TaxTMI 
TaxTMI 
2022 (8) TMI 1265
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....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 Shelters (P) Ltd. 4,11,279/- 6 The Learned CIT(A) erre....
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.... 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 Flat including the value of proportionate undivided share of land. 76,71,614....
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....roperty 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 portion of the whole land (7 acres 16.88 guntas) was agreed to sale on 3.2.2014 and consideration of Rs.18,54,25,000/-....
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....nt 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 with regard to disallowance of Rs.18,15,000/- paid to Bengaluru Development Authority towards the development charges and Rs.11,54,....
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....he 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 cases of Mrs. Prema P Shah & Sanjiv P Shah (supra) and Or. 6irish M Shah (supra). The provisions of section 54 of the Act which was considered by....
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....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 has held "We are of the opinion that benefit of section 54F before its amendment can be extended to a residential house purchased outside India 11. Considering the fac....
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....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 Since the Appellant, and his deceased father (died on 13.7.2015) had given the possession of the said property for development on 16.6.2014, the Appellant and his father reckoned the date of tran....
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....gistered 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 materials available on record. The issue before us relate to the year of assessability of capital gain arising on the transfer of property vide JDA dated 31.1.2014 i.e. whether it is assessable in the year in which the development agreement....
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....tion. 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(47)(v) of the Act cannot be invoked so as to bring the capital gain into tax in the assessment year 2014-15. Thus, the very foundation of the case of the revenue devoid of merits and more so, there is specific clause in the JDA as enumerated earlier tha....
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.... 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 amendment is that, on and after the commencement of the Amendment Act of 2001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of section 53A. In short, there is no agreement in the eyes of law which can be enforced under secti....
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....ny 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 is to bring within the tax net, transactions, where, though title may not be transferred in law, there is, in substance, a transfer of title in fact. [Para 22] * A reading of the JDA in the present case would show that the owner continues to be the owner throughout the agreement, and has at no stage purported to transfer rights akin to own....