TaxTMI 
TaxTMI 
2019 (1) TMI 1196
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Ground No.3: Without prejudice to the above Ground No 1 and 2, assuming but not admitting that property is transferred in the subject assessment year, the learned CIT(A) has erred in taxing such capital gain in the subject assessment year without appreciating that capital gain on such transfer cannot be assessed to tax in the subject assessment year as consideration is not received in the subject assessment year. Ground No.4: Without prejudice to the above Ground No 1 to 3, the learned CIT(A) has erred in not allowing all the expenditures claimed by the Appellant towards cost of the acquisition. In view of the above grounds and in the facts and circumstances of the case and in law, the Appellant prays your Honours to set aside the relevant assessment order passed by the AO which has been subsequently confirmed by the learned CIT(A) and pass any other order which your Honours may deemed fit in the interest of justice. 3. The present appeal is filed after delay of 20 days. The assessee has filed an affidavit explaining the reasons for delay and in view of the same, I find merit in the plea of assessee and the delay in filing the appeal la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....short 'Joshaba'), Nashik for the transfer of Plot No.72, Town Centre, Sector C-3, CIDCO, Aurangabad on 11.12.2007. The sale consideration was fixed for Rs. 38 lakhs. However, buyer paid sum of Rs. 1 lakh at the time of execution of Deed of Assignment and had given post-dated cheque of Rs. 37 lakhs to the assessee but the buyer could not honour the cheque of Rs. 37 lakhs; the assessee pleaded that it had allegedly not transferred the plot to buyer and transaction of sale and transfer was not completed. The assessee, as an evidence of this averment, provided copy of letter dated 05.06.2014 issued by Joshaba, wherein it was mentioned that since the buyer could not pay balance consideration of Rs. 37 lakhs to the assessee, sale deed was cancelled. The assessee also provided copy of affidavit made by Joshaba dated 06.06.2014, wherein it was affirmed that since the amount was not paid within scheduled time, the transaction for purchase of property was cancelled. The assessee further submitted copy of sale deed dated 01.02.2013 on a bond paper of Rs. 100/-, wherein the assessee was mentioned as a purchaser and Joshaba was mentioned as seller. In the unregistered sale deed, Joshaba had men....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be accepted regarding cancellation of deed of assignment. Further, the assessee had submitted additional evidence in support of cost of construction and cost of acquisition & improvement at Rs. 19,22,660/- and the Assessing Officer proposed that only sum of Rs. 17,74,640/- may be accepted as cost of acquisition and improvement as the balance supporting evidence was not filed. With regard to balance expenditure on account of stamp duty, etc., the Assessing Officer noted that as per the deed of assignment, the said expenditure had to be paid by purchaser, hence the same could not be allowed in the hands of assessee, who was a seller. The claim of repayment of housing loan and interest thereon were not expenses for sale of plot and hence, were not to be allowed. He also pointed out that the assessee has failed to file any evidence in support of commission paid of Rs. 80,000/- and hence the same has also not to be allowed. The assessee in rejoinder pointed out that possession of property was essential for treating the transaction of transfer as complete and since the buyer had explicitly admitted that possession of property was still with the seller, transfer was not complete and hence....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7) of the Act making the assessee eligible for payment of capital gains tax arising out of said transaction. 10. Shri Pramod Jadhav, the learned Authorized Representative appeared on behalf of assessee and Shri M.K. Verma, the learned Departmental Representative appeared on behalf of Revenue and put forward their contentions. 11. On perusal of record and after hearing both the learned Authorized Representatives, the issue which arises in the present appeal is against assessability of long term capital gains tax in the hands of assessee in the captioned assessment year. The transaction involves transfer of Plot No.72, Town Centre, Sector C-3, CIDCO, Aurangabad. The assessee entered into deed of assignment in favour of Joshaba on 11.12.2007, wherein the agreed sale consideration for the said plot was fixed at Rs. 38 lakhs. At the time of execution of deed of assignment, sum of Rs. 1 lakh was paid to the assessee by the buyer and postdated cheque of Rs. 37 lakhs was given to the assessee. It is an admitted fact that the said postdated cheque of Rs. 37 lakhs was not encashed by the buyer. 12. The question which arises is that where the buyer could not pay balance consideration....