TMI Blog2022 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ,36,000/- and Rs. 1,00,000/- i.e. in aggregate Rs. 5,36,000/- by way of 2 Sale Deeds for completion of the sale of parcel of land referred to in the Agreement to Sale dated 09.07.2010. Since, the actual consideration received by the Seller / Assessee for Rs.5,36,000/- is higher than the guideline value to be adopted following the judicial pronouncements with reference to the amended provisions of Section 50C(1) which is Rs. 4,08,000/- as discussed in preceding paras, therefore the consideration for calculation of Capital Gains would be higher of these two amounts which is the actual amount received by the assessee i.e. Rs. 5,36,000/-. Deduction u/s.54F - AO has rightly and undisputedly already allowed the claim of the assessee for exemption u/s 54F of the Act for purchase of land and construction of house at Raipur for Rs.16,05,000/-, however, the only dispute was regarding the amount of consideration u/s section 50C(1) of the Act, which was taken by AO for Rs.2,16,08,500/, whereas the same should be Rs. 5,36,000/- as decided by us in terms of our observations as above. Appeal of assessee is allowed. - ITA No.218/RPR/2017 - - - Dated:- 3-8-2022 - Shri Ravish Sood, JM An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred appeal before the ld. CIT(A) and the ld. CIT(A) has dismissed the appeal of the assessee. 4. Ld. AR before us submitted that both the authorities below have not considered the fact that no capital gain arose during the year as the transfer did not take place during the year which took place on 9th July, 2010 when agreement to sale was executed and registered. Ld. AR also submitted that sale proceeds from the agricultural land has been used for a new residential house and hence eligible for the deduction u/s.54F of the Act. Ld. AR drew our attention to the page 5 of the paper book and submitted that as per agreement to sale the assessee was supposed to receive 75% of sale consideration, however 100% consideration was paid to the assessee and the assessee had also given the possession on the same date i.e. on 09.07.2010. To support the contention that 100% payment of the consideration was made the ld. AR drew our attention to page 43, which is copy of bank statement wherein as on 12.07.2010 the amount of Rs, 4,08,000/- was credited by way of clearing the cheque No.538976283 . It was also the submission of ld. AR that by virtue of agreement dated 08.07.2010 aasessee s righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of land within the meaning of 2(47) of the Act before 24.03.2012 which is the date of actual registration. However, on perusal of the documents filed before us, it is found that the agreement to sale was made on 09.07.2010 for the sale consideration of Rs.4,08,000/- and the same amount was paid through Cheque No.538976288, which was cleared on 12.07.2010. Copy of bank statement of the assessee maintained with State Bank of India, NTPC Township, Bamnipali Branch has been filed at pages 42 43 of the paper book. In view these facts, it is clear that the transfer has been taken place within the meaning of Section 2(47) of the Act. Thereafter part portion of the land was got diverted from agricultural land to non-agricultural land, due to which the market value of the land was very much increased. As per the claim of the assessee, the actual date of registration ought to have been taken by the AO when the registration of Agreement to sale was executed i.e. on 09.07.2010 instead of 24.03.2012 taken by the AO and invoked the provisions of Section 50C of the Act. Now, the question arises before us as to what should be the value of consideration to be adopted as per amended provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ld.Revenue authorities is that the assessee has purchased this property on 17.9.2010 for a consideration of Rs.24 lakhs. Thereafter, it was converted to non-agriculture land. The assessee has sold the same on 28.9.2011. The assessee had entered into an agreement with M/s.Ashwal Infracon P.Ltd. on 23.12.2010 and sale consideration was settled at Rs.80.00 lakhs. The assessee has received part payment through account payee cheque. Stamp duty valuation authority have revised their valuation on 1.4.2011, and thereafter vendee was required to pay additional stamp duty of Rs.24,58,000/-. Section 50C has been amended by incorporation of the following provisions: Special provision for full value of consideration in certain cases. 50C. (1) ....... Provided that where the date of the agreement fixing the amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted or assessed or assessable by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer: Provided further that the first proviso shall apply only in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mann.com 435 (Ahmedabad-Trib.) has observed that the right of the assessee got extinguished by virtue of agreement to sale with respect to the property in dispute. After entering into the agreement of sale, a right in personam has been created in favour of the buyer and the assessee was bound to execute the conveyance deed as per the direction of the buyer, therefore, the date of such agreement of sale should be treated as the date of transfer of the property. 10. Reliance can also be placed on the decision of ITAT Mumbai Bench of the Tribunal in the case of Maria Fernandes Cheryl, ITA No.4850/Mum/2019, order dated 15.01.2021, wherein the Tribunal has observed as under:- 8. Once legislature very graciously accepts, by introducing the legal amendments in question, that there were lacunas in the provisions of Section 50 C in the sense that even in the cases of genuine variations between the stated consideration and the stamp duty valuation, anti-avoidance provisions under section 50C could be pressed into service, and thus remedied the law, there is no escape from holding that these amendments are effective with effect from the date on which the related provision, i.e., Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment years. In such a situation amended provisions of Section 50C(1) of the Act brought by the Finance Act, 2016 will be applicable in the case of the assessee, which are retrospective. therefore, as per amended provisions of section 50C(1) for computation of Capital Gain in the hands of assessee, the AO should consider the guideline value of the land which the stamp duty authority has adopted for charging of stamp duty on the date of agreement to sale and not on the date of sale deed. We therefore find merit in the contention of the assessee and accordingly decide this issue in favour of the assessee. 12. Apart from our above findings, with regard to the amount of consideration in the present case, it is noted that the assessee has actually received a consideration of Rs. 4,36,000/- and Rs. 1,00,000/- i.e. in aggregate Rs. 5,36,000/- by way of 2 Sale Deeds for completion of the sale of parcel of land referred to in the Agreement to Sale dated 09.07.2010. Since, the actual consideration received by the Seller / Assessee for Rs.5,36,000/- is higher than the guideline value to be adopted following the judicial pronouncements with reference to the amended provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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