TaxTMI 
TaxTMI 
2019 (5) TMI 294
X X X X Extracts X X X X
X X X X Extracts X X X X
....in law in upholding A.O.'s action of treating Rs. 85,00,000 being sale consideration towards plots under the head 'short term capital gains' as against 'long term capital gains' as claimed by assessee, and consequently denying deduction u/s 54EC as claimed by the assessee. 2. The learned CIT(A) ought to have appreciated that the said land was acquired in 1997 when admittedly possession was obtained by the assessee and substantial payment for purchase consideration were also made. He failed to appreciate the context, intent and meaning of sec. 2(47)(v) of the Income Tax Act read with Section 53A of the Transfer of Property Act. He further, erred on relying on Bombay High Court's decision in 161 ITR 92 which is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mount was withdrawn in the name of Prabhu J. on 10.01.2008 and deposited in Citi Bank. The case of assessee was taken up for scrutiny. The Assessing Officer noted that the assessee along with Shri Sahebrao Narayan Kalokhe had entered into an agreement dated 05.11.1997 with Shri Ishwar Pandu Chavan, Suresh Ishwar Chavan and others for purchase of land bearing Gat No.338 at Taluka-Haveli, Pune. The Assessing Officer notes that sale consideration was not mentioned in the said agreement. As per para 2, it is mentioned that purchaser i.e. assessee could develop the said land as per his wish. Further, the assessee along with Shri Sahebrao Narayan Kalokhe had also entered into another purchase agreement dated 02.09.1997 with same parties for pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as held for more than 36 months, since the said land was purchased in 1997, which is evidenced by agreement to sell and possession receipt executed by the landlord. He thus, claimed that since the rights had been bought in the land and physical possession of the land had been taken over, therefore the said property was owned for more than 36 months and for the purpose of capital gains, the gain arising was long term capital gains. The assessee also explained that the funds which were received on sale of his rights were utilized for construction of his house and it was pointed out that sum of Rs. 20 lakhs which was transferred on 10.01.2007 was to the joint account of Jethani brothers. The said funds were allocated for construction of house ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urther stressed that the possession of said land was received by assessee but it was not legally received as the said land was 'maherwatan' land. He pointed out that the said agreements were not registered. He explained that the owners were occupant class-2 i.e. they had limited rights; but by paying 50% of land value, they could become occupant clause-1 owners and then transfer the land. The learned Authorized Representative for the assessee pointed out that this consideration was paid on a later date. Our attention then was drawn to the registered document dated 07.12.2004, which was again between the same parties and same consideration as mentioned in earlier agreement 1997 was mentioned. He thus, stressed that rights which were acquired....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a piece of land. It may be pointed out that as early as September / November 1997, the assessee enters into two separate agreements for two separate pieces of land, under which the assessee was to develop the said land. In respect of one agreement dated 05.11.1997, sale consideration was not mentioned but in respect of second agreement dated 02.09.1997, Rs. 6 lakhs has been paid by cheque and was mentioned in the sale agreement and the same is not disputed by any of the parties. The date of handing over of cheque of Rs. 6 lakhs is dated 02.09.1997 and the same has not been found to be incorrect by the authorities below. The assessee explained that the land which was 'maherwatan' land, wherein the owners were occupant class-2 and had limited....