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TMI Blog2011 (6) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 2004-05. 2. Shri P. Renga Ramanujam, CA represented on behalf of the assessee and Shri Shaji P. Jacob learned Sr. DR represented on behalf of the Revenue. 3. It was submitted by the learned authorised representative that the assessee is a company which is doing the business of manufacture and sale of steel. It was the submission that the assessee had entered into an agreement with M/s. Vijay Shanthi Builders Ltd. for the sale of 5.62 acres of land owned by the assessee. It was the submission that the agreement was entered into on 15.5.1998 and the sale consideration was fixed at ₹ 5.50 crores. The assessee had received an advance of ₹ 50 lakhs on the signing of the sale agreement and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of sec. 2(47) of the I.T.Act, 1961 took place during the assessment year 1999-2000. It was the submission that the Assessing Officer had held that the transfer took place during the assessment year 2004-05, being the assessment year relevant to the year in which the compromise deed was passed. It was the submission that as per the provisions of sec. 53A of the Transfer of Property Act, an agreement for the sale of the property had been drawn up on 15.5.1998 and the power of attorney had also been given to the buyer being M/s. Vijay Shanthi Builders Ltd. on 27.11.1998 and possession also having been handed over on 27.11.1998 the capital gain was not liable to be assessed during the assessment year 2004-05 but was only for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission that the Memo of Compromise entered into on 19.7.2003 would have to be treated as the date on which the transfer took place in view of the provisions of section 53A of the Transfer of Property Act. It was the submission that as per section 53A of the Transfer of Property Act, there should be a contract for the sale and acts should have been done to comply with the contract. It was the submission that the fact that the criminal complaint has been filed shows that there was no intention to comply with the contract of sale entered into on 15.5.1998 and it was only by the compromise deed that the intention to comply with the contract came into play on 19.07.2003 and consequently the capital gain was liable for the assessment year 2004-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the PARTY OF THE FIRST PART to return the advance already received after deducting damages at 12% of the advance received to the PARTY OF THE SECOND PART and in such an event this agreement shall automatically stand cancelled. A perusal of the memo of compromise dated 19.7.2003 clearly shows that the assessee had conferred the power to convey the undivided shares in the schedule mentioned property in favour of third parties by a deed of power of attorney dated 27.11.1998. Clause 1 of the memorandum of compromise also ratifies the power of attorney executed in favour of Shri Chandran Kumar by virtue of the deed of power of attorney dated 27.11.1998. Clause 4 gives the break up of the 8 cheques for payment of the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life again on 19.07.2003 relevant to the assessment year 2004-05. Further on the specific query from the Bench as to whether all the cheques as mentioned in the compromise deed have been encashed, the answer to which was Yes . This further supports that the transfer took place during the assessment year 2004-05 as the last cheque is dated 25-01-2004. This view of ours also finds support from the decision of the Hon'ble jurisdictional High Court in the case of Chandulal Kamdar, referred to supra as also the decision of the Hon'ble Bombay High Court in the case of Zuari Estate Development And Investment Co. Pvt. Ltd., referred to supra. In the circumstances, we are of the view that the capital gains has rightly been brought to tax in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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