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TMI Blog2019 (11) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted or assessed or assessable shall, for the purposes of computing profits and gains from transfer of such asset, be deemed to be the full value of the consideration received or accruing as a result of such transfer. It is manifest from the above provision that it is a deeming provision in so far as the full value of consideration received as a result of transfer of some property, which is held otherwise than a capital asset, is concerned. It is not a charging provision in itself nor does the deeming fiction extends to `transfer . Unless the charge is created first under a specific provision, the deeming provision for computation is not activated. The ld. DR has not drawn our attention towards any provision of the Act, which in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 123, Tisgaon Tal and Dist. Aurangabad. 3. Succinctly, the facts of the case are that the assessee along with certain other persons purchased a piece of land admeasuring 6100 sq. mtrs on 4.4.2003 at Gut No.123, Tisgaon, Waluj, Aurangabad, with her separate share at 66.67% coming to 4066 sq.mtrs. The assessee converted such land from capital asset to stock in trade in the Financial year 2010-11 relevant to the assessment year 2011-12 and computed deemed capital gain u/s.45(2) of the Income-tax Act, 1961 (hereinafter also called `the Act ) at ₹ 89,54,638/-. Thereafter, a partnership firm with the name and style of M/s. Fulzan Properties was brought into existence by the assessee and her husband. The firm undertook const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn for the A.Y. 2011-12 when the capital asset was converted into stock in trade, the AO computed business profit at ₹ 1,42,43,500/-, being, the value adopted for stamp duty as on 01-04-2013 at ₹ 4050 per sq.mtr on 6100 sq. mtrs as reduced by the market value considered on the date of conversion in the F.Y. 2010-11 at ₹ 1.04 crore. He, therefore, added ₹ 89,54,638/- as capital gain in the hands of assessee and a further sum of ₹ 1.42 crore as business income on the transfer of such land to M/s. Fulzan Properties. The ld. CIT(A) echoed the assessment order on this point. The assessee is aggrieved by the decision of the ld. CIT(A). 5. We have heard the rival submissions and gone through the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court has held that if an agreement for transfer of immovable property is not registered, it does not take effect and hence transfer of immovable property, otherwise than through a registered agreement, does not amount to `transfer u/s 53A of the TPA in view of the 2001 amendment and also simultaneous amendment to sections 17(1A) and 49 of the Registration Act, 1908. Their Lordships further observed in para 19 of the judgment that: `An agreement of sale which fulfilled the ingredients of Section 53A was not required to be executed through a registered instrument. This position was changed by the Registration and Other Related Laws (Amendment) Act, 2001. Amendments were made simultaneously in Section 53A of the Transfer of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot only no registered sale deed was executed by the assessee in favour of M/s Fulzan Properties, but even the possession was also not given to be enjoyed as an owner. There are two parts of the ultimate property, namely, the superstructure which is owned by the firm and the land beneath, which is owned by the assessee. In view of the fact that the assessee did not transfer the land to M/s. Fulzan Properties, we hold that the authorities below were not justified in treating it as a case of sale, being, transfer of land by the assessee to the firm. 8. At this juncture, it is significant to note the `Special provision for full value of consideration for transfer of assets other than capital assets in certain cases as containe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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