TaxTMI 
TaxTMI 
2015 (8) TMI 1093
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.... the original sale agreement despite specific requirement and opportunity given. (b) The registered sale deed dated 2-11-1997 specifies that the actual physical possession was handed over only on 28-1-1997 after receipt of the full consideration, meaning thereby that the effective and actual physical possession was handed over by the seller to the purchaser only on 28-1-1997. (c) The registered sale deed dated 28-11-1997 clearly specifies that the amount of Rs. 40,000/- paid by the buyer in May, 1980 was a loan and the same has been adjusted on 28-11-1997 towards the sale consideration and the assessee has made the payment of Rs. 4,55,000/- through cheque no. 384890 dated 27-11-1997 and Rs. 4,95,500/- through cheque no. 384889 dated 27-11-1997. (d) For any immovable property to be transferred under the Transfer of Property Act, there should be actual delivery of possession of the property and the agreement for transfer of title of the property should be registered and only on registration of the agreement to sell does the ownership of the property gets transferred in the eyes of law in view of the provisions of Section 54 of the Transfer of Property Act, Section 17 and 23 ....
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....ntly, they entered into an agreement with a developer M/s. Blue Sky Build Estate (P) Ltd. for construction of a complex. It is a portion of complex which has now been sold to Shri Shankar Jethani as per the sale deed dated 28- 04-2008. The total constructed area of the complex has not been specified nor any such details have been furnished as required. The assessee has furnished a chart showing computation of capital gain as under:- Date of sale 28/4/2008 Sale consideration received Rs. 2250000/- Sale consideration as per Sec. 50C Rs. 37,86,494/- (1/2 share) Date of Purchase: 1980 Fair market value as on 1/4/1981 Rs. 535919 Indexed cost of purchase/Impov. Rs. 31,19,049 Additional payment made to Seller at the time of Registry 27/11/1997 Rs. 951000 Rs. 16,72,151 Cost of improvement 2002-03 Rs. 475706 Rs. 418218 2003-04 Rs. 145424 Rs. 127850 2004-05 Rs. 71529 Rs. 62885 Rs. 608953 Rs.5400153 Rs. 5400153 Nil The AO observed in the computation....
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....erein, then the registered document shall take effect against every unregistered document relating to the same property. In assessee's case, the socalled undated sale agreement is not registered with the Registration Authorities whereas there is registered sale deed dated 28-11-1997 and 29-1-1997 duly registered with the Sub-Registrar-II, Jaipur in respect of the property in question, which clearly specifies the receipt of full sale consideration and handing over of actual physical possession. The registered sale deed dated 28-11-1997 clearly specifies that And whereas the buyer has paid the total sale consideration of Rs. 4,95,000/- (Rs. Four lac Ninety five thousand five hundred only) to the seller in the mode and manner as follows:- (i) Rs. 40000/- (Rs. Fourty thousand only) was paid by the buyer to the seller previously as loan, vide DD No. B-477939 of Dena Bank in May 1980 which has been adjusted by the seller against the sale consideration and which the seller hereby acknowledges as received part of the sale consideration. (ii) Rs. 4,55,500/- (Rs. Four lac Fifty Five Thousand Five hundred only) has been received by the seller from the buyer vide chequ....
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....ETAIL IN THE SCHEDULE-1 hereunder and the property of which this part has been sold shown by yellow colour in the site plan enclosed to this deduction of sale which is an indispensable part and parcel of this deed of sale. AND THE SELLER HAS HANDED OVER ACTUAL PHYSICAL POSSESSIONOF SOLD OUT PROPERTY TO THE BUYER WHICH THE LATTER HAS TAKEN OVER FROM THE SELLER. AND NOW THE BUYER HAS BECOME ABSOLUTE OWNER OF THE SOLD OUT PART OF IMMOVABLE PROPERTY INSTEAD OF THE SELLER AND THE BUYER IS ALL CAPABLE TO USE AND UTILIZE IT IN THE MANNER AS THE BUYER WISH. THE SOLD OUT PART OF THE SAID PROPERTY ALSO CONSISTS OF ALL RIGHTS, INTERESTS EASEMENT TO BE VESTED IN THE BUYER. On the basis of assessee's submissions, the AO concluded that the assessee was in actual physical possession of the property in question from seller to the buyer (assessee ) only on 28th /29th Nov. 1997 after receiving the entire sale price as clearly spelt out in the sale deed executed on 28/29th Nov. 1997, duly registered with the Sub-Registrar-II, Jaipur City. Therefore, the contention of the assessee that the property sold to her buy the buyer in 1980 and she was having its possession from 1980 is devoid of ....
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....floor and third floor is in the complete ownership of the assessee and the co-owner whereas the second floor is the ownership of the developer company. Since the assessee had sold only the third floor measuring 2670 ft , it would be fair and reasonable to work out the indexed cost of acquisition @ 20% of the total indexed cost of acquisition and being its co-owner, she would get the benefit @ 10% of the expenditure on account of improvement as the 53% share in the improvement charges has been met out by the assessee and the other co-owner. On the basis of the above discussions, the long term capital gain worked out by the AO is as under:- Sales consideration as per Provisions of Section 50C Rs. 75752988 ½ share of the assessee Rs. 3786494 Less: Indexed cost of acquisition 27th /28th Nov. 1977: Rs. 495500+Rs. 495500 Rs. 991000x582 331 Rs. 1742483 20% thereof Rs. 348496/- Rs. 348496/ Indexed cost of improvement as Discussed above (20%) 2002-03 Rs. 47570x582 447 Rs. 61936 2003-04 Rs.....
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....bmitted his prayers through the written submission as under:- ''1. the fact of payment of advance amount of Rs. 75,000/- in Sept. 1980 has not been doubted by the AO and no evidence/ material have been brought on record by the AO to dispute these payments. 2. The fact of the advance payments having been made to seller is evident from the registered sale deed itself and the agreement to sale entered into before executing the registered sale deed. 3. The buyer has been in possession of the said land since 1980 which in fact is evident and noted in the sale deed itself as well as the registration to sale. 4. According to the provisions of Section 2(47) of the I. T. Act, 1961, a capital asset is considered to be where the possession thereof has been transferred in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882. Therefore, the date of acquisition has to be considered as the date of taking possession of the property i.e. May, 1980. 5. The AO has doubted only the enforceability of agreement to sale on the ground that the agreement was not witnessed and was not registered. However, the AO failed to appreciate the....