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TMI Blog2014 (12) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... law and on the facts of the case in not referring the matter to the DVO as required u/s.50 C(2) of the Act. 5. The learned CIT(A) erred in law and on the facts of the case in confirming interest charge u/s.234B and 234C of the Act. Additional Grounds of Appeals (Not raised before the CIT(A) 6. The assessment framed u/s.143(3) is bad in law as no notice is issued u/s.143(2) within a period of 12 months from the end of the month in which the return was filed." 7. The Assessing Officer erred in law and on the facts of the case in charging the capital gains on transfer of the land for the A.Y. 2007-08 whereas the same is chargeable for the year 2006-07 as the assessee entered into a part performance of the contract within the meaning of Sec. 53A of the transfer of the Property Act during the financial year 2005-06 relevant to A.Y.2006-07 and which is transfer within the meaning of Sec. 2(47) of the Act." 2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) dated 15.12.2009 were that the assessee in individual capacity has filed the return of income on 31st of July, 2007 declaring income / los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedural aspect hence to be followed by the Revenue Department after incorporation. It is also worth to mention that due to the said amendment no notice u/s.143(2) could be served upon the assessee after the expiry of six months from the end of Financial year in which the return was furnished. As we have noted the return was furnished on 31st July, 2007, therefore, the financial year had ended on 31st March, 2008. The sixth month from the end of the said financial year was expiring on 31st September, 2008. However, the notice was served u/s. 143(2) on 16.09.2008; therefore the notice in question was very much within the time prescribed. The old provisions were not applicable wherein it was prescribed that no notice u/s.143(2) shall be served on the assessee after the expiry of 12 months from the end of the month in which the return was furnished. We hereby hold that since a procedure has been laid down which was effective from 1st April, 2008, therefore it is expected from the Revenue Department to follow the said procedure, especially the issuance of notice u/s.143(2) of IT Act. Since, the AO has rightly followed the procedure by issuing a notice u/s.143(2) within the time pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07, therefore, the correct Assessment Year was A.Y.2007-08 in which the AO has rightly assessed the capital gain. 9. Having heard the submissions of both the sides, we find force in the submissions of the Revenue Department because as per Section 2(47) the definition of the word "transfer" in relation to a capital asset includes sale, exchange, and relinquishment of the asset. This is a case of a transfer of an immovable property. An immovable property can only be transferred through a registered sale deed. In the present case, the sale deed was executed on 26th July, 2006 and thereupon that as per Clause 17, page 16 of the said sale deed dated 26th July, 2006 it was clearly mentioned that the possession was handed over on the date of the execution of the sale deed by the seller to the purchaser. In the said clause, it was specified that a vacant and peaceful possession was handed over to the purchaser on the date of execution of the sale deed. Because of these reasons, we hereby hold that since the possession was handed over and the sale deed was registered in the Financial Year 2006-07, therefore, the correct assessment year ought to be A.Y.2007-08. The AO's action, in this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected in the % reservation by the govt. which ultimately did not materialize and therefore the sale deed was ultimately registered in July'06. In an expectation that there might be some relaxation in reservation policy, gross area of land was mentioned in the sale deed so that if in govt. relaxes the norms, then the buyer would get the benefit out of it. To summaries, through the sale area was 1951 Sq. Yds (1631 Sq. Yds), which can be seen for the map attached with the sale deed, and for which a consideration of Rs. 45.00 Lacs was received, the gross area is mentioned in the sale deed. The Jantri rate prevailing was Rs. 2600 per Sq. Mts accordingly, the valuation for stamp duty purpose work out to Rs. 42.40 lacs against which the sale deed value in Rs. 45.00 lacs i.e. higher than the Jantri rate for view of this, no addition should be made under section 50 C." 10.1 Learned AR has therefore pleaded that it was wrong on the part of the AO to apply the valuation for the entire piece of land on the basis of the rates of stamp duty fixed by the sub-registrar. He has pleaded that in terms of Section 50C it is correct that the higher stamp duty was paid but in a situ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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