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TMI Blog2015 (4) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. CIT(A)’s computation which read Total sale consideration [As per registered deed dated 3.2.07 + sale consideration of ‘Malwa’ (Rs. 24,00,000 + ₹ 2,75,000/-) ₹ 26,75,000/- LESS Cost of acquisition as per registered deed dated 17.5.06 ₹ 23,70,020/- = SHORT TERM CAPITAL GAIN ₹ 3,04,980/- - Decided against revenue. - ITA No.6077/Del/2012 - - - Dated:- 27-3-2015 - Shri R.S. Syal And Shri A. T. Varkey JJ. For the Appellant :Shri J P Chandrakar, Sr.D R For the Respondent :Shri Akhilesh Kumar, Adv Per A. T. Varkey, JUDICIAL MEMBER This appeal of the Revenue is directed against the Order dated 04.09.2012 passed by the Ld. Commissioner of Income Tax (Appeals), Ghaziabad for the Assessment year 2007-08 on the following grounds:- 1. In the facts and circumstances of the case, the Ld. CIT(A) has erred in not appreciating that the cost of land and building have been mentioned separately in the registered purchase deed and accordingly the AO has rightly computed the Capital Gain. 2. In the facts and circumstances of the case, the Ld. CIT(A) has erred in not appreciating that the benefit of capital gain, especially when cost of acquisiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the relevant records available with us. We find that in this case return of income was filed on 24.9.2007 declaring income of ₹ 772060/- from salary, STCG and income from other sources. The assessee during the year under consideration received salary from M/s Emmar MGF Land Pvt. Ltd. and also sold residential property i.e. Plot No. III, E/92, Nehru Nagar-II, Ghaziabad for ₹ 24,00,000/- which was acquired by the assessee in the year 2006. The assessee has claimed the cost of acquisition at ₹ 23,70,020/-. Thus, net short term capital gain has been declared at ₹ 29,980/-. AO completed the assessment u/s. 143(3) of the Act. Vide his order dated 14.9.2009 and income of the assessee was computed as under:- -Salary as per computation ₹ 8,39,651/- -Income from capital gain as discussed ₹ 13,28,160/- -Income from other sources as per computation ₹ 2,430/- - Income from other sources as discussed ₹ 1,30,000/- ₹ 23,00,241 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. Thus, we concur with the observation of the ld. CIT(A) that there is no reason to tax the sale of Malwa under different head, income from other sources, when it is intricately connected to sale of same property. And even if it is to be taxed under the said Head, then also associated cost of construction is be deducted and, thus, consequential loss is to be allowed against gain arriving, which ultimately would yield the same result. 7.2 We also find that the Ld. CIT(A) has also referred a decision of ITAT, Hyderabad in the case of Dr. Maya Shenoy vs. ACIT [2009] 124 TTJ (Hyd.) 692 and observed as under:- Section 2(47) of the Income Tax Act, 1961 -Capital Gains - Transfer Development agreement under which developer was to handover 45 percent of constructed area as consideration to assessee could not merely amount to granting of licence to builder to carry on development activities but would be a case of transfer under section 2(47)(i) [Assessment year 2001-02) [in favor of Revenue] Dr. May Shenoy v. ACIT [2009] 124 TTJ (Hud.) 692 The assessee had purchased a property consisting of land with a double storied building standing on it. The assessee entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the transfer contemplated under the Transfer of Property Act and hence under clause (v) of section 2(47). In the present case, this was not a sale transaction as money was not the consideration but some other valuable consideration was passing to the assessee in the form of 4-1/2 flats. Therefore, the transfer in the present case was for consideration and it was immaterial that the consideration may be received in future. Therefore, the development agreement in the present case had the effect of transfer as contemplated in section 2(47). Having held that the execution of the development agreement resulted into the transfer of land from the assessee to the developer, the next issue which fell for consideration was as to what was the effective date of transfer. The possession of the vacant land was handed over to the developer. The agreement was merely an executory agreement and not acted upon. Thus, it could be said that the developer got the possession of the land sometimes in December, 1999. Thus qua the entire. piece of land, the assessee was left with nothing but the husk of title and hence it was a transfer as per section 2(47); handing over of the possession was towards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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