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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY, JM & SHRI RAJESH KUMAR, AM
O R D E R PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee challenging the order of ld. CIT(A)-Mumbai, dated 16.12.2013, pertains to the assessment year 2009-10.
The sole issue raised by the assessee in all the grounds of appeal is against the confirmation of addition of Rs.22,42,843/- by the ld.CIT(A) as made by the AO on account of Long Term Capital Gains (LTCG).
Brief facts of the case are that the assessee filed return of income on 2.09.2009 declaring a total loss of Rs.1,67,257/-. The case of the assessee was selected under CASS and the statutory notices u/s 143(2) and 142(1) were issued and served upon the assessee. The AO during the course of assessment proceedings observed on the basis of AIR information that the assessee has sold an immovable property for a total consideration of Rs.30 lakhs vide registered agreement to sell dated 9.2.2009 which was not shown in the return of income. During the course of assessment proceedings, the assessee submitted before the AO that the assessee has invested an amount of Rs.13,62,900/- in new house property and hence he requested the AO to grant exemption u/s 54F of the Act but the same was declined by the AO by referring and relying on the decision of the Hon’ble Supreme Court in the case of Goetz India Ltd V/s CIT (2006) 284 ITR 323 (SC). The said property was purchased on 28.7.2004 for a total consideration of Rs.6 lakhs and other expenses like stamp duty, renovation cost of Rs.47,000/-. The AO worked out capital gains as under : Sale consideration : Rs.30,00,000 Less brokerage : Rs. 51,111 Net consideration : Rs.29,48,889 Less Indexed cost of acquisition: Rs. 8,06,046 (664780 x 582/480) Long term capital gains Rs.21,42,843 Accordingly, assessment was framed vide order dated 7.12.2011 passed under section 143(3) of the Act at an income of Rs.23,14,390/-. According to the assessee, he entered into an agreement dated 9.2.2009 for sale of immovable property for a total consideration of Rs.30.00 lakhs against which the assessee has received an amount of Rs.1.00 lakh during the year at the signing of agreement and balance was to be paid within a period of one month upon the fulfillment of certain conditions as mentioned in the agreement to sell. The possession was also to be handed over on payment of full amount. The buyer of the property could honour conditions as laid down in the agreement to sell and as a result the possession was also not given. However, the payment was made in the month of April,2009 and the possession was given on 11.5.2009 as evidenced by the documents available on record. According to the assessee the sale of the property took place in the assessment year 2010-11 as the balance sale consideration of Rs. 29.00 was received in that year and the possession was also handed over in that assessment year whereas as per the AO the transfer took place in the assessment year 2009-10 and accordingly, the assessment was framed. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority who after considering the submissions and documents as submitted by the assessee also dismissed the appeal of the assessee by observing and holding as under :
“6. I have gone through the impugned assessment order, submissions and documents filed before me. The appellant has entered into registered agreement for sale of shop No.5, Sanpada Abhishek Co-op Housing Society, plot No.24, Vashi, Navi Mumbai for sale consideration of Rs. 30,00,000/- by payment of stamp duty of Rs. 1,50,000/- and registration fees of Rs.30,000/- on 09.02.2009 and received advance of RS.1 lakh. The appellant in the instant case does not dispute liability to tax on the transfer of property (shop). The only dispute is with regard to the yea!' of taxability of the said transfer. From the perusal of the agreement to sale, it is clear that transfer has taken place on 9.2.2009 and the same is duly registered on the same date. It is fu rLher admitted fact that part consideration to the extent of Rs. 1,00,000/- out of total consideration of Rs.30,00,000/- was also received by the appellant on signing of this agreement. Balance consideration was also received by the appellant by 11.5.2009. Thus, Lit le to the property stands transferred in the instant case on 9.2.2009 when agreement to sale was registered, and the terms of contract were complied with within a stipulated period as laid down in the agreement between the transferor and the transferee.
The Hon. Bombay High Court in the case Chaturbhuj Dwarakadas Kapadia Vs CIT reported in 260 ITR 491 laid down following principles with regard to transfer of property u/s 2(47) of the Act:
“Before us, it was argued on behalf of the assessee that the date on which possession is parted with by the transferor is the date which should be taken into account for determining the relevant Accounting Year in which the liability accrues. It was argued on behalf of the assessee that in this case, irrevocable licence was given in terms of the contract only during the financial year ending 31st March, 1999 and, therefore, there was no transfer during the financial year ending 31st March, 1996. On the other hand, it was argued on behalf of the revenue that one has to go by the date on which the developer substantially performed the contract. It was argued on behalf of the department that since substantial payments were made during the financial year ending 31st March, 1996 and since majority of permissions were obtained during that year, the liability to pay capital gains tax accrued during assessment year 1996-97. In this case, the agreement is a Development Agreement and in our view, the test to be applied to decide the year of chargeability is the year in which the transaction was entered into. We have taken this view for the reason that Development Agreement does not transfer the interest in the property to the developer in general law and, therefore, section 2(47)( v) has been enacted and in such cases, even entering into such a contract could amount to transfer from the date of the agreement itself. We have taken this view for a precise reason. Firstly, we find in numerous matters where the Assessing Officer and the department generally proceed on the basis of substantial compliance of the contract. For example, in this very case, the department has contended that because of substantial compliance of the contract during the financial year ending 31st March, 1996, the transfer is deemed to have taken place in that year. Such interpretation would result in anomaly because what is substantial compliance would differ from Officer to Officer. Therefore, if on a bare reading of a contract in its entirety, an Assessing Officer comes to the conclusion that in the guise of agreement for sale, a Development Agreement is contemplated, under which the developer applies for permissions from various authorities, either under power of attorney or otherwise and in the name of the assessee, then the Assessing Officer is entitled to take the date of the contract as the date of transfer in view of section 2(47)( v). In this very case, the date on which the developer obtained a commencement certificate is not within the accounting year ending 31st March, 1996. At the same time, if one reads the contract as a whole, it is clear that a dichotomy is contemplated between limited Power of Attorney authorising the developer to deal with the property vide para 8 and an irrevocable licence to enter upon the property after the developer obtains the requisite approvals of various authorities. In fact, the limited power of attorney may not be actually given, but once under clause 8 of the agreement a limited power of attorney is intended to be given to the developer to deal with the property, then we are of the view that the date of the contract viz., 18th August, 1994 would be the relevant date of decide the date of transfer under section 2(47)( v) and, in which event, the question of substantial performance of the contract thereafter does not arise. This point has not been considered by any of the authorities below. No judgment has been shown to us on this point. Therefore, although there is a concurrent finding of fact in this case, we have enunciated the principles of applicability of section 2(47)( v). We do not find merit in the argument of the Court should go only by the date of actual possession and that in this particular case, the Court should go by the date on which irrevocable licence was given. If the contract, read as a whole, indicates passing of or transferring of complete control over the property in favour of the developer, then the date of the contract would be relevant to decide the year of chargeability.”
The ld. AR vehemently submitted before us that the ld. CIT(A) has grossly erred in fact and in law in upholding the order of the AO by holding that the transfer of property took place on 9.2.2009 as against 11.5.2009. The ld. AR submitted that on 9.2.2009 the agreement to sell was executed and registered alongwith payment of Rs.1.00 lakh to the assessee. The ld. AR while referring to the various provisions of agreement to sell dated 9.2.2009 took us through the various terms and conditions qua the payment and handing over the possession of the property. The Ld.AR submitted that the transfer could not be said to have taken place on 9.2.2009 as only Rs.1.00 lakh was received whereas the balance of Rs.29 lakhs was received in the month of April, 2009 and the possession was taken in the month of May 2009. The ld. AR also referred to the possession letter dated 11.5.2009 filed at page 59 of the paper book evidencing parting the possession of the property by the assessee on 11.5.2009. The ld.AR argued that the transaction was covered under the provisions of section 2(47) (v) of the Act and not by the provisions of section 2(47)(vi) of the Act which has wrongly been applied and upheld. The ld. AR submitted that the possession was also given 2010-11 under the provisions of section 2(47(V) of the Act. Thus Ld. CIT(A) has wrongly upheld the order of the AO. Moreover, subsequently substantial part of consideration Rs. 29.00 lacs was paid in the month of April, which sufficiently proved that the transfer of property took place in the assessment year 2010-11 and not in assessment year 2009-10 as has been upheld by the FAA. The ld. AR also took us through the calculation as has been done calculated by the assessee and capital gain tax paid thereon in the assessment year 2010-11 on the said sale of property which has been assessed and accepted by the AO and any further addition of the same in the current year and charging tax thereon amounted to double taxation which was against the spirit of law. He finally urged tha bench to delete additions made on account of long term gain.
The ld. DR, on the other hand, objected to the arguments advanced by the ld.AR and heavily relied on the orders of authorities below by submitting that the agreement dated 9.2.2009 was registered and advance of Rs. 1.00 lakh was paid to the assessee . He argued that the interest in the property was also created with signing of the agreement to sell which restrain the assessee to transfer the property to any other person/third party. The ld DR urged before the bench to uphold th4e order of Ld CIT(A) as the sale of property had taken place in AY 2008-09.
We have carefully considered the rival contentions and perused the material placed before us including the orders of authorities below and case laws relied upon by the parties. We find that the assessee is a member of co-operative housing society holding shop in the said society which was sold by him vide agreement to sale dated 9.2.2009 for a total consideration of Rs.30.00 lakhs and a sum of Rs.1.00 lakh was received as an advance with the signing of the agreement dated 9.2.2009. However, due to non fulfillment of terms of the agreement to sell qua the payment of balance amount the sale eventually took place in the assessment year 2010-11. The balance consideration of Rs.29.00 lakhs was paid in the month of April, 2009 and the possession was handed over to the purchaser on 11.5.2009 as evidenced by a letter dated 11.5.2009 and also vide sale-com-assignment deed dated 11.5.2009. In view of these facts, we are of the considered view that the sale of shop has definitely taken place in the assessment year 2010- 11 and not in the assessment year 2009-10 as has been observed and concluded by the AO and confirmed by the ld.CIT(A). Further the sale is covered under the provisions of section 2(47)(v) and not under the provisions of section 2(47)(vi) of the Act as has been held by the lower authorites. In the provisions of section 2(47)(v) the sale of property means allowing of the possession of any immovable property to be taken or retained in part performance of a contract, whereas under the provisions of section 2(47(vi) it has been mentioned that any transaction whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever which has the effect of transferring, or enabling the enjoyment, of any immovable property is also sale. We also find that for a transfer of property in question the permission is required to be obtained from the CIDCO which was granted on 18.5.2009, a copy of which is placed at page 48 of the paper book which is extracted below : “CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF MAHARASHTRA LIMITED Redg office : OFFICE: HEAD OFFICE: NIRMAL: 2nd Floor Office of the CIDCO Bhavan, Nariman Point, Estatemanagement CBD·Belapur, Mumbai - 400 021. Section, CIDCO Bhavan, Navi Mumbai -400614 Phone: 66500900 PHONE- 6791 8100 Fax:00-91-22-2202 1st Floor, CBD-Belapur FAX: 00·91·22·67918166 2509 Navi Mumbai - 400 614.
CIDCO/EMS/EO(HT)/2008 / Date: I 18.5.2019 To The Secretary/Chairman, Saupada Abhishek CHS Ltd, Plot No.24, sector-30 Vashi Navi Mumbai-400705 FINAL ORDER Sub.: Grant of permission to transfer of 1 (one) member from above Society, Supada No.5 Constructed on Plot No. 24, Sector 30 Ref.: (1) Our Letter No. CIDCO/EMS/2009 dated 6.3.2009 (2) Xerox copy of Deed of Assignment dated 11.5.2009 registered under Sr NO.01495 dated 11.5.2009 with Sub-Registrar & Assurance Thane-6.
Sir, You are requested to refer your application for transfer of share of members from aforesaid society plot. We are pleased to inform you that, Corporation has accepted your transfer applications and permits your 1 (one member to transfer his share. The details of the member is given below: S.No. Name of the Name of the Shop No. Carpet outgoing member incoming member area in M2 1 Mr.Kassam Devji Mr.Lav Appaji 05 28.75 M2 Gori Doiphode Mrs.Sangeeta Lav Doiphode The other terms and conditions of the agreement of Lease/lease dated 5.5.1984 between society and our corporation remained unchanged. Thanking you, Yours Faithfully, sd (Asstt. Estate Officer) 7. In view of the facts as discussed above, we are of the considered view that the order of the FAA confirming the order of the AO is bad in law and cannot be sustained. Accordingly, we are inclined to set aside the order of FAA and the AO is directed to delete the addition made by him on account of LTCG.