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TMI Blog2017 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty Act have no application to the facts of the case and that it cannot be said that there was a transfer of property as on 2.4.2007 and that the capital gain is assessable for the assessment year 2008-09. 5. The learned CIT (Appeals) erred in confirming the determination of the capital gain by the Assessing Officer at Rs. 17,99,020/-. 6. The learned Commissioner of Income-Tax (Appeals) ought to have held that the capital gain did not arise on 2.4.2007 and the gain is assessable under the head "LTCG". 7. The learned Commissioner of Income-Tax (Appeals) ought to have held that the capital gain arising on the transfer of the property is LTCG and the deductions allowable in respect of the LTCG are allowable to the appellant. 7. The Ld. CIT(A) ought to have directed the A.O to allow deduction of cost of acquisition and the deduction allowable u/s 54 of the IT Act. 8. The Ld. CIT(A) erred in confirming the action of the A.O in charging interest u/s 234B & 234C of the IT Act. The ground Nos. 01 & 09 are general in nature and ground No. 08 is consequential which does not require any fresh adjudication. 2. Briefly stated Assessee is an individual, deriving income from sala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/ ' (Rupes Eighty Lakhs only) and the vendee has paid an amount of Rs. 40,000/- (Rupees Forty Thousand only) by way of cash to the vendor, and the vendor do here by admits and acknowledges the receipt of the said sum. 4. The vendor shall deliver the vacant possession of the said property to the vendee or his nominee (s) at the time of registration of sale deed. 6. The vendor shall register a sale deed in favour of the vendee or his nominee or nominees only after receiving the balance sale consideration in full without any balance of the sale consideration pending by way of cheque payment only from the vendee and registration charges will be borne by the vendee at that point of time as per the governing law of the land. 12. That the vendor has handed over the physical vacant possession of building which is not on part of assigned land attracting the provision of prohibition on assigned lands Act No.9 of 1977." 4.1...... (g). An amount of Rs. 80,00,000/- was paid by M/s Avenir Power Technologies Pvt. Ltd. directly to GIC Housing Finance Ltd.ICICI/HSBC banks on behalf of the appellant as under: Sl.No Description Date Amount 1 DD in favour of GIC Housing Finance Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right to receive the consideration arises out of such agreement even though the actual consideration is received at a later date, The Hon'ble Andhra Pradesh High - our: in the case of potla Nageswara Rao, ITTA No.24 of 2014 dated 09.04.2014 held that capital gain is taxable in the year of agreement as under: " In the instant case, on 07.03.2003 an agreement was entered into by the assessee with M/s. Bhavya Constructions Pvt. Ltd. And the plan of the building was approved on 31.03.2003. These dates fall in the previous year 2002-03, relevant to assessment year 2003-04. Thus in this case, the land being capital asset was transferred by the assessee to the developer during the assessment year under consideration, viz., 2003-04 for construction and it is enough if the assessee has received the right to receive consideration on later date, so as to attract eligible to tax on capital gains during the year under appeal. Therefore, these grounds of appeal are dismissed. 5.1. It was the contention of the Ld. Counsel that Assessee has not handed over the possession during the year and vide clause 4 & 6 it was specifically stated that the possession will be handed over only on receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not disputed by Assessee, the said payments were mostly paid by 28-08-2007, leaving the balance of 2,36,255/- by the end of the year. Thus large part of the consideration was received by August 2007, therefore the condition in clause 6 is satisfied. 9. The Ld. CIT(A) relied on clause 12 which indicates 'that the vendor was handed over physical vacant possession of the building which is not on part of assigned land attracting the probation of assigned lands on Act 9/1977'. The purport of this clause was explained that it only clarifies that the building was not part of any assigned land but it does not mean that Assessee has handed over physical vacant possession. The entire evidence placed on record cannot be fully accepted as the payments stated to have been made by the company are part of the running account of the Assessee with the company, being Managing Director, which reflect not only payments made to GIC towards loan instalment but also the other payments such as day to day expenditure, of credit card payments, insurance payments etc. Assessee is not able to explain when it was specifically asked, what was the need for transferring / entering the agreement on 02-04-2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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