Escolar Documentos
Profissional Documentos
Cultura Documentos
Shivam Malhotra
B.Com LLB (Hons.)
A3221614089
8th Semester
Summary
Date and Place : A Sale Deed must mention the Date and
Place of execution of the Sale Deed by the Seller and the
Buyer.
Facts
The facts of the case are that the assessee filed return of
income on 03.03.2008 declaring income of Rs. 99,990/- +
agriculture income of Rs. 1,75,000/-. The Assessing Officer
issued notice under section 148 of the Income Tax Act and
also issued statutory notices. The assessee in reply thereto
submitted that return filed in original may be treated as filed
in response to notice under section 148 of the Act. The
Assessing Officer noted that assessee had sold the land for a
consideration of Rs. 5.50 Cr through a Registered Sale Deed
dated 20.03.2007. The sale consideration comprise of Rs.
8,50,000/- in cash, Rs. 41,50,000/- vide cheque dated
15.03.2007 and Rs. 5 Crore vide cheque No. 009643 undated
from M/s Link Infrastructure & Developers Pvt. Ltd., Delhi.
The proceeds of the aforesaid cheques were realized by
assessee in March, 2007 and 16.06.2008 respectively. The
assessee in reply to the notices offered sale consideration of
Rs. 50 lacs for tax during the year under consideration and
balance amount of Rs. 5 Crore for assessment year 2009- 10
on receipt basis.
The Assessing Officer issued show cause notice and after
considering assessee's reply, referred to the provisions of
Section 53A and 54 of Transfer of Property Act and Section 45
read with Section 2(47)(iv) of the Act as per para 7 of the
assessment order. The Assessing Officer noted from the Sale
Deed that the claim of assessee that sale of land measuring 80
Kanal for Rs. 5,50,00,000/- will take effect at two different
points of time when two different cheques for Rs. 41,50,000/-
and Rs. 5 Crore were encashed, was not in consonance with
existing law. The assessee himself offered for tax an amount of
Rs. 50 lacs during the year and for balance amount of Rs. 5
Crores, the assessee claimed that it will be offered for tax in
assessment year 2009-10, which was not in accordance with
law. The assessee
executed Sale Deed on 20.03.2007 and the sale consideration
was partly received and partly promised. The buyer issued
cheque for Rs. 5 Crores undated bearing No. 009643 to the
assessee and also contracted that the Sale Deed in question
shall automatically be stand cancelled in the event of dishonour
of post-dated cheque. The Assessing Officer framed the
following questions to arrive at the decision :
transfer ?
seller ?
Judgement
The facts of the case also clearly reveal that full payment on
account of sale consideration was essence of the contract not
satisfied by the buyer company at the time of execution of the
sale deed. There is no transfer of capital asset in assessment
year 2007-08. Thus, no income/amount accrued or received by
the assessee on account of transfer of capital asset or on
account of any capital gains till 16.06.2008. Therefore, no
capital gain arise in assessment year 2007-08.
In the result, both the appeals in ITA 18/2016 and ITA 19/2016
are allowed.