TaxTMI 
TaxTMI 
2015 (11) TMI 1269
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....payment towards allotment of land; 3. the learned CIT(A) has erred in upholding the action of the learned AO ignoring the fact that the Appellant has complied with all the payment terms of allotment of land thereby amounting to deemed possession of land which BDA has stipulated for allotment of land; 4. In the learned CIT(A) has erred in law and on facts in upholding the action of theAO by merely going on the basis of form of transaction thereby ignoring the spirit of provisions of section 2(47)(v) of the Income Tax Act, 1961. 5. the learned CIT(A) has erred in law and on facts by upholding the action of the learned AO by ignoring the fact that the Appellant has undertaken part performance of the contract inasmuch as by paying the entire consideration as stipulated by BDA for allotment of land thereby registration of land has become a mere formality. 6. the learned CIT(A) has erred in law and on facts in upholding the action of the AO ignoring the judicial precedents relied upon by the Appellant. " 3. The only issue that arises in the appeal of the assessee is whether the capital gain received by the assessee on the transfer of the land in que....
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....d AR of the assessee has submitted that there is no dispute that the assessee acquired this property in the auction from BDA on 5/2/2001 and accordingly allotment letter was issued to the assessee by the BDA on 14/2/2001. The assessee made payment of the entire consideration from 15/2/2001 to 28/4/2001. He has referred to the provisions of sec.2(42A) and submitted that the term 'capital asset held by the assessee' has been interpreted in various decisions by the Tribunal as well as the Hon'ble High Court and therefore, the word 'held' occurring in the said section implies that the asset need not be held as a legal owner and therefore, registration of the conveyance deed has nothing to do with the holding of the asset by the assessee. In support of his contention, he has relied upon the following decisions: i) CIT vs. A. Suresh Rao (ITA No.417 2013)(Kar) ii) A.Suresh Rao vs. ITO (ITA No.761/Bang/2011)(Trib) iii) Vinod Kumar Jain vs. CIT (344 ITR 501)(Punjab & Haryana) iv) CIT vs. K.Ramakrishnan (363 ITR 59)(Delhi) Thus, the learned AR of the assessee has submitted that when the assessee has acquired the property in auction and the allotment letter was issued by the BD....
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....antial question framed by the Hon'ble jurisdictional High Court in para.6 is as under: "Whether in the facts and circumstances of the case, the Tribunal is right in law in holding that the expression 'held by the assessee' in section 2(42-A) of the Income Tax Act implies a person in whose favour an allotment of a site made in the first instance, when the entire consideration was paid in pursuance of such allotment?" Thus it is clear that the question before the Hon'ble High Court was regarding the interpretation of the expression 'held by the assessee' in section 2(42A) of the Act whether it is from the date of allotment of site or from the date of execution and registration of the conveyance deed. The Hon'ble High Court has held in para.15 to 18 as under: "15 All the aforesaid judgments relied on by the Revenue are cases arising prior to the amendment to Section 2(47) of the Act. The very same judgments show, in particular the judgment of the Full Bench of the 'Gujarat High Court, the reasons for amendment even in the absence of a registered deed of transfer, if the transaction in question demonstrates the intention of the parties and after paying the ....
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....le deed dated 6.10.2005, was treated as a consideration for the same on 27.2.2008. It is thereafter the assessee transferred the site by way of a registered sale deed in favour of a purchaser on 29 5 2008 and received a consideration of Rs. 1 crore 13 lakhs. This site, which was transferred, he was holding it from 21.9.1988, when he paid the consideration on intimation of allotment. Merely because the original site which was allotted was cancelled, yet another site was allotted and the said site was also cancelled and thereafter the present site was allotted, in law would make no difference. Admittedly, the consideration paid on 21.9.1988 is treated as the consideration for the sale dated 27.2.2008. In other words, the cost of acquisition of the asset was paid on 21.9.1988 and no cost was paid either on the date of allotment, on 15.2.2008 or on the date of registered sale deed on 27.2.2008. For the purpose of computing the capital gains under Section 48 of the Act, it is the date: of acquisition of the asset, which is to be taken into consideration and the said cost of acquisition is to be converted as the indexed cost of acquisition as defined in the Explanation to Section 48 of t....