Bombay High Court
The Pr. Commissioner Of Income Tax-3 vs Late Miss Ranjana P Doshi on 9 January, 2019
Author: B. P. Colabawalla
Bench: Akil Kureshi, B. P. Colabawalla
40.itxa.1124.16..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 1124 OF 2016
The Pr. Commissioner of Income Tax-3
Pune ..Appellant
Vs.
Late Miss. Ranjana P. Doshi through LRS
and Others ..Respondents
Mr. Tejveer Singh, for the Appellant.
CORAM:-AKIL KURESHI &
B. P. COLABAWALLA, JJ.
DATE :- JANUARY 9, 2019.
P. C.:
This Appeal is filed by the Revenue challenging the judgment of the Income Tax Appellate Tribunal raising following questions for our consideration:-
"Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that no capital gain has arise and is not chargeable to tax in the Assessment Year 2009-10, even though the Development Agreement was entered into on 01.04.2008?
"Whether on the facts and circumstances of the case and in law, the Tribunal has erred in not appreciating that the transfer has took place in Aswale 1/3 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 00:41:17 :::
40.itxa.1124.16..doc the A. Y. 2009-10 as contemplated in section 2 (47) (v) of the Income Tax Act, 1961 r.w.s.53A of the Transfer of Properties Act, 1882, as it was clearly evident that possession in form of general control over the property has been handed over to the developer through the agreement dated 01.04.2008 and the General Power of Attorney without appreciating that it is the substance over forms which prevails?"
2 It is not necessary to record detailed facts. From the record it emerges that the Assessee along with her brother, was the co-owner of land situated at Pune received by her under a Will of her father. Assessee owned 2/3rd share, 1/3 was owned by her brother. They entered into a development agreement on 1.4.2008 with a developer for a consideration of Rs. 34.35 Crores. A sum of Rs. 16.35 Crores was paid before signing the agreement. The Assessee received Rs. 10.90 Crores out of this amount. In the assessment for the Assessment Year 2009-2010 this sum of Rs. 10.90 Crores was taxed as long terms capital gain. The Assesee challenged this before the Commissioner (Appeals) and then before the Income Tax Appellate Tribunal. 3 The Tribunal found that the Assessee had received consideration in different installments after executing the development agreement. She had never parted with the possession of the property till finally the full payment was made Aswale 2/3 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 00:41:17 :::
40.itxa.1124.16..doc much later. The Tribunal rejected the revenue's consideration that in the facts of the case, the capital asset stood transferred on 01.04.2008.
4 This Court in case of Commissioner of Income Tax v/s Dr. Arvind S. Phake and Others (Income Tax Appeal No.139 of 2015 decided on 20 th November, 2017) had confirmed the view of the Tribunal and found that the transfer of capital asset can be stated to have taken place only when the possession of the property was handed over upon receipt of full consideration. The Court held that the investment which was made for the specified securities in terms of Section 54EC of the Act within six months from such date of transfer, would qualify for the exemption.
5 Under the circumstances, we find no question of law arising. The Tax Appeal is dismissed.
( B. P. COLABAWALLA, J. ) ( AKIL KURESHI , J. ) Aswale 3/3 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 00:41:17 :::