Case Law Details
Ambesh Shrivastav Vs ITO (ITAT Indore)
The brief facts leading to the case is this that the assessee along with 21 co-sellers sold immovable property lying and situated at Talawali Chanda to M/s. Sarthak Innovations Pvt. Ltd. The sale deed was registered under Section 2(14) of the Act on 21.10.2009 for a stated consideration of Rs.30 Lakhs in which the assessee’s proportionate share comes to only Rs. 1,36,561/-. The case of the Revenue is this that the property is situated within a distance of 8 from the municipal limits of Indore. Therefore, it is a capital asset within the meaning of Section 2(14) of the Act and capital gain is chargeable on sale of such land. The deed was registered on 21.10.2009. Therefore, the capital gain has been found chargeable for the year under consideration. The market value of the property has been assessed by the Sub-Registrar at Rs. 1,31,00,000/- as against the sale consideration of Rs.30,00,000/-. Since, the document was registered on 31.10.2009 as per guideline of the A.Y. 2010- 11, the assessment was finalized upon addition under Section 50C of the Act, which was further confirmed by the first appellate authority.
This ground of appeal has been raised against the assessment of capital gain in accordance with the deeming provisions of section 50C of the Income Tax Act, 1961 considering the total consideration of impugned capital asset at Rs.1.31 Cores as assessed by the sub registrar. The AO has discussed the issue in details at para nos. 6 to 8 of the assessment order besides considering the same while disposing of the objections raised against reopening of the assessment which is also discussed in details at para no. 4 of the assessment order. The appellant, during the course of appeal proceedings has contended that the possession of the plot under consideration was handed over to the purchaser i.e. M/s Sarthak Innovation Pvt. Ltd. on 27/11/2007 which is relevant to A. Y.2008-09. In support of the same the appellant has relied on the draft sale deed which has been signed through the POA holder on behalf of the appellant. It has further been contended that the entire sale consideration of Rs. 1,36 ,561 /- has been received in the F. Y.2007-08 in pursuance of sale deed duly submitted to the sub-registrar office for the purpose of registration. Therefore, the appellant states that all the conditions required under the provision of section 2(47) of the Income Tax Act, 1961 have been fulfilled for making the transaction complete in the F. Y. 2007-08.
Plea of Appellant cannot be accepted that the transaction was complete in A. Y. 2008-09. Similarly, the document under consideration i.e. draft sale deed presented in the office of sub-registrar can neither be treated as complete sale deed nor the agreement to sale on the strength of which it could have been said that consideration was received and possession was handed over to the purchaser of the property. Therefore, various case laws cited by the appellant have also not been found applicable on the peculiar set of facts under consideration. Therefore, considering the above stated facts and the entirety of the circumstances and relevant documents, the AO has been found justified in assessing the capital gains in the A. Y. 2010-11 when the sale deed pertaining to the land belonging to as many as 22 persons was completed by way of proper registration. The same has been worked out by the AO at Rs.5,33,255/- on the basis of deemed sale consideration of Rs.5,96,315/- under section 50C of the Income Tax Act, 1961. The addition is therefore confirmed. Therefore, all the grounds of appeal are here by dismissed.
FULL TEXT OF THE ORDER OF ITAT INDORE
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