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TMI Blog2021 (1) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-2007 relevant to the assessment year 2007-2008. 3. Alternatively, the learned assessing officer erred in ignoring the order of the CIT-Appeal in the assessee's co-owners case. On the same property and same JDA, the learned CIT-Appeal, decided the issue of point of taxation of IDA agreement and held that the capital gain tax liability arises for the assessment year 2011-2012 only. 4. Alternatively, the learned assessing officer erred in invoking section 50C of the Act in spite of the fact that there was no registration taken place during the year under consideration. Only in the case of registration, AO can invoke 50C of the Act. 5. Alternatively, even if 50C of the Act is invoked, the learned assessing officer, adopted the guideline value at Rs. 12000/- per sq.ft instead of Rs. 3500/- prevailing at that time [upto 3 1.03.2012, the guideline value of the land is Rs. 3500/- per sq.ft]. 6. Alternatively, the learned assessing officer, erred in applying Rs. 12000/- per sq.ft, for the sold area of 40821 sq.ft in spite of the fact that the assessee sold the property as per the registered guideline value prevailed at the date of sale. 7. The learned assessing officer erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse to notice issued u/s.148 of the Act. The case has been selected for scrutiny and during the course of assessment proceedings the AO noted that a survey u/s.133A of the Act was conducted in the case of M/s.Paramount Builders (Chennai) Limited by the Investigation Wing on 05.03.2014. During the course of survey, it was ascertained that the assessee and 13 others had entered into Joint Development Agreement (JDA) on 27.06.2006 with M/s. P.S.Srijan Realty for development of property situated at No.137. Velachery Main Road, Velachery, Chennai. As per the terms of JDA between the parties, the assessee and other 13 co-owners has agreed to share developed property in the ratio of 50% for the developers and 50% for the land owners. The assessee has originally offered capital gain derived from transfer of property in pursuant to JDA for the previous year 2013-14 relevant to assessment year 2014-15. However a revised return was filed on 19.09.2017 by withdrawing the claim of capital gain offered to tax on transfer of property pursuant to JDA based on subsequent decision of ITAT, Chennai in one of co-owners case wherein it was held that the point of taxation for transfer of property is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 and hence by taking note of subsequent sharing agreement between the assessee and builders dated 10.07.2013 computed long term capital gain for the assessment year 2014-15. The ld.DR further submitted that as per the amended provisions of section 17(1A) of Indian Registration Act, 1908, unless a document giving possession of any immovable property is not registered as required under the Act, the same cannot be considered as valid document which confers a right and title in the property and hence on the basis of subsequent agreement dated 10.07.2013 on which the parties have agreed for allocation of super built up area, the capital gain on said transaction accrues when both the parties have agreed to allocate respective share in the constructed building. The ITAT while deciding the appeals filed by other co-owners has not considered this aspect and hence it cannot be said that present appeal is covered by the decision of ITAT in the case of other coowners. The ld.DR has filed detailed written submissions of the Revenue which is reproduced as under:- 1.1 The Appellant assessee Ms, Faiza Hameed has not filed a return of income for the Assessment year in reference i.e. A.Y.2014-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Assessment year in which the LTCG on sale of land is to be charged to tax? is decided. The Hon'ble ITAT, following it's own judgement in the case of another co-owner Mr. Shafiq Mohammed Shah in ITA No.s 945 & 1331/ CHNY/2016 dated 11-05-2017 decided that the LTCG income on sale of land is to be charged to tax in A.Y.2007-08. 2.5 One important fact in this regard is that the assessee has recognised the LTCG income for the A.Y. 2014-15 by payment of Advance tax of Rs. 20,00,000/- on 29-03-2014 and Self-Assessment tax of Rs. 41,20,000/- on 17-03-2015. In addition to this, apart from recognising such Income and paying the advance tax & self assessment tax, still no return of income was filed voluntarily. 2.6 However, later a Return of Income was filed on 19.09.2016, offering LTCG in question to tax for A.Y.2014-15, by the appellant. 2.7 Further during the assessment proceedings, in response to the notice u/s 142(1) calling for details, issued during the course of the assessment, the appallent submitted a note as under: "In this case of joint development possession of the land was handed over to the developer only for construction purpose. This fact was clearly mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier. The Assessee, having not filed the original Return of income u/s 139(1) in time and the due date for filing of even a belated return of income for the assessment year 2014-15 is over by 31-03-2016, the manual return handed over to the Assessing officer alongwith a letter dated 06-06-2017 filed on 12-06-2017 is invalid and Non-est. There is no other method by which the assessee can correct the income/ Return of income, as has been held by The Apex Court in the case of Goetze (India) Limited Vs CIT. [2016] 284 ITR 323 Therefore, the income of LTCG offered by the assessee to tax for the A.Y. 2014-15 shall be and shall only be assessed in the A.Y. 2014-15 and hence this ground of the assessee may please be dismissed. 3.. Applicability of the order in ITA.NO. 401/Chny!2018 read with order in in ITA No.s 945 & 1331/ Mds/2016 in the case of the coowners to the case/ appeal of the appellant: 3.1 During the course of the appellate proceedings before the Honourable bench, written submissions were made on behalf of the appellant on 10-12-2020 as per which it was submitted that the case of the appellant is covered by the decisions of the other co-owners cases by the Honourable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents containing contracts to transfer for consideration, any immovable property 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 Registration and Other Related Laws (Amendment) Act, 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." 3.5 Accordingly, the provisions of Section 53A of TP Act has also been modified in as much as the words "the contract though required to be registered, has not been registered, or" have been omitted w.e.f 24-09-2001, by S.10 of Act 48 of 2001. 3.6 In view of the above legal proposition, any contract to be recognised as an instrument of contract U/s 53A of The TP Act needs to be registered under The Registration Act, 1908. This ratio was also laid down by The Punjab & Haryan High Court in C.S.Atwal Vs CIT [2015] 59 taxmann.com 359 (P&H which inturn was affirmed by the Apex Court, reported in [2017] 86 taxmann.com 94 (SC). However, the said amendment in the Sec. 17 of the Registration Act, 1908, was not properly put forth by the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 arises only in the financial year 2006-07 relevant to assessment year 2007-08, when the assessee has entered into JDA with the developer and also hand over physical possession of land to the developer. The said decision has been subsequently followed in series of decisions in other co-owners case including in the cases of Shri Mafaz Mohammad in ITA No.1759/CHNY/2017 vide order dated 01.03.2018, Smt.Kathijathu Nasreen in ITA No.1757/CHNY/2017 vide order dated 01.03.2018 and Shri Sathak Ahmed Shaw in ITA No.401/CHNY/2018 vide order dated 05.10.2018. The facts being identical in the present case and also the transaction of capital gain arises out of JDA dated 27.06.2006 between the assessee and other 13 co-owners, we are of the considered view that the issue involved in the present appeal is squarely covered in favour of assessee by the decision of ITAT in the above cases and by respectfully following the decision of the co-ordinate bench of ITAT, we are of the considered view that long term capital gain on transfer of land in pursuant to JDA dated 27.06.2006 accrues for the assessment year 2007-08, when the assessee has physically hand over the land to the developer, but not for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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