AI Drafter 
TaxTMI 
TaxTMI 
2022 (8) TMI 1265
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....the Appellant is only Rs.18,54,25,000/-. 7,55,836/- 3 The Learned Appellate Commissioner ought to have upheld the Sale Consideration of Rs.13,38,43,718/- being the Sale Consideration relatable to 6 Acres 35.10 Guntas out of the total sale consideration of Rs.20,16,17,000/- paid to the Appellant for the total area of 10 Acres 14.40 Guntas sold by the Appellant during the previous year relevant to AY 2014-15 (6 acres 35.10 Guntas) and 2015-16 (3 acres 19.30 guntas) of lands at Poojanahalli. 1,24,44,155/- 4 The Learned Appellate Commissioner erred in failing to take cognizance of the fact that the Appellant received in all a sum of Rs.20,16,17,0000/- for the total lands at Poojanahalli sold by the Appellant during the Previous year relevant to A.Y. 2014-15 and 2015-16. 1,24,44,155/- 5- The Learned CIT(A) erred in confirming the disallowance of deduction of the sum of Rs.18,15,000/- paid by the Appellant to the BIA Development Authority towards the Development Charges for the Poojanahalli Lands u/s 48 (i) of the Act by misconstruing the decision of the Hon. Supreme Court in the Case of Goetz (India) Ltd and of the Hon. High Court of Karnataka in Unique Shelte....
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.... case. 1,73,28,311/- 12. The Learned CIT(A) erred in rejecting the Appellant's claim for estimate of the Consideration due under the Joint Development Agreement other than the Non- Refundable Deposit by adopting the Construction Rate of Rs.2,000/- per Sq. Ft. for built-up area received under the JDA which is more than the rata prescribed in the Notification dated 3.7.2013 bearing No.CVC 24 of 2013-14 issued by the Central Valuation Committee constituted u/s 45B of the Karnataka Stamp Act, 1957, which came in to effect from 12.8.2013. 76,71,614/- 13. The Learned CIT(A) erred in sustaining the estimate of the Consideration due under the Joint Development Agreement other than the Non-Refundable Deposit by adopting the Consolidated Rate of Rs.8,550/- per Sq. Ft. of built-up area with complete disregard to the facts of the case and to the Notification dated 3.7.2013 bearing No.CVC 24 of 2013-14 issued by the Central Valuation Committee constituted u/s 45B of the Karnataka Stamp Act, 1957, which came in to effect from 12.8.2013 and with complete disregard to the fact that the rate of Rs.8,550/- adopted is for the sale of each Square Feet of the Built-up area of the ....
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.... 5.9.2019 before us. "Sharing agreement dated 26.10.2016 between the assessee and developer regarding property No.123, Infantry Road, Bengaluru" 3. However, at the time of hearing, the assessee not pressed admission of additional evidence. Accordingly, additional evidence are dismissed as not pressed. 4. Ground No.1 is general in nature. Ground Nos.3 & 4 not pressed and accordingly, dismissed as not pressed. 5. Ground No.2 is with regard to the upholding the sale consideration of Rs.18,87,60,552/- for computing the long term capital gain from the sale of 6 acres and 25.10 guntas of land at Pujanahalli, Devanahalli village, Bengaluru District disregarding the fact that proportionate sale value received there for is only Rs.18,54,25,000/-. 5.1 Facts of the case are that the assessee has taken the sale consideration of 7 acres 16.68 guntas for consideration of Rs.18,54,25,000/- vide sale agreement dated 3.2.2014. However, by way of another agreement dated 2.4.2014, the earlier agreement dated 3.2.2014 has been cancelled and therefore, agreement is effected for the transfer of whole 11 acres and 25 guntas for a total sale consideration of Rs.20,16,17,000/-. Thus, a....
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....e submitted that the AO has considered the land transferred in the assessment year 2014-15 at Rs.18,54,25,000/- as per amount reflected in form 26AS relating to assessment year 2014- 15 and he drew our attention to pages Nos.134 & 135 of paper book- I. 5.3 Ld. D.R. relied on the order of the Ld. CIT(A). 5.4 We have heard the rival submissions and perused the materials available on record. The assessee in the grounds of appeal has raised that sales consideration should be at Rs.13,38,43,715/- instead of at Rs.18,87,60,552/-. However, the assessee made it clear in the written submission that the sale consideration to be considered at Rs.18,54,25,000/- as per amount reflected in form No.26AS relating to assessment year 2014-15. In our opinion, the argument of assessee's counsel is to be verified with reference to the form No.26AS filed before us. Accordingly, we direct the AO to consider sales consideration as reflected in form No.26AS relating to assessment year 2014-15 for the purpose of computation of capital gain on transfer of property at Pujanahalli, Devanahalli village, Bengaluru district. This ground of the appeal of the assessee is allowed. 6. Ground Nos.5 & 6 are wi....
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....ble Supreme Court in the case of Goetz (India) Ltd. Cited (supra). Against this assessee is in appeal before us. 7.1 We have heard the rival submissions and perused the materials available on record. Similar issue came for consideration before this Tribunal in the case of Dr. Sunita Aggrawal in ITA No.840/Bang/2012. The Tribunal vide order dated 18.1.2013 held as under:- "4.5.4 On a plain reading of the provisions of section 54F of the Act, we do not find anything therein to suggest that the new residential house acquired should be situated in India. The jurisdictional High Court in the case of Director of Income Tax (International Taxation) Vs. Jennifer [Aide in ITA No.169/2001 has held that introducing a word which is not there into a section amounts to legislating when Parliament has not used these words in the said section. In view of this decision, we are precluded from reading the words "In India" into section 54F of the Act, when Parliament in its legislative wisdom has deliberately not used the word 'in India' in section 54F of the Act. Therefore, in view of the discussion above, we follow the latter decisions of the Mumbai Benches of the ITAT in the cas....
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....ter, we allow the assessee's claim for exemption under section 54F of the Act since all conditions laid down in this section are satisfied for availing of the said exemption." 7.3 Further, in the case of Harvinder Singh Vs. ACIT in ITA No.728/Del/2017 dated 4.2.2019, wherein held as under: 9. "We have given thoughtful consideration to the orders of the authorities below. The undisputed fact is that by selling the property situated in India, the assessee has purchased a residential property in Auckland, New Zealand. It is equally true that the amendment has been brought in section 54 vide Finance Act, 2014 w.e.f 01.04.2015. We are of the considered opinion that the Legislature, in its wisdom, has given effect to the amended provision from 01.04.2015 and, therefore, there is no ambiguity as the said provisions are effective from A.Y 2015-16. 10. Similar view was taken by the Authority for Advance Rulings, New Delhi in the case of Dipankar Mohan Ghosh [supra]. Moreover, we find that the decision heavily relied upon by the first appellate authority has been reversed by the Hon'ble High Court of Gujarat in 392 ITR 18. We find that the Hon'ble High Court ....
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....is assessment year 2014-15 only. Against this assessee went in appeal before Ld. CIT(A) who has confirmed the order of AO. Against this assessee is in appeal before us. 10.1 The Ld. A.R. submitted that the assessee and his father Late Mr. Abdul Rahim Nizamuddin (who died on 13.7.2015), the joint owners of the Residential Property No.123, Infantry Road, Bengaluru 560 001 offered the said Residential House Property for Joint Venture with m/s Rajarajeshwari Buildcon Pvt. Ltd., to develop the same into a Residential Apartment Complex in terms of the Registered Joint Development Agreement (JDA) dated 31.1.2014. 10.2 As per clause 2.1 of the JDA the owners had agreed to give the possession of the old property unto the Developer for Development on or before 31.3.2014. As per para 2.2 such possession shall not be construed as delivery of possession as contemplated u/s 53A of the Transfer of Property Act read with section 2(47)(v) of the Income Tax Act, 1961. 10.3 However, for certain obvious reasons the Appellant and his father delivered the vacant possession of the old Property on the 16.6.2014 as evidenced by the Declaration of Transfer of Possession dated 7.6.2014. 10.4 Sinc....
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....held that "Therefore, on mere entering in to a joint development agreement there is no transfer. The "transfer" in the Income Tax Act takes places on the date the possession of the property is delivered though not a registered document is executed conveying the title." (d) Thus the possession of the old asset having been delivered only on 16.6.2014 the transfer as contemplated in section 2(47) takes place only on 16.6.2014 and thus the transfer occurred in the previous year relevant to the A.Y.2015-16 and not in A.Y.2014-15; and (e) This apart the new provision contained in Section 45(5A) which has come in to effect from 1.4.2018 stipulates the date of transfer as the date on which the Certificate of Completion of the new asset is obtained. 10.8 Therefore the Appellant urges that the date of transfer as contemplated u/s 2(47)(v) be taken as 16.6.2014 and the resultant capital gains under the JDA be brought to charge in the A.Y.2015-16 as declared and returned by the Appellant and accordingly the impugned order be set aside. 10.9 On the other hand, Ld. D.R. relied on the order of lower authorities. 11. We have heard the rival submissions and perused the ma....
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....acts, the legal possession of the impugned property was continued with the assessee in the AY 2014-15. The assessee has not received constructed portion of his share of building and the construction also not started in the assessment year under consideration. There is no evidence to suggest that the developer has started any activity relating to the construction in the impugned property. The developer also not taken any steps to secure the building plan in the assessment year under consideration. The A.O. has also not brought anything on record to show that there is a development activity in the impugned property during the assessment year 2014-15 and any cost of construction was incurred by the developer. It has to be inferred that no investment by the developer in the construction activity during the assessment year 2014-15. Hence, we are of the opinion that transferee was not willing to perform its part of obligation as stipulated in the JDA in the assessment year 2014-15 out of the meaning as expressed in section 53A of the TP Act. As such, the contractual obligation of the developer was not made within the assessment year 2014-15. Being so, the condition laid down in section 2....
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.... also well-settled that the protection provided under section 53A is only a shield, and can only be resorted to as a right of defence. An agreement of sale which fulfilled the ingredients of section 53A was not required to be executed through a registered instrument. This position was changed by the Registration and Other Related Laws (Amendment) Act, 2001. Amendments were made simultaneously in section 53A of the Transfer of Property Act and sections 17 and 49 of the Indian Registration Act. By the aforesaid amendment, the words 'the contract, though required to be registered, has not been registered, or' in section 53A of the 1882 Act have been omitted. Simultaneously, sections 17 and 49 of the 1908 Act have been amended, clarifying that unless the document containing the contract to transfer for consideration any immovable property (for the purpose of section 53A of 1882 Act) is registered, it shall not have any effect in law, other than being received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by a registered instrument. [Para 19] • The effect of the aforesaid amendme....
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....cts of this case, there is no need to go into any other factual question. [Para 20] • However, the High Court has held that section 2(47)(vi) will not apply for the reason that there was no change in membership of the society, as contemplated. One cannot agree with the High Court on this score. Under section 2(47)(vi), any transaction which has the effect of transferring or enabling the enjoyment of any immovable property would-come within its purview. The High Court has not adverted to the expression 'or in any other manner whatsoever' in sub-clause (vi), which would show that it is not necessary that the transaction refers to the membership of a cooperative society. It is, therefore, necessary to see whether the impugned transaction can fall within this provision. [Para 21] • The object of sectio.2(47)(vi) appears to be to bring within the tax net a de facto transfer of any immovable property. The expression 'enabling the enjoyment of takes colour from the earlier expression 'transferring', so that it s clear that any transaction which enables the enjoyment of immovable property must be enjoyment as a purported owner thereof. The idea....
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....veloper on execution of JDA. The assessee has to receive Rs.7.5 crores as refundable deposit, out of this assessee has received in this assessment year an amount of Rs.3.75 crores and balance Rs.3.25 crores to be received by assessee within 4 months from the date of execution of JDA dated 31.1.2014 and another balance Rs.50 lakhs shall be to the first party at the time of handing over the superbuilt up area of 10,337 sq.ft. to the owners. Being so, the capital gains as a result of this JDA can arise only at point of receipt of consideration by the assessee and not on the date of JDA. More so, in the absence of any act in furtherance of contract by the developer, it cannot be held that transfer did took place u/s 2(47)(v) of the Act in the assessment year under consideration. Being so, we are of the opinion that capital gain arising out of the impugned JDA dated 31.1.2014 to be taxed in the assessment year 2015-16 only and not in assessment year 2014-15. More so, it is already subject to tax in the assessment year 2015-16 and cannot be brought to tax in the assessment year 2014-15, which amounts to double taxation. Accordingly, this ground of appeal of assessee is allowed. 12. Gr....