the year 2000 and operated independently of it. Fourth, the property remained in the name of Mr. Ganpathbai Patel till transfer took place pursuant to registered sale deed dated 28.07.2011. Therefore, in our considered view, in the light of above Rulings as applied to the assessee s set of facts, the assessee (as legal heir of the said property) is liable to capital gains tax during the year under consideration. Accordingly, we are of the considered view that Ld. CIT(Appeals) has not erred in law and in facts in holding that the assessee is liable to pay capital gains tax on her 1/4th share in the property during the year under consideration. In the result, the order of ld. CIT(A) is upheld. - ITA No. 2383/Ahd/2016 And ITA No. 2485/Ahd/2016 - - - Dated:- 20-7-2022 - Shri P.M. Jagtap, Vice President And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri M.K. Patel, A.R. For the Revenue : Shri R.R. Makwana, Sr. D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- These two appeals, one filed by the assessee being ITA No.2383/Ahd/2016 and other filed by the Revenue being ITA No. 2485/Ahd/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished any information in respect of other three co-owners, the remaining profit of other three persons of ₹ 4,32,12,600/- was assessed in the hands of the assessee on protective basis. In appeal, Ld. CIT(Appeals) observed that Mr Ganapatbhai Patel (father of the assessee), was the original owner of the agricultural land who entered into a sale transaction through Banakhat (Agreement to Sell) dated 15-07-2000 with the Shri Hamad Ali. Further, Mr Ganapatbhai Patel also received consideration amounting to Rs. 53,26,000/- before his death on 19-10-2010. Shri Hamad Alisubsequently agreed to sell the property to Mr Gopal Sutaria/ Mr. Gopesh Sutaria. The final registered sale deed was executed on 29-07-2011 in assessment year 2012-13 wherein the legal heirs of Mr Ganapatbhai Patel(the assessee was one of the legal heirs) has signed the sale deed as the legal heirs/ successors of Mr Ganapatbhai Patel.Before Ld. CIT(Appeals), the assessee argued that through the Banakhat dated 15-07-2000, the father of the assessee had received the sale proceeds during his lifetime, and at the time of registration, the assessee (along-with other co-owners) only completed the legal formalities and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e i.e. in Mrs Arunaben Patel s case for the impugned assessment year (notably it is the same order against which appeal has been filed before us). Accordingly, in light of the judgement referred to above, since the facts in both the cases are identical, we respectfully rely on the above judgement to hold that the assessee is liable to capital gains tax for her 1/4th share in the property in the year when the registered sale deed was executed on 28-07-2011. For the sake of reference, the observations made by ITAT are reproduced below: 8. As regards the assessee s appeal, the main contention raised by the learned Counsel for the assessee is that no consideration whatsoever was received by the assessee on transfer of her share in the immovable property in question. He has contended that Shri Ganpatbhai K. Patel, father of the assessee, was the original owner of the property and he had already entered into a sale transaction through banakhat dated 15.07.2000 with one Shri Hamad Ali before his death on 19.10.2010. He submitted that Shri HamadAli further agreed to sell the property to Shri Gopal G. Sutaria / Gopesh G. Sutaria; and, the assessee and other co-owners being legal heir o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is concerned, it is observed that similar issue was involved in the case of other co-owner Smt Arunaben K. Patel and the learned CIT(A) vide appellate order dated 20.07.2016 decided the same vide paragraph Nos. 5.2 and 5.3 as under:- 5.2 As it is decided that appellant in legally taxable for 1/4th of the sale proceeds, the question now to be decided as to what was the total sale proceeds received by the all heirs of Shri Ganpatbhai K. Patel (deceased). The factual position about the total sale consideration as submitted by appellant is as under:- Sr. No. Amount Particulars and name of the party receiving the consideration. 1 3,26,000 Received in cash by Father of party of Second Part, paid by party of the Third part at the time of Banakhat 2 50,00,000 Received in cash by Father of party of Second Part, paid by party of the Third part at the time of Banakhat 3 1,00,000 Received in cash at the time of Agreement by party of the Third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence recourse to the provisions of Sec.50C by the AO is found to be correct. As the appellant is one of the four heirs of Ganpatbhai K. Patel, it is decided that the appellant has earned taxable Long Term Capital Gain of Rs.29,73,200/- (1,18,92,800 / 4) and the same is confirmed. The appellant gets relief of Rs.5,46,43,600/-. The ground No.2/additional ground is partly allowed. 10. It is observed that even though the learned CIT(A) in her impugned order passed in assessee s case has duly taken note of the order passed in the case of Smt. Arunaben K. Patel dated 20.07.2016 to uphold the order of the Assessing Officer in assessing the capital gain arising on transfer of her share in the property on substantive basis, she completely overlooked quantification of capital gain as made by her counterpart in the case of Smt. Arunaben K. Patel. After going through the relevant observations/findings recorded by the learned CIT(A) in the case of Smt. Arunaben K. Patel in paragraph Nos. 5.2 and 5.3 of the appellate order dated 20.07.2016, we find that the computation of Long Term Capital Gain arising from the transfer of property by the assessee and other co-owners has been done correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer opined that there was transfer within meaning of section 2(47). The Tribunal, however noted that possession delivered, if at all, was as a licencee for development of property and not in capacity of a transferee. The Tribunal further opined that in absence of registration of JDA, agreement did not fall under section 53A of Transfer of PropertyAct, 1882 and, consequently, section 2(47)(v) did not apply . The High Court upheld order passed by Tribunal, which was also confirmed by the Hon'ble Supreme Court while dismissing the SLP filed against the aforesaid order. Again, the Hon'ble Supreme Court in the case of Sadiq Sheikh[2019] 106 taxmann.com 334 (SC) held that where High Court upheld Tribunal's order holding that provisions of section 2(47) would not apply to transfer of flats as during relevant year merely an agreement to sell flats which were yet to be constructed, had been executed and, moreover, possession had not been delivered, SLP filed against said order was to be dismissed. In the recent case of Shelter Project Ltd.[2022] 137 taxmann.com 192 (Calcutta) , the Hon'ble Calcutta High Court held that where assessee owned a property and during assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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