TaxTMI 
TaxTMI 
2012 (11) TMI 753
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....ence consequential additions deserves to be deleted." 3. That the Hon'ble CIT(A)-XVII has not disposed ground No.4 of grounds of appeal placed before him "That on the basis of facts and circumstances of the case the addition of long term capital gain into the income of the assessee is incorrect and wrong and not permissible under the law." 4. That the Commissioner Appeals has erred holding that the provisions of section 50C(2) are applicable to the appellant company. 5. Your appellant craves leave to add, alter, amend or withdraw any of the grounds of appeal at the time of hearing." 2. Facts, in brief, as per relevant orders are that return declaring income of Rs.1,51,012/- filed on 08.10.2007 by the assessee, trading in DEPB licenses, was selected for scrutiny with the service of a notice u/s 143(2) of the Income-tax Act, 1961 (hereafter referred to as the Act). During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee sold immovable property i.e. a factory shed for a consideration of Rs.25 lacs while stamp duty was paid on an amount of Rs.46,72,000/- in terms of sale deed executed on 14th August, 2007 in pursuance to ....
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....med to be the full value of the consideration received or accruing as a result of such transfer." A glance at the section 50C makes it clear that it is special provision for taking the full value of consideration in certain cases of transfer of property. It is a deeming provision which makes it mandatory to adopt the value of consideration which has been adopted or assessed by the stamp valuation authority for the purpose of computing the capital gains. The Ld. AR vide his written submission has admitted that the assessee had relinquished its right in the property on the basis of Agreement to sell, therefore, the appellant considered it to be the matter covered under section 2(47) of the I.Tax Act for the financial year 2006-07 relevant to the assessment year 2007-08 and considered it the transaction falling under the head income from capital Gain. Once it has been admitted that the transaction was completed on 08.01.2007 itself i.e. the date on which agreement to sale was executed ,possession was also handed over the same day and registration of the sale deed was only a formality, the appellant cannot claim that provisions of section 50C will not be applicable because the sale ....
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..... Since the transaction was complete in the year under consideration and possession was also given, capital gains are assessable in the year under consideration. However, to a query by the Bench in the context of various clauses in the agreement to sell dated 8.1.2007 as also clause 3 & 5 of the sale deed dated 14.8.2007, the ld. AR did not refer us to any document ,suggesting handing over of possession in the year under consideration. Instead, the ld. AR on behalf of the assessee referred to decisions in the case of Union of India Vs. Chaman Lal ,AIR 1957 SC 652; Carton Hotel Private Ltd. vs. ACIT dated 14.11.2008 and Meghraj Baid vs. ITO dated 14.2.2008 reported in TTJ and mentioned in the impugned order. 5. We have heard both the parties and gone through the facts of the case. As is apparent from the aforesaid facts, the AO ,without recording any findings as to when the transaction of sale of aforesaid immovable property was completed or when the possession of the said property was handed over and without even referring to provisions of the section 50C of the Act, added the amount of Rs.10,99,885/-,adopting sale consideration of 46,72,000/-.On appeal, the ld. CIT(A) without e....
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....ereafter be entitled to the exclusive ownership and possession of the sold property and shall be entitled to all transferable and heritable rights in it. The Vendee shall further be fully entitled to sale, mortgage, lease, fits, exchange or in any manner alienate the sold property." ................................................................................................... "5. That the vendor doth hereby assures and covenants with the vendee that the vendee shall henceforth quietly and peacefully possess, occupy and enjoy the sold property without and denial, demand, interruption or trouble of any kind whatsoever by the Vendor or any person lawfully and equitable claiming under the vendor." 5.2 It is stated in the aforesaid sale deed that the remaining amount of Rs.21 lacs was paid only at the time of execution of the said sale deed. As already stated, neither the ld. CIT(A) in the impugned order nor the assessee before the ld. CIT(A) and even before us adverted to the aforesaid clauses in the agreement to sell and sale deed and nor even the assessee referred us to any evidence regarding the handing over of possession to the buyer. In order to bring the capital ass....
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....e facto ownership by way of handing over of possession of the property as per contract and part performance by the transferee without actual conveyance of title, was first time made by the Finance Act, 1987, by amending the definition of section 2(47)(v) of the Act. 6. In the instant case, the agreement to sell was entered in to on 8.1.2007 while the sale deed was executed on 14.8.2007 and registered. There is not even a whisper in the assessment order regarding handing over of the possession while the ld. CIT(A),without even referring to various terms and conditions in the agreement to sell or sale deed ,accepted the submissions of the assessee that possession was handed over on 8.1.2007 itself. However, the aforesaid clauses culled out by us speak otherwise and the ld. AR appearing before us did not refer us to any evidence regarding handing over possession. In these circumstances, especially when the assessee in his grounds of appeal before us contended that the ld. CIT(A) did not adjudicate their ground nos. 1,3 & 4 raised before him while the ld. CIT(A) did not allow any opportunity to the AO nor seems to have undertaken any independent exercise in order to verify the conte....