Property registration not must for constituting ‘Transfer’ as per pre-amended section 53A of TPA Act
Case Law Details
Vasant Laxman Khandge Vs ITO (ITAT Pune)
Conclusion: Assessee had handed over possession of the property to M/s. V.S. K Associates in the year 2000 on receiving substantial part of consideration which constituted transfer u/s. 2(47)(v) read with section 53A of the TPA attracting taxability of capital gain in the A.Y. 2001-02. Thus, the same could not once again be taxed in the assessment year 2007-08.
Held: Assessee filed return for the assessment year 2007-08 declaring total income of Rs.1,16,567/-. AO received information from DCIT, Pune that assessee and his brother, had entered into a development agreement with M/s. V.S. Kolbhor & Associates for sale of land for a consideration of Rs.93,25,000/-. The sale deed was registered on 03-08-3006, on which date the stamp value was Rs.2,43,28,953/-. AO issued notice u/s.148 by holding in the assessment order that the actual date of transfer of the property was the date as per registered sale deed, viz. 03-08-2006, which fell in the previous year relevant to the assessment year under consideration. Invoking the provisions of section 50C, the AO added a sum of Rs.75,01,976/- in the total income of the assessee, being one half share of additional capital gain. On appeal. It was held that as pre-amended section 53A of the Transfer of Property Act did not require registration of a contract as a necessary condition, a fortiori is that section 2(47)(v) also could not require such condition, with sequitur that the transaction of giving possession of the property by transferor to the transferee pursuant to some contract coupled with the transferee performing his part of contract by paying full or part consideration, would complete `transfer’ at that stage thereby attracting capital gain de hors the actual registration. It was seen that assessee handed over possession of the property to M/s. V.S. Kolbhor & Associates in the year 2000 on receiving substantial part of consideration. This constituted transfer u/s. 2(47)(v) read with section 53A of the TPA attracting taxability of capital gain in the A.Y. 2001-02. As the `transfer’ took place in the said earlier year, it could not once again take place in the assessment year 2007-08 attracting taxation. Therefore, the transfer took place in the A.Y. 2001-2002 and not 2007-08, leading to taxation of capital gain only in the earlier year and not the latter.
FULL TEXT OF THE ITAT JUDGEMENT
These two appeals by different but connected assessees emanate from the orders passed by the ld. CIT(A) on 30-12-2016 and 01-12-2016 respectively in relation to the assessment year 2007-08. Since there is a common lis and similar ground in both the appeals, we are, ergo, proceeding to dispose them by this consolidated order for the sake of convenience.
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