Case Law Details
Mangilall Estates (P) Ltd. Vs. DCIT (ITAT Kolkata)
The dispute in question is for the transfer of the property in the manner prescribed in sub-clauses (v) introduced in section 2(47) with effect from April, 1988. In our considered view the events which had taken place constituted transfer which includes any transaction which allows possession to be taken/retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882. Thus any transaction entered into in any manner which has the effect of transferring or enabling the enjoyment of any immovable property amounts to transfer under section 2(47) of the Act. Accordingly capital gains would be taxable in the year in which such transactions are entered into, even if the transfer of the immovable property is not effective or complete by way of registration under the general law. Under section 2(47)(v ) any transaction involving allowing of possession to be taken over or retained in part performance of a contract of the nature referred to in section 53A of the 1882 Act would come within the ambit of section 2(47)(v). In order to attract section 53A, therefore, there should be an agreement for consideration; it should be in writing; it should be signed by the transferor, it should pertain to transfer of immovable property; the transferee should have taken possession of the property and the transferee should be ready and willing to perform his part of contract. Therefore, capital gains would be taxable in the year in which such transactions were entered into, even if the transfer of the immovable property was not effective or complete for want of registration under the general law. Therefore, the tax ability of capital gains at the hands of the assessee did not fall in the assessment year 2012-2013.
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-20, Kolkata dated 09.12.2014. Assessment was framed by DCIT, Central Circle-V,, Kolkata u/s 143(3)/153D of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 30.01.2014 for assessment year 2012-13.
Shri Subash Agarwal, Ld. Advocate appeared on behalf of assessee and Shri A.K. Tiwari, Ld. Departmental Representative appeared on behalf of Revenue.
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