TaxTMI 
TaxTMI 
2023 (5) TMI 1494
X X X X Extracts X X X X
X X X X Extracts X X X X
....iny relating to the previous year relevant to the assessment year under consideration and consequently erred in re-computing the taxable total income without assigning proper reasons and justifications. 3. The CIT (Appeals) failed to appreciate that the transfer within the scope of Section 2(47) of the Act took place during the assessment year under consideration for the purpose of validating the reckoning capital gains/loss especially in view of the possession being handed over during the previous year relating to the assessment year 2015-16. 4. The CIT (Appeals) failed to appreciate that the sale agreement entered into during the assessment year 2014-15 was unregistered thereby vitiating the presumption of transfer within the scope of Section 2(47)(v) of the Act and further ought to have appreciated the judicial trend in this regard would negate the presumption of transfer during the assessment year 2014-15 especially in view of the ownership being intact with the Appellant during assessment year 2014-15. 5. The CIT (Appeals) failed to appreciate that in any event the Assessing Officer having not disputed the claim of the capital loss, the denial of suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment year, the entitlement of such TDS credit in the subsequent assessment year namely the assessment year under consideration would get fortified thereby negating the interpretation attempted in the impugned order. 11. The CIT (Appeals) failed to appreciate that there was no proper opportunity given before passing of the impugned order and any order passed in violation of the principles natural justice would be nullity in law. 12. The Appellant craves leave to file additional grounds/arguments at the time of hearing. 3. The brief facts of the case are that the assessee company is engaged in the business of real estate development filed its return of income for AY 2015-16 on 29.09.2015 admitting total income of Rs. NIL after claiming current year loss of Rs. 19,96,80,144/-. The case was selected for scrutiny and during the course of assessment proceedings, it is seen from the P&L A/c that the assessee company had debited a sum of Rs. 14.77 Crs. towards loss on sale of land and disallowed the same in the statement of computation of total income. It was further noted that the assessee had claimed long term capital loss of Rs. 19,94,46,822/- towards sale of land. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tained disallowance of capital loss for AY 2015-16. In so far as disallowance of credit for TDS, the Ld.CIT(A) by referring Rule 37BA(1) of Income Tax Rules, 1962, and Sec.199(3) of the Act, opined that credit for TDS can be given only in the year in which income pertains to said TDS is offered to tax. Since, capital loss is not included in the income for AY 2015-16, the credit for TDS cannot be allowed to the assessee. Therefore, rejected arguments of the assessee and upheld rejection of credit for TDS for AY 2015-16. Aggrieved by the order of the Ld.CIT(A), the assessee is in appeal before us. 5. The Ld.Counsel for the assessee submitted that the Ld.CIT(A) erred in sustaining disallowance of capital loss amounting to Rs. 19,94,46,822/- upon negating the claim of transfer happen relating to the property and scrutiny for the previous year relevant to the AY under consideration ignoring specific provisions of Sec.2(47)(v) r.w.s.53A of Transfer of Property Act, 1882, where, it has been clearly held that any transaction which involves transfer of possession of property shall be regarded as transfer which allows possession of any immovable property in part performance of contract of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9,94,46,822/- on the ground that the possession of the property has been handed over to the buyer in the FY 2014-15 relevant to the AY 2015-16 alone and to justify their stand filed confirmation from the buyer, where it has been stated that the possession of the property has been taken over on 18.04.2014. The AO disallowed capital loss computed by the assessee from transfer of property for AY 2015-16 on the ground that transfer as defined u/s.2(47)(v) of the Act, took place for AY 2014-15, because, entire sale consideration of Rs. 40 Crs. has been paid by buyer to the seller in the FY 2013-14 itself. 8. We have given our thoughtful consideration to the reasons given by the AO to disallow capital loss for AY 2015-16 in light of arguments advanced by the Ld.Counsel for the assessee and we ourselves do not subscribe to the reasons given by the AO, for the simple reason that as per definition of transfer as defined u/s.2(47)(v) of the Act, any transaction involving allowing of the possession of any immovable property to be taken or retained in part performance of contract of the nature referred to sec.53A of Transfer of Property Act, 1882, or any transaction which has the effect of ....