TaxTMI 
TaxTMI 
2022 (9) TMI 767
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....ing the action of the Ld AO of adopting the stamp duty value as on date of registration (Rs. 98,08,500/-); and 3. On the facts and in the circumstances of the case and in law the Ld CIT(A) has erred in applying the provisions of Sec 50C without benefit of the proviso inserted by Finance Act. 2016." The Appellant craves leave to add, amend, supplement, alter and/or delete any of the above Grounds of Appeal. 3. The brief facts of the case, as emanating from the record, are: The assessee is a society registered under the Maharashtra Co-operative Societies Act, vide registration no. BOM/HOUSING/1448 of 1967. For the year under consideration, assessee e-filed its return of income on 21/03/2012 declaring total income of Rs. Nil, after claiming deduction under section 80P of Rs. 2,14,164. Subsequently, on the basis of information received from CIB/AIR that assessee had purchased and sold immovable property for Rs. 1,59,91,002 and Rs. 98,08,500, respectively, during the year under consideration, which has not been declared in the return of income for assessment year 2010-11, reassessment proceedings were initiated in the case of the assessee and notice under section 148 of the Act was....
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....2,980, after adopting sale value of Rs. 98,08,500 as determined by the Stamp Duty Valuation Authorities as against actual consideration of Rs. 19,29,700 received by the assessee. In appeal, learned CIT(A) vide impugned order upheld the assessment order, by observing as under: "6.4 Thus, the main conditions for transfer as per section 2(47)(v) read with section 53A of the transfer of property Act, which are contracts to transfer for consideration any immovable property and taking over of possession of the property has not been fulfilled as on 4.10.2000 or any time after that upto 20.5.2009, as is evident hereunder- i) The letter of offer dated 4.10.2000 cannot be said to be contract as it is only an offer letter. ii) It has been discussed earlier, even the important conditions in the letter of offer have not been fulfilled by the person to whom the offer was made, thus the letter of offer was not acted upon. iii) The agreement dated 20.5.2009 was the contract, which has been signed by both the parties and have been executed by registration on 18.2.2010. Thus the letter of offer dated 4.10.2000 has not been acted upon and only the terms and conditions as per agreement dated 2....
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....dressed by the assessee to the builder and therefore, even the offer letter was not honoured by the parties. 6. We have considered the rival submissions and perused the material available on record. In the present case, the main issue for consideration is the year in which the transfer of property has taken place. As, only on the basis of determination of said issue it can be decided whether section 50C of the Act is applicable to the facts of the present case for computation of long term capital gains. As is evident from the material available on record, assessee society purchased the property from Smt. Shridevi Shridhar Mahale, vide agreement for sale dated 06/02/1969. However, as the seller of the property expired, the conveyance deed could not be executed in favour of the assessee society and the name of the society could not be entered in the land revenue records, despite the fact that the entire consideration was paid by the society to the original owner of the land. Only in the year under consideration, the legal heirs of the seller agreed to register the document and thereafter the agreement for sale was registered in favour of the assessee society. There is no dispute amo....
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....et in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India;" 8. We find that section 2(47) of the Act uses the word "or" instead of "and". Therefore, all the conditions laid down in the provisions of section 2(47) of the Act are not required to be cumulatively satisfied and even if any condition is satisfied, the capital asset can be considered to be transferred within the meaning of section 2(47) of the Act. We find that the lower authorities have relied upon clause (v) to section 2(47) of the Act in order to deny the claim of the assessee on the basis that no contract of the nature referred to in section 53A of the Transfer of Property Act, 1982 was entered amongst the parties in the assessment year 2001-02 and therefore the property cannot be said to be transferred during that year. Further, as per the Revenue, agreement was registered o....
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....ion has to be answered in the negative. However, looking at the provisions of Section 2(47) of the Act, which defines the word "transfer" in relation to a capital asset, one can say that if a right in the property is extinguished by 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 co....
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....n we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated. 25. In view of the aforestated peculiar facts of the case and looking at the definition of the term 'transfer" as defined under Section 2(47) of the Act, we are of the view that the appellants were entitled to relief under Section 54 of the Act in respect of the long term capital gain which they had earned in pursuance of transfer of their residential property being House No. 267, Sector 9-C, situated in Chandigarh and used for purchase of a new asset/residential house." 10. In the present case, as per the terms of the aforesaid offer letter dated 04/10/2000, offer letter was ac....