TaxTMI 
TaxTMI 
2016 (4) TMI 863
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....legally correct in passing the order appealed against after considering the facts of the case incorporated in the registered sale deed and after applying the law laid down by Hon'ble Patna High Court (201 ITR 1032); 2. Alternatively ld. CIT(A) should considered and allowed following legal grounds of appeal : (a) Deductions of Rs. 50,00,000/- u/s 54EC of I.T. Act for investment in NHA Bonds and Rs. 85,59,386/- u/s 54B of I.T. Act for purchase of new agricultural land (b) Indexation benefit of sold agricultural land should have been allowed as per actual purchase cost of assessee and not on the basis of presumed calculated value of sold agricultural land (as per assessment order of ld. AO) 4.1 Brief facts are - assessee along with other joint owner Mrs. Kailashi Devi W/o Shri Jitendra Kumar owned agricultural land at village Chatarpura (Tehsil Goner) District Jaipur. The impugned land was jointly sold for Rs. 6,00,00,000/- (six crore) through a conditional sale deed dated 17th January 2011 (registered with sub-Registrar on 19.01. 2011 to one M/s. Apex Land Mark Pvt. Ltd., through its Director Shri Gopal Lal Jat. Assessee's received share of sale proc....
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....he LTCG were taxable in AY 2012-13, by following observations: ''In view of facts and circumstances of the case as mentioned above, AO is not correct to take hypothetical income on capital gain for A.Y. 2011-12 when appellant, on the basis of sale consideration received in F.Y. 2011-12 has offered it for taxation in her return of income for A.Y. 2012-13 because the said conditional sale was ab initio avoid. Capital asset as defined u/s 2(14) of Income Tax Act, 1961 has to be interpreted w.r.t. Section 54 of the Transfer of Property Act, 1882. Properties do not necessarily pass as soon as the instrument is registered, for, the trust test is the intention of the parties. Registration is prima facie proof of an intention to transfer, but it is not proof of an operative transfer, if there is a condition precedent as to the payment of consideration of delivery of the deed. Thus the seller may retain the deed pending payment of price and in that case there is no transfer until the price is paid and the deed is delivered. The transfer u/s 2(47) must mean an effective conveyance of the capital asset to the transferee. Here in this case, AO for best reasons known to him, has comple....
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....93,55,828/- paid through postdated cheques was realized. The same clause provided that if postdated cheque is dishonored on given date, the payment was to be made within 15 days without any further notice to buyer from the Seller(s). On receipt of payment against dishonoured cheque, the Buyer will obtain a receipt from the Sellers. In case of non-payment within said period of 15 days, the sale and transfer of property will stand void ab-initio without any legal action on part of the Seller. Ld. AO conveniently avoided this important and crucial clause of conditional sale, and reproduced the wording of the clause in partisan manner that "the total payment of sale consideration has been received and accepted by the Sellers .........". This indicates that the action of ld. AO was guided by sole aim to willy-nilly propone the year of sale and transfer of land to A.Y. 2011-12. When the sale is accepted by both the parties as void ab initio by way of legal notices, there is no justification to charge long term capital gains on such conditional sale which is admittedly void ab-initio. The conditional sale was mandatorily dependent on agree precondition that all the postdated cheques are r....
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....f sale of immovable property which is included in the expression "capital asset" as defined under section 2 (14) of Income tax Act 1961 has to be gathered from section 54 of the Transfer of Property Act 1882. Properties do not necessarily pass as soon as the instrument is registered, for, the true test is the intention of the parties. Registration is prima-facie proof of an intention to transfer, but it is not proof of an operative transfer, if there is a condition precedent as to the payment of consideration of delivery of the deed. Thus the seller may retain the deed pending payment of price and in that case there is no transfer until the price is paid and the deed is delivered. The transfer under section 2 (47) must mean an effective conveyance of the capital asset to the transferee. Held, that, in the instant case, it was apparent that the parties had clearly intended that, despite the execution and registration of sale deeds, transfer by way of sale would become effective only on payment of the entire sale consideration and in this background of facts, it had to be held that there was no transfer of land covered by the three sale deeds in question during the period un....
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....allow the deductions. The consideration and interest on loan for purchase of sold agricultural land was paid by the appellant as per following details for which investments are appearing in her regular books of accounts:- Date Amount Indexation Inflated cost Annexure 07.09.2005 20,00,000 20,00,000X 711./ 497 28,61,167 J-1 05.08.2006 1,35,200 1,35,200X711./519 1,85,262 J-2 05.08.2006 44,92,987 44,92,987X711./519 61,55,132 J-3 02.07.2007 2,31,000 2,31,000X711./551 2,98,078 J-4 31.03.2009 1,00,124 1,00,124X711./711 1,00,124 J-5 31.03.2010 2,77,162 2,77,162X711./711 2,77,162 J-6 08.05.2010 2,50,000 2,50,000X711./711 2,50,000 J-7 74,86,473 1,01,26,925* (Summary of above detailed payments, appearing in appellant's books is also attached. * Cost inflation will be higher if sale treated as made in F.Y. 2011-12) As against inflated price of Rs. 1,01,26,926/-, ld. AO at page No. (8) of the order appealed against, has calculated Rs. 49,00,812/- as cost inflation price of the sold agricultural land by tak....
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.... Transfer of the ownership of property based on a on a contract registered or otherwise is to be ascertained from the intention, documents and volition of the parties to the transaction. A different stand cannot be adopted by revenue authorities on one hand not to question about the genuineness of the documents and then hypothecate over the covenants. In our view the unconditional transfer of ownership and possession took place in FY 2011-12 relevant to AY 2012- 13 the year in which assessee has disclosed the same in her return of income. Besides Hon'ble Patna High Court in the case of Smt. Raj Rani Devi Ramna (supra) has clearly held that "Registration is prima-facie proof of an intention to transfer, but it is not proof of an operative transfer, if there is a condition precedent as to the payment of consideration of delivery of the deed. Thus the seller may retain the deed pending payment of price and in that case there is no transfer until the price is paid and the deed is delivered. The transfer under section 2 (47) must mean an effective conveyance of the capital asset to the transferee." In our considered view the ratio of this judgment is favorably applicable ....