TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 758
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....w, Ld. CIT(A) erred in passing an order u/s 250(6) of the I.T. Act, 1961 and that too without appreciating fully and properly the facts of the case. 4. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in holding that the order passing by the ACIT 2(1) is justified and that the same is not prejudicial to the interest of the appellant. 5. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in confirming the determination of Long term Capital Gain for the year 2009-10 on the issue of assessing the receipts i.e. total receipts of Rs. 40,00,000/- from the sale of Land in Pune as that Short Term Capital Gain and interalia disallowing claim u/s 54EC of the IT Act. 6. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in confirming the order passed u/s 143(3) of the I.T. Act on 26.12.2011 for A.Y. 2009-10 on the issue of assessing the receipts i.e. total receipt of Rs. 40,00,000/- after treating the said income as income other than short capital gain and disallowing the exemption u/s 54EC of the I.T. Act." 3. The assessee has raised the additional grounds: - "1. On the facts and in the circumstanc....
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....05.2008 and accordingly AO treated the subsequent agreement of sale for acquisition of plot in question which was subsequently sold on 21.07.2008, therefore, the claim of u/s 54EC of the Act in sum of Rs. 30,00,000/- was denied and the income of the assessee was treated as short term capital gain. In brief, the controversy surrounds upon the execution of the first agreement dated 23.07.1996 and the subsequent agreement to sale dated 03.05.2008. The only dispute is this which agreement is required to be treated for the acquisition of plot in question. The Ld. Representative of the assessee has argued that the assessee has purchased the plot in question in sum of Rs. 4,51,277/- by virtue of agreement dated 23.07.1996 registered on 30.07.1996, therefore, accordingly, the long term capital gain is liable to be assessed and the claim of the assessee u/s 54EC of the Act is liable to be allowed. It is also argued that the assessee paid the society charges on 10.05.2001 in sum of Rs. 780/-, in sum of Rs. 3009/- on 04.03.2003. It is argued that the subsequent agreement dated 03.05.2008 nowhere falsify the claim of the assessee in connection with the purchase of plot on 23.07.1996 but the A....
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.... one cheque dated 11.04.2007 of Rs. 10 lacs each. The details of the payments given in clause 2 are as under:- Thus, it is clear that out of the total consideration of Rs. 50 lacs the assessee paid Rs. 40 lacs at the time of agreement. The vendors have also acknowledged receipt of the consideration of Rs. 40 lacs. As per clause 5 of the agreement the possession of the land was handed over to the assessee as under:- The balance consideration of Rs. 10 lacs was paid on 29.09.2008 thus, it was not disputed that that part consideration was paid by the assessee at the time of agreement dated 11.04.2007. The possession of the land was also handed over to the assessee in part performance and consequently the land was available to the assessee for enjoyment. It is also not disputed that after the possession handed over to the assessee the assessee carried out some development work and the said expenditure was disallowed by the AO on the ground that it is prior to the execution of sale deed dated 13.04.2010. There is no quarrel that section 42 of Rajasthan Tenancy Act, 1955 prohibits sale, gift or bequeath of agricultural land by a member of scheduled caste in favour of a person who is a no....
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....greement to sale itself. 7. Though as per the amendment brought to the registration Act 1908 vide amendment Act 2001 an agreement for sale of any immovable property without registration shall have no effect of transfer however, the agreement in question has to be seen along with the sale deed executed subsequently. It is not a case of transfer based only on unregistered documents but in this case the parties to the agreement have executed sale deed in performance of the agreement. Therefore, the transfer of immovable property would be considered as a combined act of agreement to sale and sale deed as a single transaction of transfer with effect from the date on which such transaction was intended and conceived by the parties to the transaction. Hence, agreement to sale dated 11.04.2007, conversion of land use by JDA on 03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010 are interlinked and inseparable chain of events necessary for transaction of transfer. The contents of the sale deed dated 13.04.2010 clearly show that it is in furtherance of agreement dated 11.04.2007. The sale deed clearly states that made of payment of consideration as per the details given ....
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.... execution of an agreement to sell, the capital asset can be deemed to have been transferred. Relevant portion of Section 2(47), defining the word "transfer" is as under: '2(47) "transfer", in relation to a capital asset, includes,- (i)** ** ** (ii) the extinguishment of any rights therein; or. . . . . . . . . . . . .' 21. Now in the light of definition of "transfer" as defined under Section 2(47) of the Act, it is clear that when any right in respect of any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset. In the light of the aforestated definition, let us look at the facts of the present case where an agreement to sell in respect of a capital asset had been executed on 27th December, 2002 for transferring the residential house/original asset in question and a sum of Rs. 15 lakhs had been received by way of earnest money. It is also not in dispute that the sale deed could not be executed because of pendency of the litigation between Shri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appell....
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....Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that common sense is a stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the Act. In the case of Oxford University Press v. CIT [2001] 247 ITR 658/115 Taxman 69 this Court has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax. Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of "transfer", w....