9911796707
TMI Blog2020 (12) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT] this proviso will have to be held as retrospective applicable from the date of insertion of section 50C w.e.f. 01-04-2003. Our view is fortified by a recent judgment rendered by the Hon ble Madras High Court in CIT Vs. Vummidi Amarendra [ 2020 (6) TMI 74 - ITAT CHENNAI] - It is, therefore, held that the alternate plea raised by the ld. AR for adopting stamp value on the date of agreement in the year 2000 instead of the date of registration in 2006 is hereby countenanced, in principle. Transfer of asset u/s 2(47) - transfer took place on 06.05.2000, being the date of agreement or contradicted by the Revenue by making out a case that the date of registration, being, 03-08-2006 is the real date of transfer attracting section 45 - assessee handed over possession of the property to M/s. V.S. Kolbhor Associates in the year 2000 on receiving substantial part of consideration. This, in our opinion, constituted transfer u/s. 2(47)(v) of the Act read with section 53A of the TPA attracting taxability of capital gain in the A.Y. 2001-02. As the `transfer took place in the said earlier year, it cannot once again take place in the assessment year 2007-08 attracting taxation. Set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z. 03-08-2006, which fell in the previous year relevant to the assessment year under consideration. Invoking the provisions of section 50C of the Act, the AO added a sum of ₹ 75,01,976/- in the total income of the assessee, being one half share of additional capital gain. The assessee s contention that the transfer took place way back on 06-05-2000 on entering into contract and handing over the possession of the property to M/s V.S. Kolbhor Associates after receipt of substantial part of sale consideration, did not find favour with the AO. The ld. CIT(A) echoed the assessment order on this issue. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 3. We have heard the rival submissions through virtual court and scanned the relevant material on record. The facts are not in dispute. However, a little elaboration of the primary and essential facts is essential. The assessee and his brother, Dattatray Laxman Khandge, the other assessee in the present batch of appeals, inherited land at Survey Nos. 676/677/679 after the death of their father Shri Laxman Tukaram Khandge. An agreement was entered into on 03-12-1984 by their father with one Mr. Kuldeep Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of consideration and the date of registration for the transfer of the capital asset are not the same, the value adopted by the stamp valuation authority on the date of agreement may be taken for the purposes of computing full value of consideration for such transfer. This proviso unequivocally states that if the date of agreement fixing the amount of consideration is different from the date of registration for the transfer of the capital asset taking place later on, the stamp value should be considered with reference to the date of agreement and not the date of registration. The second proviso to section 50C(1) concomitantly states that: `the first proviso shall apply only in a case where the amount of consideration, or a part thereof, has been received by way of an account payee cheque or on or before the date of the agreement for transfer . On going through the prescription of the two provisos which have been inserted by the Finance Act, 2016 w.e.f. 01-04-2017, it is overt that the adoption of the stamp value with reference to the date of agreement as discussed in the first proviso will be valid only if the full or part consideration has been received through banking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went on to hold that: `where a benefit is conferred by legislation, the rule against a retrospective construction is different. If legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally and where to confer such benefit appears to have been the legislators object, then the presumption would be that such legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. When we examine the content of the two provisos to section 50C(1) in juxtaposition to the language of sub-section (1), it gets graphically clear that the beneficial proviso has been inserted in order to benefit some assesses who enter into agreement prior to the date of registration and also simultaneously receive full or a part of consideration. Such beneficial provision does not inflict a corresponding detriment to other assessees or the public generally. Since object of the first proviso to section 50C(1) is to confer a benefit to certain class of assesses in the given situation, going by the ratio laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the doctrine of incorporation will get attracted and have the effect of bodily lifting and reading such later provision in section 2(47)(v) of the Act. Section 53A of the TPA, as applicable on the date of agreement, namely, 06-05-2000, read as under: ₹ 53A. Part performance.-Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. . The amendments carried out to section 53A of the TPA and Section 14 of the Registration Act, 1908, both with effect from 24- 09-2001, necessitate registration of the contract as sine qua non for constituting transfer u/s.2(47) of the Act. Thus, in the period posterior to the amendment to section 53A of the Transfer of Property Act and Section 14 of the Registration Act w.e.f. 24-09- 2001, registration of contract has now become mandatory to constitute transfer . The Hon ble Apex Court in CIT VS. Balbir Singh Maini (2017) 398 ITR 531 (SC) has held that: `after the commencement of the Amendment Act of 2001, if an agreement, like the JDA in the present case, is not registered, then it shall have no effect in law for the purposes of Section 53A. As a logical corollary, the position is otherwise in the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
