Case Law Details
M/s Rajasthan Agencies Pvt. Ltd. Vs ITO (ITAT Jaipur)
Holding period for purpose of transfer u/s 2(47) was to be considered from the time of agreement to sale instead of execution of sale deed
Conclusion: Assessee was entitled to claim long term capital gain arising from the sale of the land as transfer as per provisions of section 2(47) was to be considered at the time of agreement dated 11.04.2007 instead of execution of sale deed 13.04.2010 because agreement to sale dated 11.04.2007, conversion of land use by JDA on 03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010 were interlinked and inseparable chain of events necessary for transaction of transfer.
Held: During scrutiny assessment, AO noted that assessee-company had purchased agricultural land vide sale deed dated 13.04.2010. Assessee claimed long term capital gain arising from the sale of the land. AO rejected the claim of the assessee and held that the land was purchased by the assessee vide sale deed date 13.04.2010 and therefore computed the short term capital gain as per the provisions of Section 50C. Asessee filed the appeal before CIT(A) and CIT(A) held that the land sold by assessee was an agricultural land and prior to its conversion to non agriculture use. The agricultural land belonging to Schedule caste could not be transferred as barred by Section 42 of Rajasthan Tenancy Act 1955 which prohibits the sale, gift or bequeath by a member of Scheduled caste in favour of any person who was not a member of schedule caste. Accordingly, CIT(A) had confirmed the treatment of capital gain as short term capital gain. On appeal before Tribunal. It was held transfer of immovable property would be considered as a combined act of agreement to sale and sale deed as a single transaction of transfer with effect from the date on which such transaction was intended and conceived by the parties to the transaction. Hence, agreement to sale dated 11.04.2007, conversion of land use by JDA on 03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010 were interlinked and inseparable chain of events necessary for transaction of transfer. The possession was handed over and consideration was received prior to the date of sale deed. The parties were very much aware about the need of conversion of land use and accordingly applied to JDA for conversion which was granted in the month of February, 2010 and thereafter the sale deed was executed. Hence, the transfer as per provisions of section 2(47) of the Act was to be considered at the time of agreement dated 11.04.2007. The intention of the parties could be gathered from the terms of the agreement, subsequent performance by the parties in terms of agreement getting the land converted to non agricultural use and execution on sale which had reaffirmed the status of the parties to the agreement and the transfer under the agreement instead of altering the same. When agreement to sale in respect of immoveable property is executed, a right in personae is created in favour of the vendee and thereby the vendor is restrain from selling the property to someone else because the vendee gets the legitimate right to enforce specific performance of the agreement. Thus, the transfer of the land in question would be regarded as on the date of agreement to sale dated 11.04.2007.
FULL TEXT OF THE ITAT JUDGEMENT
These two appeals by the assessee are directed against the composite order of CIT(A), Jaipur dated 27.02.2017 for the assessment years 2011-12 & 2012-13. For the assessment year 2011-12 the assessee has raised the following grounds:-
“1. The Ld. CIT(A) has erred on fact and in law in confirming the action of the AO in taking the date of purchase of land as 13.04.2010 as against the date of acquisition of land of 11.04.2007 when the land was purchased and the possession was received in terms of agreement to sale of even date and thereby, assessing the gain on sale of the land as Short Term Capital Gain instead of Long Term Capital Gain claimed by the assessee.
2. The Ld. CIT(A) has erred on fact and in law in adopting the deemed sale consideration of the land u/s 50C at Rs. 3.16 Crores on the basis of the report of DVO which is based on the value determined by the Sub-Registrar and not the fair market value o f the land as required u/s 50C(2). He has further erred in not appreciating the various objections raised by the assessee on the report of the DVO and also the fair Market value of the land determined by the registered valuer and thereby, upholding the capital gain determined by the AO at Rs. 2,68,37,200/-.
3. The Ld. CIT(A) has erred on fact and in law in considering the cost of purchase/improvement at Rs. 47,62,800/- as against Rs. 56,70,055/- claimed by the assessee.
4. The Ld. CIT(A) has erred on fact and in law in holding that the agricultural land sold by the assessee is a capital asset by not considering that the land was situated beyond 8 Kms of the municipal limits as per Notification No. 9447 dt. 06.01.1994.
5. The assessee crave to amend, alter and modify any of the grounds of appeal.
6. The appropriate cost be awarded to the assessee. ”
2. Ground No. 1 is regarding the long term capital gain arising from sale of land was treated by the AO as short term capital gain. The assessee is a company and engaged in the business of agency. The assessee filed its return of income for the assessment year 2011-12 & 2012-13 declaring total income at Rs. 9,83,704/- and loss of Rs. 29,06,564/- respectively. The case was selected for scrutiny and during the scrutiny assessment the AO noted that the assessee company has purchased agricultural land vide sale deed dated 13.04.2010. The assessee sold the land vide sale deed dated 07.03.2011 and 04.05.2011 and claim long term capital gain arising from the sale of the land. The AO rejected the claim of the assessee and held that the land was purchased by the assessee vide sale deed date 13.04.2010 and therefore computed the short term capital gain as per the provisions of Section 50C of the Act. Aggrieved by the action of the AO to consider the date of purchase of the land as on 13.04.2010 as against 11.04.2007 the assessee filed the appeal before the ld. CIT(A). The assessee contended before the ld. CIT(A) that when the assessee acquired the land in question vide agreement for sale dated 11.04.2007 against the full consideration and possession of the land was handed over to the assessee at the time of execution of the said agreement then, the date of purchase of land shall be taken as on 11.04.2007. The ld. CIT(A) did not accept the contention of the assessee and held that the land sold by the assessee was an agricultural land and prior to its conversion to non agriculture use. The agricultural land belonging to Schedule caste cannot be transferred as barred by Section 42 of Rajasthan Tenancy Act 1955 which prohibits the sale, gift or bequeath by a member of Scheduled caste in favour of any person who is not a member of schedule caste. Accordingly, the ld. CIT(A) has confirmed the treatment of capital gain as short term capital gain.
3. Before us, the ld. AR of the assessee has submitted that the assessee purchased an agricultural land at village Newata, Tehsil Sanganer, Jaipur from Mohan, Laxman, Ramu, Jagdish and Prabhu measuring 2.74 hectares for Rs. 50 lacs vide agreement to sale dated 11.04.2007. The assessee took the possession of the land in terms of the agreement and paid purchase consideration. The ld. AR has contended that in the books of accounts the assessee accounted the land as farm house land. Thereafter the assessee through the vendors/owners of the land moved application to Jaipur Development Authority (JDA) for converting the agricultural land into farm house land. The conversion charges are paid by the assessee and debited in the respective land account. The Jaipur Development Authorities (JDA) accordingly issued conversion of land used in the name of the original land owner on 03.02.2010 and 05.02.2010 respectively. Thereafter to sale deed was executed by the owners of the land in favour of the assessee on 13.04.2010. The assessee sold the farm house land on measuring 18,897.50 sq. yd. on 07.03..2011 to M/s Sona Engineering Pvt. Ltd. for a consideration of Rs. 1,88,97,500/- and land measuring 1.16 hectare converted into 13,594 sq. yd. on 04.05.2011 to M/s Galaxy Greem Power Pvt. Ltd. for a consideration of Rs. 2,30,88,000/-. The capital gain arising from these two sales were offered as long term capital gain for the assessment year 2011-12 & 2012-13 respectively. The ld. AR has referred to clause-5 of the agreement and submitted that the assessee was handed over the physical possession of the land as as per clause 3 of the agreement dated 11.04.2007. The sellers of the land accepted that the sale deed would be executed as directed by the assessee. Thus, the transfer of land from original owners to assessee was completed as per terms of section 2(47) (v) of the Act and therefore, the holding period needs to be considered from 11.04.2007 and not from 13.04.2010. He has further submitted that as per section 53A of transfer of property Act, where the transferee in part performance of the contract has taken possession of the property and willing to perform his part of the contract then the transferor shall be debarred enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession. From the agreement dated 11.04.2007 it is evident that the assessee has taken the possession of the property and was willing to perform his part of contract. In fact the entire consideration of Rs. 50 lacs as per agreement was paid by the assessee by 29.09.2008 and thus, there is transfer of land to the assessee u/s 2(47) of the Act on 11.04.2007. The ld. AR has further contended that the sale deed dated 13.04.2010 mentions the cheque number and dates as well as the amount by which the assessee paid the consideration. Therefore, when the assessee paid the consideration as per agreement dated 11.04.2007 then the transaction of transfer of land was completed on 11.04.2007 enabling the assessee to enjoy the immovable property in question. The agreement to sale dated 11.04.2007 coupled with possession and payment of sale consideration has effect of transfer and enabling enjoyment of immovable property in favour of the assessee. Therefore, as per the provisions of section 2(47) of the Act the date of acquisition of property by the assessee is 11.04.2007. Section 2(47) stipulates a defacto transfer of any immovable property. A transfer is completed if the conditions as provided u/s 2(47) (vi) are satisfied though title may not have been transferred in law, there is in substance a transfer of title in fact. The assessee in the present case has become defacto owner of the property in as much as agreement to sale coupled with possession thereof has enabled it to enjoy the land as its owner and thus in substance there is a transfer though may not be in law. Accordingly, the holding period needs to be considered from 11.04.2007 and consequently the gain arising on sale of the land is a long term capital gain.
4. On the other hand, ld. DR has submitted that the provisions of section 53A of transfer of property Act cannot be applied in the case the assessee where the property cannot be transferred legally until and unless the same is converted from agricultural land to non agricultural one. The sellers of the agricultural land belongs to Scheduled caste community and therefore, as per section 42 of Rajasthan Tenancy Act 1955 any the sale, gifts or bequeath of the land is prohibited in favour of any person who is not a member of Scheduled caste and schedule Tribe. The purchase agreement dated 11.04.2007 is not legally enforceable and therefore would not constitute transfer of land in question as per the provisions of section 2(47) of the Act. The ld. DR has further submitted that as per Registration Act, 1908 any contract for transfer of immovable property for the purpose of section 53A of transfer of property Act shall be registered if the said contract has been executed on or after commencement of registration and other related law Amendment Act 2001 and therefore, if the agreement for transfer of land is required to be registered. He has relied upon the orders of the authorities below.
5. We have considered the rival submissions as well as relevant material on record. The assessee claimed to have purchased the agricultural land measuring 2.74 hectare at Newata, Tehsil Sanganer, Jaipur vide agreement dated 11.04.2007 for a consideration of Rs. 50 lacs. As per clause-2 of the agreement the assessee paid Rs. 40,00,000/- vide three pay orders dated 10.04.2007 and one cheque dated 11.04.2007 of Rs. 10 lacs each. The details of the payments given in clause 2 are as under:-
Thus, it is clear that out of the total consideration of Rs. 50 lacs the assessee paid Rs. 40 lacs at the time of agreement. The vendors have also acknowledged receipt of the consideration of Rs. 40 lacs. As per clause 5 of the agreement the possession of the land was handed over to the assessee as under:-
The balance consideration of Rs. 10 lacs was paid on 29.09.2008 thus, it was not disputed that that part consideration was paid by the assessee at the time of agreement dated 11.04.2007. The possession of the land was also handed over to the assessee in part performance and consequently the land was available to the assessee for enjoyment. It is also not disputed that after the possession handed over to the assessee the assessee carried out some development work and the said expenditure was disallowed by the AO on the ground that it is prior to the execution of sale deed dated 13.04.2010. There is no quarrel that section 42 of Rajasthan Tenancy Act, 1955 prohibits sale, gift or bequeath of agricultural land by a member of scheduled caste in favour of a person who is a not a member of scheduled caste however, when for the purpose of transfer of the property the land was converted from agricultural to non agricultural use then, the provisions of section 42 of Rajasthan Tenancy Act are undisputed not applicable once, the land was converted to non agricultural use.
6. Even otherwise the term transfer as per section 2(47) r.w.s. 48 of the of the Income Tax Act is wider than the term sale and it includes all rights and privileges in the property either in praesenti or accruing in future as vested in vendor. Once these rights vested in the vendor were subject matter of the transfer, the vendor retains no right in the property to be re-conveyed in the subsequent sale deed except the obligation to get the property converted for non agricultural use and execution of the sale deed. The intentions of the parties are relevant and must be ascertained from a document as a whole. Where the deed of transfer has been executed though in violation of law prescribing for a previous sanction or subsequent validation by a competent authority and though not registered would still attract the application of doctrine of part performance. In the case in hand since, the agricultural land could not be sold in view of section 42 of the Rajasthan Tenancy Act, therefore, the parties entered into an agreement to sale dated 11.04.2007 and thereafter the lands were converted into non agricultural land and more specific Farm House Land on 03.02.2010 and 05.02.2010 and thereafter the sale deed was executed by the vendors on 13.04.2010. As it is clear from these act and events that it is continuous process of transfer which begins with the agreement to sale dated 11.04.2007, conversion of the land use on 03/05.02.2010 and ultimately execution on sale deed on 13.04.2010. The sale deed dated 13.04.2010 is a performance of obligation under the agreement to sale dated 11.04.2007, therefore, the conversion of the land after the execution of agreement to sale is a post facto conversion and the transfer would effects from the date of agreement to sale specifying all the conditions as stipulated u/s 2(47) (v) of the Act r.w.s. 53A of the Transfer of Property Act. Once, the sale deed is executed in pursuant to agreement to sale and all the conditions stipulated u/s 2(47) of the Act are satisfied it would constitute transfer and would be effective from the date of agreement to sale itself.
7. Though as per the amendment brought to the registration Act 1908 vide amendment Act 2001 an agreement for sale of any immovable property without registration shall have no effect of transfer however, the agreement in question has to be seen along with the sale deed executed subsequently. It is not a case of transfer based only on unregistered documents but in this case the parties to the agreement have executed sale deed in performance of the agreement. Therefore, the transfer of immovable property would be considered as a combined act of agreement to sale and sale deed as a single transaction of transfer with effect from the date on which such transaction was intended and conceived by the parties to the transaction. Hence, agreement to sale dated 11.04.2007, conversion of land use by JDA on 03.02.2010 and 05.02.2010 and execution sale deed dated 13.04.2010 are interlinked and inseparable chain of events necessary for transaction of transfer. The contents of the sale deed dated 13.04.2010 clearly show that it is in furtherance of agreement dated 11.04.2007. The sale deed clearly states that made of payment of consideration as per the details given in the agreement dated 11.04.2007. Therefore, the possession was handed over and consideration was received prior to the date of sale deed. The sale deed in fact ratify the transaction of transfer vide agreement dated 11.04.2007. The parties were very much aware about the need of conversion of land use and accordingly applied to JDA for conversion which was granted in the month of February, 2010 and thereafter the sale deed was executed. Hence, the transfer as per provisions of section 2(47) of the Act is to be considered at the time of agreement dated 11.04.2007. The intention of the parties can be gathered from the terms of the agreement, subsequent performance by the parties in terms of agreement getting the land converted to non agricultural use and execution on sale which has reaffirmed the status of the parties to the agreement and the transfer under the agreement instead of altering the same. The Hon’ble Supreme Court in case of Sanjay Lal vs. CIT 365 ITR 389 while considering the question as to whether the date on which agreement for sale was executed could be considered the date on which the property was transfer has held in para 20 to 25 as under:-
“20. The question to be considered by this Court is whether the agreement to sell which had been executed on 27th December, 2002 can be considered as a date on which the property i.e. the residential house had been transferred. In normal circumstances by executing an agreement to sell in respect of an immovable property, a right in personam is created in favour of the transferee/vendee. When such a right is created in favour of the vendee, the vendor is restrained from selling the said property to someone else because the vendee, in whose favour the right in personam is created, has a legitimate right to enforce specific performance of the agreement, if the vendor, for some reason is not executing the sale deed. Thus, by virtue of the agreement to sell some right is given by the vendor to the vendee. The question is whether the entire property can be said to have been sold at the time when an agreement to sell is entered into. In norma l circumstances, the aforestated question has to be answered in the negative. However, looking at the provisions of Section 2(47) of the Act, which defines the word “transfer” in relation to a capital asset, one can say that if a right in the property is extinguished by execution of an agreement to sell, the capital asset can be deemed to have been transferred. Relevant portion of Section 2(47), defining the word “transfer” is as under:
‘2(47) “transfer”, in relation to a capital asset, includes,-
(i)** ** **
(ii) the extinguishment of any rights therein; or. . . . . . . . . . . . . ‘
21. Now in the light of definition of “transfer” as defined under Section 2(47) of the Act, it is clear that when any right in respect o f any capital asset is extinguished and that right is transferred to someone, it would amount to transfer of a capital asset. In the light of the aforestated definition, let us look at the facts of the present case where an agreement to sell in respect of a capital asset had been executed on 27th December, 2002 for transferring the residential house/original asset in question and a sum of Rs. 15 lakhs had been received by way of earnest money. It is also not in dispute that the sale deed could not be executed because o f pendency of the litigation between Shri Ranjeet Lal on one hand and the appellants on the other as Shri Ranjeet Lal had challenged the validity of the Will under which the property had devolved upon the appellants. By virtue of an order passed in the suit filed by Shr i Ranjeet Lal, the appellants were restrained from dealing with the said residential house and a law-abiding citizen cannot be expected to violate the direction of a court by executing a sale deed in favour of a third party while being restrained from doing so. In the circumstances, for a justifiable reason, which was not within the control of the appellants, they could not execute the sale deed and the sale deed had been registered only on 24th September, 2004, after the suit filed by Shri Ranjeet Lal, challenging the validity of the Will, had been dismissed. In the light of the aforestated facts and in view of the definition of the term “transfer”, one can come to a conclusion that some right in respect of the capital asset in question had been transferred in favour of the vendee and therefore, some right which the appellants had, in respect of the capital asset in question, had been extinguished because after execution of the agreement to sell it was not open to the appellants to sell the property to someone else in accordance with law. A right in personam had been created in favour of the vendee, in whose favour the agreement to sell had been executed and who had also paid Rs.15 lakhs by way of earnest money. No doubt, such contractual right can be surrendered or neutralized by the parties through subsequent contract or conduct leading to no transfer o f the property to the proposed vendee but that is not the case at hand.
22. In addition to the fact that the term “transfer” has been defined under Section 2(47) of the Act, even if looked at the provisions o f Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capita l gain. If a person, who gets some excess amount upon transfer o f his old residential premises and thereafter purchases or constructs a new premises within the time stipulated under Section 54 of the Act, the Legislature does not want him to be burdened with tax on the long term capital gain and therefore, relief has been given to him in respect of paying income tax on the long term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that common sense is a stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the Act. In the case of Oxford University Press v. CIT [2001] 247 ITR 658/115 Taxman 69 this Court has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax. Considering the aforestated observations and the principles with regard to the interpretation o f Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of “transfer”, which would enable the appellants to get the benefit under Section 54 of the Act.
23. Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immovable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed.
24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated.
25. In view of the aforestated peculiar facts of the case and looking at the definition of the term ‘transfer” as defined under Section 2(47) of the Act, we are of the view that the appellants were entitled to relief under Section 54 of the Act in respect of the long term capital gain which they had earned in pursuance of transfer o f their residential property being House No. 267, Sector 9-C, situated in Chandigarh and used for purchase of a new asset/residentia l house. ”
Thus, it was held by the Hon’ble Supreme Court that when agreement to sale in respect of immoveable property is executed a right in personae is created in favour of the vendee and thereby the vendor is restrain from selling the property to someone else because the vendee gets the legitimate right to enforce specific performance of the agreement. In view of the above facts and circumstances of the case as well as the decision of Hon’ble Supreme Court we hold that the transfer of the land in question would be regarded as on the date of agreement to sale dated 11.04.2007. The order of the authorities below qua this issue are set aside.
8. Ground No. 2 is regarding the fair market value adopted by the AO as per Section 50C of the Income Tax Act. During the course of assessment proceeding, the AO invoked the provisions of Section 50C of the Act and adopted the full value consideration as per the stamp duty valuation of Rs. 3.16 crores for the assessment year 2011-12 and Rs. 2,62,01,662/- for the assessment year 2012-13. On appeal, the ld. CIT(A) has referred the matter of valuation to the DVO u/s 50C(2) of the Act for determination of fair market value on the date of sale. The assessee furnished the report of the registered valuer in support of its claim that the fair market value of the property is much less than the value adopted by the stamp duty authority. The DVO, however determined the fair market value of the land at the value as adopted by the stamp duty authority for registration of sale deeds. Consequently the ld. CIT(A) has confirmed the addition made by the AO on this account.
9. Before us, the ld. AR of the assessee has submitted that both the Sub-Registrar and DVO have considered the land as meant for residential use and accordingly applied the rate of Rs. 2,000/- and 2300 per sq. mt. respectively. He has contended that as per clause-3 of the lease deed issued by JDA, the land can be used only for farm house and not for any other purpose. Further, as per clause 4 of the lease deed there is a reference to the government order dated 04.10.2002 & 21.07.2003 whereby the minimum size of farm house is specified to be 3000 sq. mt. and permitted built up area at 5% and therefore, the value adopted by the DVO is apparently incorrect when the land in question is permitted only for farm house purpose. There is a restriction on the minimum size of farm house as well as built up area which is only 5%. The ld. AR has then referred to the letter dated 14.07.2014 of collector of stamp wherein it was clarified that the land is meant for farm house. In the meant time the Government issue notification of acquisition of the land for the road purpose and therefore, at the time of sale of the land in question was under the process of the acquisition by the Government and consequently the fair market value of the land is affect by the acquisition notification and will be less than the normal rates of the land. He has also referred to the Circular No. 3385 dated 14.07.2014 and submitted that the Government has clarified DLC rate application on the agricultural land used for farm houses however, the DVO has denied the applicability of the said circular as it is subsequent to the date of sale. Hence, the ld. AR has submitted that the registered valuer has determined the fair market value of the land by considering all these factors which should have been accepted by the authorities below.
10. On the other hand, ld. DR has submitted that the DVO determined the valuation after considering the objection of the assessee as well as the valuation report of the registered valuer submitted by the assessee. The fair market value of the property has to be determined on the date of sale deed and therefore, the circular dated 14.07.2014 was not available at the time of sale deed and consequently is not applicable in the case of the assessee. He has relied upon the orders of the authorities below.
11. We have considered the rival submissions as well as relevant material on record. We find that the stamp duty authority has adopted the rates as provided for residential purpose whereas undisputedly the land in question was allowed only for farm house purpose. As per the orders of the competent authority the construction on the farm house land cannot exceed more than 5%, therefore, all these facts are relevant for determining the fair market value as per section 50C(2) of the Act when the assessee has raised the objection against the adoption of full value consideration as adopted by the stamp duty authority. We further note that the land in question was under acquisition by the Government and this itself is a very relevant factor to be taken into consideration for the purpose of determining the fair market value. The Property has been bifurcated into two parts as a road has been carved out passing through the property after acquisition of the land. The DVO has adopted the DLC rate as applied by the stamp duty authority without carried out any exercise of the determining the fair market value of the land in question. It is pertinent to note that there are various factors which effect the fair market value of land in question including the land use, the restriction of built up area, subsequent circular issued by the Government prescribing the rates for the stamp duty authority in respect of the farm house as per the size of the farm house but have not been considered by DVO. Therefore, these aspects are required to be taken into consideration while determining the fair market value of the land in question. We find that the DVO has not given a due waitage to these factors while determining the valuation, therefore, the same is not sustainable. Accordingly, in the facts and circumstances of the case we set aside this issue to the record of the AO/DVO for determination of fair market value after considering all the relevant factors such as the land use, restriction of built up area, the circular dated 14.07.2014 specifying as per rates for the farm house land in accordance with the area of the land and acquisition by Government. The circular dated 14.07.2014 is a useful and relevant guidance for determining the fair market value. Needless to say the assessee be given an opportunity of hearing before deciding this issue.
12. Ground No. 3 is regarding disallowance of cost of improvement. The AO while computing the capital gain has allowed the cost of purchase at Rs. 47,42,800/- and cost of improvement at Rs. 20,000/-aggregating to Rs. 47,62,800/- as against Rs. 56,70,055/- claimed by the assessee. The AO restricted the claim of cost of improvement on the ground that on verification of the ledger account it is found that only an amount of Rs. 20,000/- was incurred after acquisition of the property vide sale deed dated 13.04.2010. Thus, the AO has disallowed the expenditure which was incurred prior to the sale deed and after the date of agreement to sale dated 11.04.2007. The ld. CIT(A) has confirmed the action of the AO.
13. We have heard ld. AR as well as DR and considered the relevant material on record. Since, this issue of date of acquisition of the land in question has been decided by us by holding that the assessee has acquired the land vide agreement dated 11.04.2007 and therefore, the expenditure incurred for improvement of the land after the said date of acquisition is an allowable claim as per section 48 of the Income Tax Act. Even otherwise if an expenditure is incurred by the assessee for improvement of the land after the agreement to sale dated 11.04.2007 and prior to the sale deed dated 13.04.2010 the fact remains that the expenditure was incurred for improvement of land by the assessee and acquired by the assessee. Therefore we are of the considered view that the expenditure incurred cannot be disallowed when the purchase consideration paid by the assessee prior to the sale deed was accepted and therefore, the expenditure incurred by the assessee prior to the sale deed is also allowable claim. Accordingly, we decide this issue in favour of the assessee.
14. Ground No. 4, at the time hearing, the learned counsel for the assessee has stated at bar that the assessee does not press ground no. 4 and the same may be dismissed as not pressed. The ld. DR has raised no objection if ground no. 4 of the assessee’s appeal is dismissed as not pressed. Accordingly the ground no. 4 of the assessee’s appeal is dismissed being not pressed.
15. For the assessment year 2012-13 the assessee has raised the following grounds:-
“1. The Ld. CIT(A) has erred on fact and in law in confirming the action of the AO in taking the date of purchase of land as 13.04.2010 as against the date of acquisition of land o f 11.04.2007 when the land was purchased and the possession was received in terms of agreement to sale of even date and thereby, assessing the gain on sale of the land as Short Term Capital Gain instead of Long Term Capital Gain claimed by the assessee.
2. The Ld. CIT(A) has erred on fact and in law in adopting the sale consideration of the land u/s 50C at Rs. 2,62,01,662/- on the basis of the report of DVO which is based on the value determined by the Sub-Registrar and not the fair market value o f the land as required u/s 50C(2). He has further erred in not appreciating the various objections raised by the assessee on the report of the DVO and also the fair Market value of the land determined by the registered valuer and thereby, upholding the capital gain determined by the AO at Rs. 2,20,38,183/-.
3. The Ld. CIT(A) has erred on fact and in law in holding that the agricultural land sold by the assesse is a capital asset by not considering that the land was situated beyond 8 kms of the municipal limits as per Notification No. 9447 dt. 06.01.1994.
4. The assessee crave to amend, alter and modify any of the grounds of appeal.
5. The appropriate cost be awarded to the assessee. ”
16. Ground No. 1 is regarding the treatment of long term capital gain as short term capital gain. This issue is common as raised by the assessee in ground No. 1 of the appeal for the assessment year 2011-12. In view of our findings on this issue for the assessment year 2011-12 the same stands adjudicated in favour of the assessee.
17. Ground No. 2 is regarding the fair market value determined by the DVO and adopted by the authorities below. This issue is also common to the issue raised by the assessee in ground No. 2 for the assessment year 2011-12. In view of our findings on this issue, this issue stands adjudicated in terms of our findings and accordingly, set aside to the record of AO/DVO.
18. Ground No. 3, at the time hearing, the learned counsel for the assessee has stated at bar that the assessee does not press ground no. 3 and the same may be dismissed as not pressed. The ld. DR has raised no objection if ground no. 3 of the assessee’s appeal is dismissed as not pressed. Accordingly the ground no. 3 of the assessee’s appeal is dismissed being not pressed.
In the result, both the appeals of the assessee are partly allowed.
