TaxTMI 
TaxTMI 
2022 (6) TMI 567
X X X X Extracts X X X X
X X X X Extracts X X X X
....he A.O and the CIT(A)-19, Mumbai erred in not considering the provisions of section 53A of Transfer of property Act,1882. 4. On the facts and in the circumstances of the case the provisions of section 45 of the Income Tax Act,, are not applicable to the assessee since there is no capital asset as on the date of execution of conveyance deed on 31.03.2005 and there is no transfer of any capital asset since the assessee does not hold any legal title to the land as on the date of execution of conveyance deed on 31.03.2005. The transaction is null and void." 2. Briefly, the facts of the case are that the assessee is engaged in business of Flour Mill and derived income there from and notice under section. 148 was issued on 16.03.2009 and in response to the said notice, the assessee filed its return of income declaring total income of Rs. 36,000/-. Thereafter, notice under section.142(1) was issued and necessary information/documentations were called for, which were examined by the Assessing Officer. As per the Assessing Officer, the assessee has sold a piece of land bearing survey No. 193/2 measuring an area of 3.24 hectors to M/s. Niyojit Mahasul Karmachari Gruha Nirman Sans....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2 extract and therefore, the provisions of section 50C are clearly attracted. As per the ld.CIT(A), it is immaterial, who has paid for purchase of the land and where the argument of the assessee is considered to be correct that the appellant was only the front man and number of people contributed to pay the purchase price of the land, similar arguments can be advanced that the same set of the people can contribute towards payment of taxes. Accordingly, ld. CIT(A) held that the stamp duty value of the land being Rs. 78,15,550/-, which is clearly higher than the value shown by the assessee in the sale deed, the value so adopted by the stamp duty authority shall for the purpose of the section 48 be deemed to be the full value of the consideration and therefore, in view of the express provisions of law and the fact that the sale deed was executed on 11.03.2005, the Assessing Officer was correct in adopting the stamp duty value for calculating the long term capital gains. 4. Against the said findings and order of the ld.CIT(A), the assessee is in appeal before us. 5. During the course of hearing, none appeared on behalf of the assessee. However, written submissions dated 12.04.200....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IRMANSANSTHA". viii) Since they were Govt. employees of the same revenue department they were barred from participating in the auction and hence they requested the assessee to make a bid on their behalf. ix) The assessee accepted the request and made the bid for an amount of Rs.58000/-. The Bid was made by the assessee on oral understanding that the land in question was to be transferred to the society immediately after taking the possession of the land. x) Sub divisional officer vide letter No.RRC-71/89-90 had confirmed and approved the bid under the provisions of section 208 of Maharashtra Land Revenue Act. NaibTahsildarWarora vide letter No.Naid.tah/91/303 dated 08.03.91 directedthe talathi to handover the possession of the said land to the asseseee. Accordingly the assessee was given possession of the land vide his letter dated 20.06.1991. The amount of the bid was paid in two installments of Rs.14,500/-on 26.11.90 and Rs.43500/- on 27.02.91. This amount was contributed by the members of the revenue department who formed a SOCIETY for purchasing the said plot. (Copy of the SDO order is enclosed at S.No.1,2and3 of Volume-2paper book.) xi) Imme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e "Abhihastantranlekh"(Conveyance Deed) executed on 31.03.2005 which mentions that: " The said agricultural land was put on auction by the Revenue Department for recovery of outstanding Government Dues. Whereas the said land was purchased in my name in an auction held as per the order of Sub Divisional Officer vide order no. R.M. No. 1/RRC71/89-90/ MauzaBordadt. 22.02.1991. That the said agricultural land was purchased in auction by collecting amount from members of proposed Society with the objective to develop residential colony for the employees of Revenue Department & the sale consideration was paid out of the amount collected from members of the proposed society & was accordingly deposited in Government Treasury. Therefore there was no investment made by me at the time of original purchase. As the below mentioned land was purchased from the amount collected from members, I (VENDOR) hereby transfer the said land in favor of the Society for benefit of members of society by way of this deed." : (English translation page 3 to 5 enclosed at Vol-3 paper book). f) 7/12 extract issued by the Govt. department also shows the name of the society as the person who is hol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntemplated in clause (v) sub section (47) of section 2 of the I.T Act since the assessee has given the possession of the said land after receiving the entire consideration from the society. 5. In the case of ChaturbhujDwarkadasKapadia Vs. Commissioner of Income Tax [(2003) 260 ITR 491(Bom)] the Honourable Bombay High Court held that "Under s. 2(47)(v), any transaction involving allowing of possession to be taken over or retained in part-performance of a contract of the nature referred to in s. 53A of the Transfer of Property Act would come within the ambit of s. 2(47)(v). (Copy of the order enclosed at page no.6 to 7 of Volume-3 of the paper book) 6. In the case of JASBIR SINGH SARKARIA, IN RE AUTHORITY FOR ADVANCE RULINGS reported at (2007) 294 ITR 196 held that " 'transfer' within the meaning of cl. (v) of s. 2(47) envisages a transaction under which the possession of immovable property is allowed to be taken or retained in lieu of part performance of a contract falling within the scope of s. 53A of Transfer of Property Act-It is at that point of time when such possession is allowed to be taken or retained that the deemed transfer takes place-Possession ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Court of Civil Judge (Sr.DN.), Chandrapur, for grant of temporary injunction restraining the State of Maharashtra and NaibTahsildar, Warora from taking possession of the said land.(copy of the application is enclosed at page no.21 to 24 of Vol 3 of the paper book) c) The Hon,ble Court of Civil Judge (Sr. DN.), Chandrapur granted injunction vide order dated 08.10.2002 restraining the defendants from taking the possession of the said land till the decision of the suit filed by the assessee.(copy of the order is enclosed at page no.25 to 36 of Vol 3 of the paper book). d) The Civil Suit was finally decided on 31.03.2010 and the Civil Suit filed by the assesssee was DISMISSED by the Hon'ble Court with COST.(Copy of the order is enclosed at page no.37 to 43 of Vol 3 of the paper book) e) Against the said order the assessee has preferred an appeal before the Court of District Judge, Warora vide appeal dated 07.06.2010. f) The Honourable District Court vide order dated 29.02.2020 decided as under: 1) The Judgement and decree dated 31.03.2010 passsed by learned Civil Judge, Senior Division, Warora in R.C.S.no.03/2008(Old No.60/1992) is hereby se....