TaxTMI 
TaxTMI 
TaxTMI 
2011 (10) TMI 682
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....t is entered into between assessee HUF & M/s Deepganga Associates as well as "transfer of property" has taken place from assessee HUF to M/s Deepganga Associates as per Sec. 2(47) of the Act then, "In the facts & circumstances of the case the Ld. CIT(A) failed to accept the contention that the value adopted for stamp duty by Sub Registrar was in excess of market value of the property". "He ought to have directed the A.O. to obtain valuation report from District Valuation Officer to find out correct market value of the land." Alternative ground No.2: Assuming for the sake of argument that a valid transfer of property has taken place & value adopted by Sub Registrar for stamp duty is applicable as per sec. 50-(c ) of the Act, then, "The Ld. CIT(A) erred in law in accepting the method of calculation made by A.O while determining exemption available to assessee u/s 54F of the Act." Since issue raised in ground no. (1)(b) goes to the root of the matter, we preferred to adjudicate the same first. Ground No.(1)(b) 2. The relevant facts are that the assessee HUF, an agriculturist family entered into development agreement on 26.6.2003 with M/s. Deepganga Associates whereby the HUF gav....
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....ssee HUF. Not only that the assessee HUF is a joint holder of land alongwith other 5 members of the family and the share of the assessee HUF in the said land is undivided and undemarcated. Thus every member is interested in every part of entire land situated in S.No 34 and whole land belongs to every member. Therefore, the question of giving possession to the builder M/s Deepganga Associates is improbably in a situation where share of assessee HUF land is not demarcated, ascertained and partitioned. In fact the other members filed a suit against assessee HUF in the Dist. Court for determination of respective share of each member in land. The Dist. Court decided the case against the assessee HUF by allocating lesser area to the assessee HUF. Thus area of land which has been agreed upon by assessee HUF to sell under development agreement dt. 26.6.2003 is also incorrect. The assessee HUF has gone in appeal in Bombay High Court vide appeal No. 1119 of 2004 which is pending disposal. 4. It was further pointed out that no possession has been given by the assessee HUF to M/s. Deepganga Associates till today. Out of total agreed consideration of Rs. 60 lakhs, the amount of Rs. 38,48,150/-....
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.... assessment and it is immaterial what the assessee claims. 9. Considering the above submissions, and having gone through the orders of the authorities below and decisions relied upon, we find that some material facts of the case have not been rebutted by the Revenue. The fact of payment of Stamp Duty at the rate of 1% under Article (v)(ga) of Schedule 1 of Bombay Stamp Act 1955 by the assessee has not been rebutted by the Revenue. The payment of stamp duty at the rate of 1% which is required to be made in case of registration of a document without handing over the possession of the subject immovable property. If the document is registered with handing over the possession of the property in transactions, the requirement of payment of stamp duty is at the rate of 5% under Article 25 of Schedule 1 of Bombay Stamp Act 1958. The other material fact remained to be rebutted in the present case is that as per clause 10 of the developmental agreement it has been made clear that property as stated in clause 1 of the agreement will be transferred and purchase deed will be executed only after the receipt of the payment of entire consideration of Rs. 60 lakhs and payment of stamp duty. Section....
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....m such property. The Tribunal held further that Section 2(47)(v) of the I.T. Act would apply only to those cases, where the transferee has no part to perform in respect of the contract and has taken possession of the property or any part thereof. Further, the transferor has performed or willing to perform his part of the contract and then only Section 2(47)(v) of the I.T. Act would have application. 10. The Mumbai Bench of the Tribunal in the case of General Glass Company (P.) Ltd. v/s. DCIT (Supra) held that where payment of balance consideration within stipulated time is essence of the agreement of sale and such payment is not made in time by the transferee, such contract does not confirm any right on the transferee as envisaged u/s. 53A of the transfer of Property Act 1982 and provisions of Sec. 2(47)(v) of the I.T. Act cannot be applied in such a situation. 11. In the present case before us as discussed above, the agreement in question does not establish that a transaction of sale of property was completed in terms of provisions of Section 2(47)(v) of the I.T. Act read with Section 53A of the transfer of Property Act as neither the entire consideration was paid nor the posses....