TaxTMI 
TaxTMI 
2022 (12) TMI 75
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....y information. However, no compliance was made in respect of such notices. Thereafter, a show cause notice u/s 144 was issued 30.08.2016. Consequent to the said show cause notice, the appellant‟s AR filed return of income declaring total income of Rs. 40,200/- and agricultural income of Rs. 95,200/-. To scrutinize the return, notices u/s 143(2) and 142(1) were issued. The Ld. AO observed that the appellant had sold land and the same was in the nature of an industrial plot and hence, Long Term Capital Gain was chargeable. On the basis of the available facts, LTCG was assessed at Rs. 1,09,69,234/-. Thus, the total income was computed at Rs. 1,10,09,434/- and agricultural income of Rs. 95,200/-. 3. The ld CIT(A) upheld the addition while holding in para No. 5.4 as under:- "5.4 Decision This ground is against the assessment of capital gain of Rs. 1,09,69,234/-. In this regard, it has been explained that though in the sale deed the land has been declared to be an industrial plot, it was actually an agricultural land. It has also been explained that in the case of Shri Jitendra Kumar Singh, Ld. CIT (A) Ghaziabad had examined the facts and held that the sold lan....
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....t or by use of electronic clearing system through a bank account, on or before the date of the agreement for transfer. This proviso is essentially clarifactory in nature and hence would apply with retrospective effect. Therefore, it can be said that for the purpose of computing the full value of consideration, the value assessable by the stamp valuation authority on the date of "agreement to sell should be taken. Here, we must note that part of the consideration (Rs. 60,00,000/-) was paid by cheque on the date of agreement. Thus, the most necessary condition as prescribed for applying the aforesaid proviso has been fulfilled. Now, we have to see what would be the value assessable by the stamp valuation authority on the date of the agreement. It is noted that the land use was changed after the agreement was signed. Therefore, on the date of agreement, land use was still agricultural only. This is also apparent from a perusal of the revenue records. Hence, the stamp value assessable on the agreement date, would be the circle rates applicable to agricultural lands for that year. It has been found that the circle rates for agricultural land prevailing during the F.Y. 2008-09 w....
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.... urged at the time of the hearing, the appeal may be allowed and justice rendered." 5. Heard. As the case was called for hearing none appeared on behalf of the assessee, however, a written submission on behalf of the assessee is placed on record with a request to adjudicate the appeal on the basis of written submission. On behalf of the assessee it has been submitted in written submission that plot has treated as industrial plot only for the purpose of sale deed as purchaser has purchased an agricultural land for industrial purpose. It has been submitted that the ld CIT(A) completely ignored the fact that land sold was an agricultural land at the time of execution of the agreement to sell duly signed and registered on 02.07.2008 and the use of land sold was changed subsequently on 10.07.2008 and treated it as industrial land for the purpose of sale deed executed on 18.09.2008. It was submitted that the Tax Authorities below should have considered the agreement to sale dated 02.07.2008 as the relevant date to consider the nature of land to be an agricultural land. In this context reliance is placed on the judgment of Allahabad High Court CIT Vs. Smt. Sanjeeda Begum and the coordi....
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....e date of registration of sale deed. Specially in present case where on date of agreement admittedly the nature of land was agricultural for the purpose of Section 2(14) of the Act while it had converted to industrial land at the date of Sale deed. 9. In this context this bench takes note of clause (v) of section 2(47) of the Act which provides that if a "transfer‟ involves handing over of possession of any immovable property in part performance of a contract of the nature referred to in section 53A of the TP Act 82 that shall be included in the definition of transfer of capital asset. In the case in hand although fact of registration of agreement to sale is not disputed however, the possession was not handed over. Thus, strictly speaking provisions of section 53A of the TP Act are not applicable. There was no deemed transfer. 10. Further, when section 2(47) of the Act specifically deals with "sale‟ under clause (i) to section 2(47) and of the "agreement to sale‟ of property under clause (v) then the assessee cannot plead of being covered under clause (ii) of section 2(47) dealing with the extinguishment of any right. 11. Then reference needs to be made t....
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....ch question had to be answered in the negative. The Hon‟ble Supreme Court, thereafter, referred to the provisions of Section 2(47) of the Act giving expanded meaning to the term "transfer" and further observed in light of the said definition that one can come to the conclusion that some right in respect of the capital asset in question had been transferred and that such right with respect to the capital asset had been extinguished, after execution of the agreement to sale. The Hon‟ble Supreme Court also observed that, no doubt, such contractual right can be surrendered and neutralized by the parties by subsequent contract or conduct. But, such was not the case on hand. The Hon‟ble Supreme Court also noted that the sale deed could not be executed for the reason that the assessee had been prevented from dealing with the residential house by an order of the competent Court. The Hon‟ble Supreme Court, in view of such peculiar facts of the case and looking to the definition of "transfer" u/s.2(47) of the Act, was of the view that the assessee was entitled to relief u/s.54 of the Act. 14. This judgment, is contrary to what has been canvassed by this bench, earl....