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TMI Blog2010 (10) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... a 'transfer' of property. Under the common law a mere handing over the possession of the property to the vendee towards part performance of the contract would not create any interest on the vendee in respect of such property. It may at best gives a right to the vendee for enforcement of the right to specific performance. Therefore, the contention of the learned DR that no one would hand over the possession of the property worth over ₹ 70 lakhs on receipt of ₹ 7 lakhs is misconstrued. When the law of the land provides for handing over the possession either on receipt of part consideration or otherwise in pursuance to an agreement for sale the learned DR is not right in saying that no one would hand over physical posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are no infirmity in the order of the lower authority. Accordingly the same is confirmed. Appeal of Revenue dismissed. - ITA No. 743/HYD/2009 - - - Dated:- 29-10-2010 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMEBR Appellant by: Smt. Madhu Vani and Shri K.V.N. Charya Respondent by: Shri K.C. Devadas ORDER PER NRS GANESAN, JM: This appeal by the Revenue is directed against the order of the CIT(A), Vijayawada dated 31.3.2009 for the assessment year 2006-07. The only issue arising for consideration is computation of capital gain. 2. Smt. Madhu Vani, the learned DR submitted that the assessee had entered into an agreement for sale on 12.4.2005 and executed the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land property at ₹ 7,000 per SY. On the date of agreement for sale the vacant physical possession of the property was handed over to the vendee. Therefore, the date of sale under the Income-tax Act is the date on which the possession was handed over to the vendee in pursuance of part performance of the agreement for sale. Therefore, for the purpose of computing the capital gain the guidelines value as on 12.4.2005 shall be taken into consideration. Since admittedly the guidelines value as on 12.4.2005 is less than the agreed sale consideration there is no question of application of section 50C of the Act. 4. The learned counsel for the assessee further pointed out that a reference was made to the valuation officer to value the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 53A of the Transfer of Property Act would also to be considered a 'transfer' under the Income-tax Act. Therefore, what we have to see is whether the assessee has handed over the physical possession of the property on 12.4.2005 when the agreement for sale was executed. The Revenue has filed copies of the agreement for sale as well as the copies of the sale deed. Clause 3 of the agreement for sale reads as follows: 3. The vendor herein delivered vacant and peaceful possession of the said plot of land to the vendee herein on this day on entering into this agreement of sale. The possession of the scheduled property shall be reverted to the vendor in case the vendee fails to pay full consideration of sale as per the stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the contract would not create any interest on the vendee in respect of such property. It may at best gives a right to the vendee for enforcement of the right to specific performance. Therefore, the contention of the learned DR that no one would hand over the possession of the property worth over ₹ 70 lakhs on receipt of ₹ 7 lakhs is misconstrued. When the law of the land provides for handing over the possession either on receipt of part consideration or otherwise in pursuance to an agreement for sale the learned DR is not right in saying that no one would hand over physical possession of the property. 7. Let us now examine the contents of the registered sale deed. Clause 3 of the registered sale deed reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration is less than the value adopted by the concerned authorities for the purpose of valuation of stamp duty. However, when the assessee claims that the value adopted by the stamp duty valuation authority exceeds the fair market value the Assessing Officer may refer the matter to the valuation officer to estimate the value of the capital asset. After reference to valuation officer, if the value estimated by the valuation officer exceeds the value adopted by the stamp duty valuation authority then the Assessing Officer shall take the valuation of the stamp duty valuation authority as full value of consideration for the purpose of computing capital gain. In the case before us as on 19.8.2005 the guidelines value for the property is ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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