9911796707
TMI Blog2017 (9) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A)-35/ITO.25(3)(1)/ITA.225/11-12, dated 13-08-2013. The Assessment was framed ITO Ward-25(3)(1), Mumbai for the A.Y. 2009-10 vide order dated 22-12-2011 under section 143(3) of the Income Tax Act, 1961(hereinafter the Act ). 2. The only short issue before us is whether in the facts of the case i.e. assessee entered into agreement dated 19-07-2004 with Mrs. Minu Chawla and Mrs. Meenakshi Chawla, for sale of half share of undivided shop No. 6A, situated at Khan Market, New Delhi for a consideration of ₹ 5 lacs and subsequent agreement dated 03-12-2008 canceling the agreement dated 19-07-2004, the transaction is complete or not? For this assessee has raised following ground No.2: - 2. Additional on account of short term capital gain-Rs. 32,18,000/-. i. The Ld. CIT(A) erred in confirming the action of the lxi. A. 0. in making addition on account of Short Term Capital Gain amounting to ₹ 32, 18,000/- without appreciating the facts and circumstances of the case. The Appellant, therefore, prays that the addition on account of Short Term Capital Gain is without any basis and the same may be deleted. ii. The Id. CIT(A) failed to appreciate that the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndivided share in shop No. 6A, Khan Market, New Delhi for a total consideration of ₹ 5 lacs. The vendee therein have agree to pay initial sum of ₹ 4.90 lacs to the assessee out of which sum of ₹ 40,000/- was paid in cash and the balance ₹ 4.50 lacs was paid by way of cheques dated 19-04-2004 and 19-07-2004 but the above said cheques were never encashed by the assessee and further, assessee could not hand over the possession of the said property as it was already occupied by the tenant Shri Balwant Rai Pruthi. Finally, on 03-09-2005 the probate was granted by District Judge Delhi in Probate case No. 203/2005 in favour of assessee. Finally, on 03-12-2008, agreement to sell was entered into to cancel the agreement dated 19-07-2004, wherein both the parties have agreed to cancel the earlier agreement to sell as the total property was occupied by the tenant due to which the assessee could not hand over the vacant possession of the property. On cancellation, the assessee returned back all the cheques received from the parties who were supposed to purchase half share in the said shop on encashing them. In these agreements, it was also agreed between the parties to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, the capital gain for this half share of the property is to be assessed as short term capital gain. Accordingly, the AO adopted the sale consideration at 37.50 i.e. for the half share of the property out of the total consideration of ₹ 75 lakhs. The AO adopted the cost of acquisition at ₹ 5.32 lakhs and assessed the short term capital gain at ₹ 32.18 lakhs. Aggrieved, assessee preferred the appeal before CIT(A), who also confirmed the action of the AO by observing as under: - In the present case, if we see the facts, we find that the tenant who eventually became the owner through both agreements dated 19-07-2004 03.12.2008 was already in possession of the said property. This fact is nowhere disputed by the appellant. So this part of the Section 53A requirement is met with by the transferee. In terms of the transferor (in this ease the appellant) not encashing the cheques, it is in no way a reflection on the part of the transferee not performing or willing to perform her part of the contract, and, therefore, again this requirement of Section 53A to deem this transaction as transfer in relation to Capital Asset is also met with. In fact in page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that the said cheque of ₹ 4,50,000/-, were in specie, returned back to the purchasers subsequent to cancellation of agreement entered with the purchaser dated 03-12-2008, wherein both the parties have agreed to cancel the earlier agreement to sell as the title of the property was not clear and due to which the assessee could not hand over the vacant position of the property despite a clause in the agreement. With the entering of cancellation agreement dated 03-12-2008, both the parties acted on agreements and accordingly assessee returned to the purchasers all the cheques received, which were supposed for the purchase of half share of this shop. Vide this present agreement dated 03-12-2008, it was also agreed between the parties that all the rights, title and interest of the assessee in the said property will remain forever. 7. In view of this fact, the assessee claimed that the said agreement to sale dated 19-07-2004 was never acted upon and sale was not completed since assessee has not encashed the cheques for an amount of ₹ 4.50 lacs except the cash receipt of ₹ 40,000/- which was ultimately returned back on cancellation agreement dated 03-12-2008. This c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
