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TMI Blog2023 (4) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CIT(A) erred in not holding that no capital gains arose during the year since the registered agreement to transfer the impugned property was executed before the registrar and possession was handed over in the earlier year and mere registration on later date by registrar cannot result in transfer in the year of registration. Accordingly the Appellant prays that no transfer had arisen in the year under consideration therefore the addition is prayed to be deleted. Ground-II: Not Admitting Additional Evidences On the facts and circumstances of the case and in law the learned CIT(A) erred in not admitting the additional evidences submitted before him without appreciating that the additional evidences went to the root of the matter and ought to have been admitted in the interest of justice. The Appellant prays that the matter be set aside to CIT(A) to consider and admit the said additional evidences. Ground-III: Deemed Sale consideration On the facts and circumstances of the case and in law the learned CIT(A) erred in confirming the action of AO of not considering the sale consideration prevailing at execution of agreement and upholding the action of AO in considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2017 requiring submissions of certain querries as the Legal heirs of Late Shri Bhuwan Balai the said notice the Legal Heirs of late assessee came to know that he had been subject to assessment proceedings for AY 2010-11. The assessee was totally dependent financially on his sons and did not have any income of his own or had any property in his name at the time of his death. The case of the Deceased assessee was based on the Annual Information Report received by the learned Assessing Officer regarding capital gains in AY 2010-11 for sale of agricultural land. The land was used as such by assessee before transfer. The legal heirs had truly stated that their father late Shri Bhuvan Balai had not sold any land in the Financial Year 2009-10 and had no income during the said financial year pertaining to Assessment Year 2010-11. He did not have any taxable income for AY 2010-11 therefore he did not file any income tax Return and no Return was filed after his death. During the course of proceedings the learned assessing officer in his notice had stated that the Late Shri Bhuwan Balai had sold Ancestral Agricultural Land in Niranjanpur, District Indore. According to the notice it is ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer in point 3.4 of the Assessment Order dated 27.12.2017 that the Purchaser Shri Atul Surana, Director of Modern Infra and Real Estate Private Limited had signed on 16.02.2010 is incorrect as per the Copy of Sale Deed he had signed on all the pages on 18.06.2008 including the last page in front of witnesses Shri Satish son of Shri Shankarlalji and Shri Sunil Son of Shri Asharamji. It is clear from all the pages of the Sale Deed that the Purchaser has in fact signed the sale deed on 18.06.2008. The Purchaser Shri Atul Surana, Director of Modern Infra and Real Estate Private Limited had signed on the sale agreement/deed on all pages including Page 6, But due to some reason he could not sign in the presence of sub registrar when the sale deed was presented. Shri Atul Surana signed in presence of sub registrar on 22.02.2010, and when the guideline value was higher, he paid the additional duty In para 3.5 of the assessment order, the learned AO had set the meaning of the term Executed. To do all that is required to make the document legally binding. When a person executes a document, he or she signs it with proper formalities. It is clear from the copy of Sale Deed that Both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult to furnish details of old papers more than decade old. The assessing officer vide his order dated 27.12.2017 has computed Long term capital gains for the assessment year 2010-11 and made demand of Rs. 1,16,63,709 which is not correct as per above facts. The legal heirs to the assessee maintains that no tax was payable and no income to be assessed in the Assessment year 2010-11. The learned Assessing officer had proposed to initiate penalty under section 271(1)(b) and under section 271(1)(C), for inaccurate particulars of income. The deceased assessee Late Shri Bhuwan balai was just an Illiterate farmer with Little Knowledge of technicalities and rules of Income tax act. In his ignorance he could not understand the importance of Income tax notices and thus could not comply. He had no intention to not cooperate with the Income tax Department. Written submission dated 19/12/2018: With respect to the above appeal and further 10 our earlier submissions we herewith submit the following:- 1. In the case of assessee, For the purpose of calculation of Capital gains in the Income tax Act, 1961, the transfer is said to be complete as per the provisions of section 2(47) as submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k account, on or before the date of the agreement for transfer. In this case full amount of consideration on and before 18/6/2008, major part of which was by way of account payee cheques as evidenced by the sale deed and copy of bank passbook of sellers already submitted. Possession was also handed over to seller on the same date. The proviso to section 50C of the Act inserted by the Finance Act, 2016 is curative in nature and intended to remove an undue hardship to the assessee and accordingly given retrospective effect from 1st April, 2003 Le. the date effective from which section 50C of the Act was introduced. Accordingly, as per the proviso, the stamp duty value of the property on the date of execution of the agreement to sale should be adapted instead of value on the date of execution of sale deed. In the case of DOIT vs. M/s. Indorie Foot Care Pvt. Ltd. In ITA No.788 /Ind./2016 dated 02.05.2017 it was held that the amendment brought in section 50C of the Income Tax Act by the that the Finance Act 2016 is in nature. 2. the rate prevailing in the market in A.Y. 2008-09 should be considered for the calculation of Capital Gain. Le. the year in which sale was made and not the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been amended, clarifying that unless the document containing the contract to transfer for consideration any immovable property (for the purpose of Section 53A of 1882 Act) is registered, it shall not have any effect in law, other than being received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument. Section 17(1A) and Section 49 of the Registration Act, 1908 Act, as amended, read thus: "17(1A). The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then they shall have no effect for the purposes of the said Section 53A." "49. Effect of non-registration of documents required to be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall- (a) affect any immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly 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 questions decided by the High Court, namely, whether under the JDA possession was or was not taken; whether only a licence was granted to develop the property; and whether the developers were or were not ready and willing to carry out their part of the bargain. Since we are of the view that subclause (v) of Section 2(47) of the Act is not attracted on the facts of this case, we need not go into any other factual question. 21. However, the High Court has held that Section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. We are afraid that we cannot agree with the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale documents (draft sale deed) and therefore, the stamp duty valuation as on the said date should be adopted as full value of consideration instead of the stamp duty valuation at the time of registration of sale deed. We find that as per the first and second proviso to section 50C(1) the Stamp Duty valuation on the date of agreement if the amount of consideration or part thereto has been received by way of account payee cheques or other electronics mode may be adopted as full value consideration. Further, once the assessee has disputed the adoption of deemed full value of consideration the the AO is bound to refer the determination of the fair market value of the capital asset to the DVO. Accordingly, in the facts and circumstances of the case the issue of determination of fair market value of the land in question is set aside to the record of the AO for fresh adjudication after consideration the objections of the assessee as well as the determination of fair market value by referring to the DVO. Ground no.4 is regarding legal expenditure. 10. We have heard the Ld. DR and carefully perused the impugned orders of the authorities below. The assessee has claimed legal expenses of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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