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TMI Blog2017 (4) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... ble property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882. In the instant case, it is not in dispute that under a written agreement dated 18.12.1996, the assessee handed over the possession of land to the builder M/s. Atrick Construction (P) Ltd., on a consideration of ₹ 3 lakhs and 22% of the constructed area to be built by the builder. Thus, the transfer of 78% of the undivided right of the land took place in the previous year relevant to assessment year 1997-98. Thus the related capital gain is not exigible to tax in the year under consideration i.e. 2001-02. Therefore, do not find any merit in this appeal of the revenue and hence, the same is dismissed. - Decided in favour of assessee - ITA No. 295/CTK/2015 - - - Dated:- 7-4-2017 - Shri N. S. Saini, Accountant Member Assessee by : Shri Abhinash Kedia Revenue by : Shri D.K.Pradhan, DR ORDER This is an appeal filed by the revenue against the order of CIT(A)-2, Bhubaneswar, dated 23.3.2015, for the assessment year 2001-02 2. The sole issue involved in this appeal is that the ld CIT(A) is not justified in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs,9000 or per 1 acre is ₹ 78,947/- A0.129 dec. Rs.6000 or per 1 acre is ₹ 46,512/- Thus, the average price per acre is ₹ 62,730/-. As there was no much difference in the price or value of land at Cuttack Road area and Satya Nagar area, by adopting the rate of ₹ 62,730/-per acre, the value of A0.351 dec. would be Rs,22,018/-and accordingly, the indexed cost of acquisition would be ₹ 89,393/-[(Rs.22,018/- x 406)divided by 100]. Therefore, the Assessing Officer by taking the sale consideration shown at ₹ 36,61,000/- and taking ₹ 60,000/- towards transfer expenses claimed by the assessee arrived at the income amount of ₹ 36,01,600/- and allowed deduction therefrom the indexed cost of acquisition of ₹ 89,393/- and the balance amount of ₹ 35,11,607/- was further reduced by the indexed cost of improvement during 1987-88 as claimed ₹ 1,35,333/- and arrived at a figure of ₹ 33,76,274/- from which he allowed deduction u/s.54EC of ₹ 3,00,000/- and brought to tax the balance amount of long term capital gain of ₹ 30,76,274/-. 5. The assessee filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(47)(v) of the Income Tax Act, and Section 53A of the Transfer of Property b) The above transfer is enforceable in situations where the seller has transferred possession of the land-to the developed and/or received moneys as consideration towards the same; c) If the seller continued to be in substantial control of the land even after the agreement was signed, transfer u/s 2(47) could not be said to have been effected. d) If the agreement was signed and no consideration was received, except the arrangement that some of the flats would be handed over to the seller for his ownership and use, then no transfer u/s.2(47) could not be said to have been effect. 7. The CIT(A) thereafter observed that in the instant case (late) assessee was stated to have signed the agreement with the developer M/s Atrick Construction (P) Ltd, on 18.12.1996 and the land was stated to be handed over on the said date. ₹ 3,00,000 was allegedly stated received by the late assessee at that time, which amount has already been held to be considered as an advance. Since the possession of the land has apparently been handed over to the developer, part of the moneys (Rs. 3,00,000) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a system, then the LTCG will need to be computed on the appropriate shares and the values of the respective flat(s) that was (were) sold. At that time, the sale consideration as known will be employed in the computations, while the indexed will be determined based on the fair market value of the land handed over (which equals by implication, the then present financial value of the flats and garage spaces received in the then future financial year 2000-2001 to the developer as on 18.12.1996. 9. The CIT(A) has also observed that it is to be noted that under the Dayabhaga school, the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors. Under the said school neither son nor daughter has any right in the ancestral property until after the death of his father. The son or daughter is not accorded any rights by birth or by survivorship. On the death of the father the sons and daughters inherit the property as tenants-in-common. After the life time of father any children can file a suit for partition to cull out his/her share in the property regardless whether it is ancestral or self acquired. Therefore, under the Dayabhaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... division/partition of assets have taken place), the Assessing Officer will need to determine one value of the LTCG in the hands of the assessee in the financial year when the flats/garage spaces were sold. 12. Ld D.R. relied on the order of the Assessing Officer. 13. On the other hand, ld Authorised Representative supported the order of the CIT(A). 14. I find that in the case, the undisputed facts of the case are that the assessee is legal successor of late Shri Sitanshu Sekhar Chakraborty and is assessed as legal representative of said late Shri Sitanshu Sekhar Chakraborty. Late Shri Sitanshu Sekhar Chakraborty under a written agreement dated 18.12.1996 handed over the possession of land in question to the builder M/s. Atrick Constructon (P) Ltd., in consideration of receiving ₹ 3,00,000/- and 22% of the constructed area which was to be constructed on the said land. In the previous year relevant to the assessment year under consideration, the assessee late Shri Sitanshu Sekhar Chakraborty received possession of 22% of the constructed area in pursuance to the agreement dated 18.12.1996. On the above undisputed facts, the case of the revenue is that long term capital ..... X X X X Extracts X X X X X X X X Extracts X X X X
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