TMI Blog2023 (10) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... that land belongs to CIDCO HELD THAT:- As on perusal of the Sale deed it is observed that said Sale Deed there is 7/12 extract duly signed by TALATHI i.e. revenue officer which shows the Assessee as Owner of the impugned Land. Thus, as per the said 7/12 extract the Assessee seems to be owner of the Land on 31/07/2008. CIDCO has been shown under the other rights. In these facts, CIT(A) s findings that assessee was not the owner of the land at the time of sale is factually incorrect and this fact needs further investigation. It is also a fact mentioned in the Revenue Minister s Order dated 24/11/2008 that the impugned land was Watan Land . Assessee has filed copy of Sanad granting Watan to the assessee. AO and Ld. CIT(A) has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and in law Lower Authorities erred in treating the transaction of sale of land at village Pangaon, Tal: Panvel, Dist. Raigad, as completed transaction and thereby taxing the capital gain on Rs. 96,11,050/- in the hands of assessee, by not appreciating the facts of the case and also erred in rejecting appellant s contention in this regard. 2. Without prejudice to above ground, it is appellants alternate contention that net sale consideration arising out of relevant transaction shall be restricted Rs. 2,00,00,000/- being amount actually received by appellant. Brief facts of the case : 2. The assessee had not filed Return of Income for A.Y. 2009- 10. The Income Tax Officer, Ward-1, Panvel received some information r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Kukreja Family. Mr. Kukreja had given post dated cheques to the assessee. However, subsequently Mr. Kukreja asked his Bank not to honour the cheques. Therefore, the assessee has received only 10% amount of the Total Sale Consideration mentioned in the Sale Deed. The ld.AR pleaded that as per provisions of section 53A of Transfer of Property Act, there are three conditions which needs to be fulfilled. Two of these conditions i.e. Possession has not been handed over and the purchaser is not willing to pay the remaining amount. Thus two conditions of Section 53A of Transfer of Property Act have not been satisfied , hence there is no Transfer as per section 2(47)(v) of the Income Tax Act. The ld.AR invited our attention to the legal noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, ld.AR pleaded that it is an admitted fact by the Department that the impugned land is in the custody of CIDCO meaning thereby that assessee has not handed over the possession of the land to the purchaser Kukreja as claimed by the AO in the assessment order. This establishes that there cannot be any capital gain. Submission of ld. DR : 4. The ld. Departmental Representative relied on the order of AO and ld. CIT(A). The ld. DR submitted that assessee has entered into an agreement on 04.08.2008 with Kukreja family for sale of the impugned land, copy of the said agreement is at page no. 1 to 54 of the assessee s paper book. The ld. DR vehemently pleaded that as per the said agreement assessee had received post dated cheques. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the assessee during the assessment proceedings and before the Ld. CIT(A). However, the AO and Ld. CIT(A) has not mentioned about the Sanad granting Watan to the assessee. This aspect has not been considered by the AO and Ld. CIT(A) in the order while deciding the issue of Cost of acquisition for Long Term capital Gain. 8. It was pleaded before us that the possession of the impugned land was never handed over to the purchaser Mr. Kukreja. However, the AO in the Assessment Order has mentioned that Possession of the land was transferred over to Kukrejas. Subsequently the AO in the remand report submitted to the Ld. CIT(A) admitted that the possession of the impugned land was with the CIDCO. 8.1 Thus, there are major factual e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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