IT: Property can be held to be transferred under a Development Agreement only when possession is handed over to developer, and not on agreement date, when only a small portion of consideration is received
■■■
[2013] 37 taxmann.com 9 (Mumbai - Trib.)
IN THE ITAT MUMBAI BENCH 'J'
Bhatia Nagar Premises, Co-operative Society Ltd.
v.
Income-tax Officer, Ward-24 (3)(1)*
RAJENDRA SINGH, ACCOUNTANT MEMBER
AND SANJAY GARG, JUDICIAL MEMBER
AND SANJAY GARG, JUDICIAL MEMBER
IT APPEAL NO. 7789 (MUM.) OF 2012
[ASSESSMENT YEAR 2009-10]
[ASSESSMENT YEAR 2009-10]
JUNE 21, 2013
Section 2(47) of the Income-tax Act, 1961, read with section 53A of the Transfer of Property Act, 1882 - Capital gains - Transfer [Development Rights Agreement] - Assessment year 2009-10 - Whether, where assessee-housing society entered into Development Rights Agreement (DRA) with developer, transfer of property could be said to have taken place only when possession was handed over to developer, and not on date of agreement, when only a small portion of consideration had been received - Held, yes [Para 11] [In favour of assessee]
FACTS
| ■ | The assessee housing society was the owner of the plots on which building consisting of three blocks had been constructed during the year 1967-68. The assessee-society entered into a Development Rights Agreement (DRA) with a developer in the year 2008-09 for redevelopment of the property and the agreement was registered on 12-2-2009. The property was having FSI of 2803.60 sq. meter. Additional FSI of 2803.60 meter also became available in view of the amendments in the Development Control Regulation (DCR). Further FSI of 33 per cent was also available on account of new notification of the State government. The developer was authorized to demolish and reconstruct the existing residential building and to provide residential units with an additional 28 per cent carpet area to the existing members. He was also required to pay to the society a sum of Rs. 4.85 crore in instalments. In return, the developer was authorized to construct new buildings on additional FSI available to the society after obtaining TDR certificates. The developer however, had neither obtained IOD and CC till date, nor had the old building had been demolished. | |
| ■ | The Assessing Officer held that there was transfer as per section 2(47), and computed capital gains accordingly. The Commissioner (Appeals) upheld the order of the Assessing Officer. | |
| ■ | On assessee's appeal: |
HELD
| ■ | The authorities below applied the provisions of section 2(47)(v), as per which any transaction involving allowing of the possession of any immovable property to be taken or retained in part performance of a contract, of the nature referred to in section 53A of the Transfer of Property Act, 1882 would constitute transfer. Since the DRA was registered on 12-2-2009 and assessee had received a sum of Rs. 1.10 lakh from the developer, the authorities below concluded that there was transfer during the assessment year 2009-10 in view of the provisions of section 2(47)(v). However, the assessee had not transferred the land and the building. The assessee had only transferred its entitlement to additional FSI to the developer for reconstruction of building. The developer was required to demolish and reconstruct the old building with an additional 28 per cent carpet area and hand over the same to the existing members. The transfer was only of additional FSI available to assessee in respect to the existing land for the purpose of construction of additional buildings which would be owned by the developer. Therefore, the real issue is whether assessee has transferred its rights in the additional FSI during the year. [Para 8] | |
| ■ | The DRA clearly provided that the developer was authorized to demolish and reconstruct the old building and simultaneously he was authorized to develop the remaining property consuming the principal FSI of the plot and by buying and utilizing additional TDR as per DCR. Therefore, assessee could transfer the additional FSI only on demolition of old building which has not taken place even till now. The developer has not been able to obtain even the IOD and CC in respect of the reconstruction of the old building as was required to be done under the DRA. The old building has not been demolished till date and the members continue to occupy their flats in the old buildings. In such a situation, it could not be said that the assessee had transferred its rights over the FSI to the developer in assessment year 2009-10. [Para 9] | |
| ■ | The case of the assessee is supported by the decision of Tribunal in case of Asstt. CIT v. GeetaDevi Pasari [2007] 14 SOT 63 (Mum.) (URO), in which it has been held that transfer of property under the Development Rights Agreement could be said to have taken place when the possession was handed over to the developer, and not on the date of agreement when only a small portion of the consideration had been received as earnest money deposit. [Para 10] | |
| ■ | In the present case, the assessee retained full control over the existing building as well as the additional FSI available which had not been parted with. The assessee had received only a sum of Rs. 1.10 lakh from the developer, which is stated to be reimbursement of expenses incurred by the assessee. In these circumstances, it is held that no transfer had taken place in the year under consideration, and therefore, no capital gain can be charged in this year. [Para 11] |
CASE REVIEW
Asstt. CIT v. Mrs. GeetaDevi Pasari [2007] 14 SOT 63 (Mum.) (URO) (para 10) and Maheshwari Prakash-2 Co-op Hsg. Society Ltd.v. ITO[2013] 85 SOT 103/28 taxmann.com 196 (Mum.) (para 12) followed.
CASES REFERRED TO
Asstt. CIT v. Mrs. Geeta Devi Pasari [2007] 14 SOT 63 (Mum.)(URO) (para 3), Megji Mathura Das v. Jt. CIT [2000] 75 ITD 52 (Mum.) (para 5), CIT v. B.C. Shrinivas Shetty [1981] 128 ITR 294 (SC) (para 4), Jetha lal D Mehta v. Dy. CIT [2005] 2 SOT 422 (Mum.) (para 4), Maheshwar Prakash-2 Co-op Hsg Society Ltd. v. ITO [2009] 118 ITD 223 (Mum.) (para 4.1), Land Breez Co-op. Housing Society Ltd. v. ITO [2013] 55 SOT 103/28 taxmann.com 196 (Mum.) (para 4.2), Chaturbhuj Dwarka Das Kapadia v. CIT [2003] 260 ITR 491/129 Taxman 497 (Bom.) (para 5) andChiranjiv Lal Khanna v. ITO [2011] 132 ITD 474/14 taxmann.com 20 (Mum.) (para 5).
S.D. Srivastava for the Appellant. Ketan L. Vajani for the Respondent.
ORDER
Rajendra Singh, Accountant Member - This appeal by the assessee is directed against the order dated 29.10.2012 of CIT (A) for the assessment year 2009-10. Though assessee has raised several grounds of appeal, the only effective ground is regarding taxability of capital gain of Rs.. 538629592 on account of Development Rights Agreement (DRA).
2. The facts in brief are that assessee is a cooperating housing society registered under the Maharashtra cooperative society Act 1986. The assessee society is absolute owner of land/plot situated and lying at CTS survey no. 337/1, 337/2, 337/3, 337/4, 337/5, 337/6, 337/7, 337/7, 337/8, 337/9, 337/10, at Shantilal Modi Road, Kandivali (West), Mumbai 400 064 ad measuring about 2803.60 square meter. on the said land, building consisting of three blocks was constructed in the year 1967-68 and allotted to 59 members including State Bank of India. The Total carpet area of all the flats taken together was 29666 square feet. Flats have been allotted to the share holders who are the members of society and in occupation of the respective flats. The society in the special general meeting on 4.11.2007 passed a resolution, for re-development of the society property and in pursuance of the said resolution entered into a development rights agreement (DRA) with M/s Ankur Reality Pvt. Ltd., which was approved by the society members and the DRA was registered on 12.2.2009 by the developer who had paid the desired stamp duty.
2.1 The property was having floor space index (FSI) of 2803.60 Square meter and additional FSI of 2803.60 sq. meter in the form of TDR. Further, FSI of 33% was also available on account of new notification of the State Government. In terms of the DRA, M/s Ankur Reality was authorized to demolish and reconstruct the existing residential building and reconstruct the additional building having ground plus of 9 floors along with basement for storage. The developer was required to provide residential units with an additional 28% carpet area to the existing members. The developer was also authorized to construct new building on the additional FSI available to the society after obtaining the necessary TDR certificates, DRA required the developer to pay a sum of Rs.. 3.05 crore as corpus fund to the society, additional sum of Rs.. 1.50 crore in lieu of additional FSI and Rs.. 30 lakh as additional benefit on account of reduction in area for the reason of road widening, nallah etc. Thus, the society was to receive the total of 4.85 crore from the builder in terms of the agreement.
2.2 The agreement further provided that in case the developer is not in a position to obtain Intimation of Disapproval (IOD) and commencing certificate (CC) within the six month of the agreement, the agreement shall be terminated without any further notice. It also provided that even if IOD and CC had been obtained in time but the developer is not in a position to complete the work of construction of the new building within a period of 36 months on account of his deliberate acts and omissions the society would be entitled to terminate the agreement by giving one month notice to the developer. As the developer could not obtained the IOD and CC within the prescribed time limit the society as per the resolution dated 26.9.2010 passed in the AGM decided to cancel the DRA, and in response to the cancellation notice published in news papers the developer filed arbitration petition before the Hon'ble Bombay High Court. Subsequently, consent terms were agreed between the society and the developer dated 26.10.2011 which were signed under the seal of the High Court. In the consent terms, the main terms and conditions of the DRA were retained and the variations were only in relation to the deadline for submission of plans and its approval by the society, completion of legal processes etc. The consent terms also provided that the developer will pay rent to the members at the rate of 40/- per square feet for the period of first 12 months, at the rate of 45 square feet for the period of next 12 months and the rate of 50/- per square feet in case of delay of projects for the third year and in case of further delay the developer was to pay incremental of 10% in every term till possession. The developer was also required to allocate 22 car parking space to society without any cost. 50% of the balance car parking on the open car parking shall belong to the society and the developer was also required to pay Rs.. 1000/- per square feet to the society members individually. The clause (17) of the consent terms also provided that the developer shall pay to the assessee the legal cost including IT matters, professional tax and solicitor tax if any incurred by assessee.
2.3 In the backdrop of above factual position the issue which required consideration at the level of AO was whether assessee was entitled to declare capital gain on account of Development Rights Agreement (DRA). AO noted that assessee in the return of income filed for assessment year 2009-10 had not declare any capital gain. AO asked the assessee as to why capital gain should not be taxed in respect of development agreement. Assessee submitted that it had claimed long term capital loss of Rs.. 2,02,92,400/- in its return of income. AO however, noted that the assessee had not declared any long term capital loss in the return of income and it was only the auditor who in the notes on account had stated that assessee had incurred long term capital loss of Rs.. 2, 02,92,400/- on transactions with the developer. The said loss had been computed after deducting the indexed cost of acquisition of land and building from the consideration receivable of Rs.. 4.85 crore. The auditor also mentioned that assessee had filed petition challenging the constitutional validity of section 50 C. AO further noted that assessee had filed the writ petition consequent to the advice given by the tax consultant Shri Praful L. Vora, in which Shri Vora opined that since the DRA had been registered at the stamp duty value of Rs.. 15,50,00,000/-, there will be long term capital gain of Rs.. 8,64,44,000/- by virtue of the provisions of section 50C. The said capital gain had been computed based on the cost of land and building as on 1.4.1981 at Rs.. 1,18,20,000/- and the indexed at Rs.. 6,85,56,000/-.
2.4 AO observed that the society was absolute owner of the land on which the building had been constructed. The society had a separate identity different from the members and it had entered into agreement with builder as a society. The society, therefore, itself was responsible for any tax responsibility arising out of development rights agreement. The society had received advanced of Rs.. 1.10 lakh from the developer which was duly declared in the balance sheet as on 31.3.2009. He referred to the provisions of section 2 (47) (v) as per which any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, it was deemed to be a transfer. Since assessee had taken advance in the relevant year the assessee was liable to pay tax on capital gain arising out of development rights agreement. AO pointed out that assessee itself in the letter dated 4.10.2010 stated that it had declared long term capital loss of Rs.. 2,02,92,400/-in the return of income. Mr. Praful L. Vora, the tax consultant had also given advice to the assessee that it would be liable to long term capital gain of Rs.. 8,64,44,000/- on the basis of stamp duty value of Rs.. 15,50,00,000/-. AO, therefore, held that assessee was liable for long term capital gain in assessment year 2009-10.
2.5 In regard to the computation of long term capital gain, AO noted that in terms of the DRA, the developer was required to give total carpet area of 38127.36 sq. ft. to the society which was required to be distributed to the existing members. It was also mentioned in the DRA that in case a member wanted to sell the flat to the developer, it will be bought by the developer at the rate of 10,200/- per square feet. Therefore, AO computed the market value of the area constructed by developer for members at Rs.. 38,88,99,072(38127.36 x10,200) in addition, the society was entitled to receive Rs.. 4.85 crore and also entitled to get additional parking space which was estimated by AO at Rs.. 50,00,000/-. Thus the total consideration was computed at Rs.. 44,23,99,072/-. AO also noted that as per the consent terms, the cost relating to the Income tax matters was to be borne by the developer. Income tax liability was computed by AO at Rs.. 16,47,86,520/-. Thus he computed the long term capital gain at Rs.. 538629592/- after deducting the indexed cost of acquisition of Rs.. 6,85,56,000/-(4,42,39,99,072-6,85,56,000+ 16,47,86,520). AO also observed that long term capital had been computed without prejudice to the application of section 50C which if in future is found to be applicable, the capital gain would have to be computed on the basis of stamp duty value.
3. Assessee disputed the decision of AO and submitted before CIT (A) that in terms of the DRA it was the members who had the entitlement for accommodation in the new building. A sum of Rs.. 4.85 crore received by the society was also required to be distributed to the members only. The rent for temporary rented accommodation was also required to be given by the developer to the members along with reimbursement of shifting expenses etc. Therefore consideration received or receivable in terms of the DRA cannot be taxed in the hand of the society. It was also pointed out even if the capital gain is considered in the hands of society, no transfer had taken place during the year which was necessary for charging of capital gain. Assessee had only received a sum of Rs. 1.10 lakh by way of earnest money. Assessee society had not given possession of the premises occupied by the members for re-development no possession has been given even till date. Assessee referred to the decision of Tribunal in case of Asstt. CIT v. Mrs. GeetaDevi Pasari[2007] 14 SOT 63 (Mum.)(URO) in which it was held that transfer was not complete under section 2(47)(v) without handing over the possession. The same view had been taken by the Tribunal in case of Magji Mathradas v. Jt. CIT [2000] 75 ITD 52 (Mum.). Thus even if capital gain could be charged, the same could not be done in this year as there were no transfer. Assessee also pointed out that writ petition filed by assessee challenging the constitutional validity of section 50C has been dismissed by the Hon'ble High Court and, therefore, the capital gain if any was required to be computed on the basis of stamp duty value. In such a case the assessee had right to object to such stamp duty valuation during the assessment proceedings which has to be referred to Departmental Valuation Officer.
3.1 CIT (A) did not accept the contentions raised by assessee. It was observed by him that even though the assessee had cancelled the DRA, the same had been challenged by the developer and subsequently consent terms had been signed and that in the consent terms both the parties had agreed and declared that the development rights agreement dated 2.6.2008 was valid, binding and enforceable. Therefore, income accruing as per the DRA was taxable. The CIT (A) did accept the plea of assessee that any consideration received or receivable belonged to the members. It was observed by him that land and building in question belonged to the assessee who was the absolute owner and the income arising out of that had to be taxed in case of assessee. In fact, assessee itself had agreed that income was taxable in case of assessee which was clear from the fact that it had itself admitted capital loss on the transaction and also filed the opinion of tax consultant Shri Praful L. Vora as per whom long term capital gain was chargeable at Rs.. 8,64,44,000/- on the basis of stamp duty value which had been accepted by assessee before the Hon'ble High Court of Bombay during the writ proceedings. As regards the year of taxability, CIT (A) observed that assessee had received the part of consideration of Rs.. 1.10 lakh on 2.6.2008 and, therefore in terms of the provisions of section 2(47) (v) long term capital gain was taxable in this year in respect of the developments right agreement. CIT (A) also upheld the computation of long term or the gain made by AO at Rs.. 53,86,29,592/- and observed that in case it was found that provisions of section 50C, the capital gain would have to be computed under that section, aggrieved by the decision of CIT (A) assessee is in appeal before Tribunal.
4. Before us, learned AR for assessee giving the background of the case submitted that the society building had been constructed in the year 1967-68 and the flats had been allotted to the members and the land had been conveyed to the society in February 1969. It was further submitted that in the year 1991 the development control regulations (DCR) were relaxed as per which the society became entitled for additional FSI on which further construction could be done after obtaining TDRs. The assessee society had therefore, entered into the development rights agreement with the developer for transfer of this additional FSI to the builder in lieu of the reconstruction of the old building and further consideration of Rs.. 4.85 crore had to be received from the builder. It was pointed out that additional FSI had been received by assessee in view of the Government regulations and there was no cost incurred by assessee and since there was no cost of acquisition involved, no capital could be charged in view of the judgment of Hon'ble Supreme Court in case ofCIT v. B.C. Shrinivas Shetty [1981] 128 ITR 294. Reliance was also placed on the decision of Tribunal in case of Jetha lal D Mehta v. Dy. CIT[2005] 2 SOT 422 (Mum.) and another decision of Mumbai bench of Tribunal in case of Maheshwar Prakash-2 Co-op Hsg. Society Ltd. v. ITO[2009] 118 ITD 223 (Mum.) in which following the judgment of Hon'ble Supreme Court in case of B.C. Srinivas Shetty (Supra), the capital has been found not leviable in a case when the cost of acquisition was nil.
4.1 It was also submitted that the capital gain could not be taxed in this case in the year under consideration as there was no transfer of capital asset in the year. It was submitted that the society had not given possession of the building to the builder for redevelopment nor any IOD and CC had been obtained by the developer till date. He referred to clause (j) of DRA as per which developer was authorized to demolish and reconstruct the building and simultaneously he was authorized to develop the remaining property by consuming the principal FSI of the plot and by buying and the additional TDR as per DC regulations. Thus the transfer of FSI to the builder can take place only after obtaining IOD and CC for reconstruction of new building. In this case the developer had not obtained approval of building plan and CC and the old building was still in occupation of the existing members. Therefore, it was clear that no possession had been handed over to the builder and no transfer had thus taken place. In such a situation, it was argued that the capital gain could not be charged in assessment year 2009-10.
4.2 It was also pointed out that assessee had not received any part of the consideration. The assessee had received only the earnest money of 1.10 lakh which was nothing but reimbursement of expenses incurred by assessee which were at Rs.. 1,21,276/- as per details given at page 106 of the paper book. Assessee neither having received any substantial part of the consideration nor the possession of the property, having not been parted with the provisions of section 4 (47) (v) could not be applied and no capital gain could be charged. Reliance was placed on the decision of Tribunal in case ofGeeta Devi Pasari (supra) which it was pointed out has been held by the Hon'ble High Court of Bombay in the same case as reported in (17 DTR 280). Reliance was also placed on the decision of Tribunal in case of Megji Mathura Das (supra) and another decision of Tribunal in case of Land Breez Co.Op. Housing Society Ltd. v. ITO [2013] 55 SOT 103/28 taxmann.com 196 (Mum.).
5. Learned DR appearing for the revenue on the other hand strongly supported the orders of authorities below. It was argued that the date of development agreement is the date transfer for the purpose of application of section 2(47) (v). Reliance was placed on the judgment of Hon'ble High Court of Bombay in case of Chaturbhuj Dwarka Das Kapadia v. CIT [2003] 260 ITR 491/129 Taxman 497. As regards the cost acquisition of FSI it was submitted that same could not be considered as nil, as the entitlement to above FSI was because of the land on this ground it could not be argued that no capital gain could be taxed. Reliance was placed on the decision of Tribunal in case of Chiranjiv Lal Khanna v. ITO [2011] 132 ITD 474/14 taxmann.com 20 (Mum.).
6. In reply, learned AR for assessee submitted that the judgment of Hon'ble High Court of Bombay in case of Chaturbhuj Dwarka Das Kapadia(Supra) had been considered by the Tribunal in case of Geeta Devi Pasari (supra) and also by the Hon'ble High Court in the said case. It was pointed out even the Hon'ble High Court in case of Chaturbhuj Dwarka Das Kapadia (Supra) had held that there could be transfer only on parting of the substantial control over the property. In this case the society during the year retained the full control over the building and, therefore, there was no question of transfer in that year.
7. We have perused the records and considered the rival contentions carefully. The dispute is regarding taxability of capital gain on account of Development Rights Agreement entered into by the assessee with the developer i.e. M/s Ankur Reality Pvt. Ltd. The assessee society was the owner of the plots on which building consisting of three blocks had been constructed during the year 1967-68. The flats in the buildings were allotted to 59 members of society including State Bank of India. The assessee society in the year 2008-09 entered into DRA with the developer for redevelopment of the property and the agreement was registered on 12.2.2009. The property was having FSI of 2803.60 sq. meter and additional FSI of 2803.60 meter also become available in view of the amendments in the DCR. Further FSI of 33% was also available on account of new notification of the State Government. The developer was authorized to demolish and reconstruct the existing residential building and to provide residential units with an additional 28% carpet area to the existing members. He was also required to pay to the society a sum of Rs.. 4.85 crore in installments. In return, the developer was authorized to construct new buildings on additional FSI available to the society after obtaining TDR certificates. As the developer could not obtain IOD and CC within the prescribed time limit as per the terms and conditions of DRA the society vide resolution dated 26.9.2010 decided to cancel the DRA. In response to which the developer filed arbitration petition before the Bombay High Court. Subsequently, consent terms were arrived at between the two parties dated 26.10.2011 under the seal of the High Court. The main terms and condition of DRA were retained in consent terms in which there was additional provision for providing compensation for alternate accommodation to the members, to allocate 22 car parking space to the society without any cost and to reimburse the legal cost including the Income Tax matters, professional fee and solicitor fee if any incurred by the society. The developer however has still not obtained IOD and CC nor the old building had been demolished till date. The issue is whether on the facts of the case capital gain can be charged on account of Development Rights Agreement in the assessment year 2009-10 and, in case, capital gain is chargeable what would be the quantum of the capital gain.
8. The authorities below applied the provisions of section 2 (47) (v) as per which any transaction involving allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act 1882 will constitute transfer. Since the DRA was registered on 12.2.2009 and assessee had received a sum of Rs.. 1.10 lakh from the developer the authorities below have concluded that there was transfer during the assessment year 2009-10 in view of the provisions of section 2 (47)(v) mentioned above. Assessee has however argued that assessee retaining the complete control over the property and having not handed over the possession, there could not be any transfer u/s 2 (47) (v). We find substance in the argument advanced by the learned Authorized Representative for the assessee. The assessee in this case has not transferred the land and the building. The assessee has only transferred its entitlement to additional FSI to the developer for reconstruction of building. The developer is required to demolish and reconstruct the old building with an additional 28% carpet area and hand over the same to the existing members. The transfer is only of additional FSI available to assessee in respect to the existing land for the purpose of construction of additional buildings which would be owned by the developer. Therefore, the real issue is whether assessee has transferred its rights in the additional FSI during the year.
9. The clause (j) of DRA clearly provided that the developer was authorized to demolish and reconstruct the old building and simultaneously he was authorized to develop the remaining property consuming the principal FSI of the plot and by buying and utilizing additional TDR as per DC regulations. Therefore, assessee could transfer the additional FSI only on demolition of old building which has not taken place even till now. The developer has not been able to obtain even the IOD and CC in respect of the reconstruction of the old building as was required to be done under the DRA. The old building has not been demolished till date and the members continue to occupy their flats in the old buildings. In such a situation it could not be said that the assessee had transferred its rights over the FSI to the developer in assessment year 2009-10.
10. The case of the assessee is supported by the decision of Tribunal in case of Geeta Devi Pasari (Supra) in which it has been held that transfer of property under the Development Rights Agreement could be said to have taken place when the possession was handed over to the developer and not on the date of agreement when only a small portion of the consideration had been received as earnest money deposit. The said decision of Tribunal has been upheld by Hon'ble High Court of Bombay as reported in (17 DTR 280). The argument raised on behalf of the department is that the date of development agreement itself constitute transfer date. Revenue has relied upon the judgment of Hon'ble High Court of Bombay in case of Chaturbhuj Dwarka Das Kapadia (supra). We have carefully gone through the said judgment. In that case the assessee had agreed to sell his share of property for a sum of Rs.. 1.85 crore. The assessee agreed in clause (8) to execute limited power of attorney authorizing the builder to deal with the property and also to obtain permission and approval of authorities for construction of building. The clause (9) of the agreement provided that after obtaining necessary permission and approval by the builder and upon receipt of no objection certificate from the income tax department the assessee could grant an irreversible license to the builder to enter the property. By march 1996, the builder had paid almost the entire consideration except a sum of Rs.. 9,98,000/-. The department took the view that the capital gain was chargeable in the assessment year 1996-97. Hon'ble High Court noted from the order of the Tribunal that the builder came into possession of property on the date next to 31.3.1996 i.e. 1.4.1996. Therefore the possession was given only in assessment year 1997-98. The High Court observed that the date of agreement i.e. 18.8.1994 on which the assessee had agreed to execute power of attorney to the builder was relevant date for determining the date of transfer. Further the High Court also noted that the power of attorney had been executed only on 12.3.1999. The High Court, therefore, held that in either case the capital gain could not be chargeable in assessment year 1996-97. The judgment in case of Chaturbhuj Dwarka Das Kapadia (supra) had also came up for consideration before the Hon'ble High Court of Bombay in case of Geeta Devi Pasari (supra). The Hon'ble High Court following the said judgment had held that capital gain could be taxable only in the assessment year in which the purchaser was physically put into the possession of the property. Thus even after considering the judgment in case of Chaturbhuj Dwarka Das Kapadia (Supra) it has been held by the Hon'ble High Court that there will be transfer only in the year of handing over the possession of the property u/s 2(47)(v) as part performance of the contract. The same view has been followed by the Mumbai bench of Tribunal in case of Megji Mathura Das(supra).
11. In the present case as we have mentioned earlier the assessee retained full control over the existing building as well as the additional FSI available which had not been parted with. The assessee had received only a sum of Rs.. 1.10 lakh from the developer which is stated to be reimbursement of expenses incurred by the assessee. In these circumstances we are of the view that no transfer had taken place in the year under consideration and, therefore, no capital gain can be charged in this year.
12. Learned AR for assessee has also argued that the capital gain that can be charged is only in respect of transfer of additional FSI to which the assessee was entitled. The assessee had not transferred nor was required to transfer the land of which the assessee was absolute owner and the building occupied by the members. The transfer could take place only in respect of additional FSI which the assessee had acquired as per the Government policy and there was no cost of acquisition involved. Therefore, it has been argued that no capital gain can be charged in such a case in view of the judgment of Hon'ble Supreme Court in case of B.C. Shrinivas Shetty (Supra). The argument of assessee is supported by the decision of Mumbai bench of Tribunal in case of Jetha Lal D Mehta (supra). The reliance has also been placed on the decision of Mumbai bench of Tribunal in case of Maheshwari Prakash-2 Co-op Hsg. Society Ltd. (supra). In that case also, the issue was chargeability of capital gain on account of additional FSI available to the assessee related to the old building. The Tribunal observed that entire FSI of the land having been exhausted there was no right of additional construction embedded into the land. The additional FSI became available to the assessee due to operation of development control regulation which did not involve any cost. It had been argued before the Tribunal that additional FSI was available only because of ownership of the land and, therefore the cost of land had to be spread over the original FSI and additional FSI as is done in the case of bonus share and thus the additional FSI did have cost attached to it. The Tribunal however did not accept the contentions raised. It was observed that the concept of acquisition of bonus shares could not be imported as bonus shares were issued to the detriment of original shares but in this case there was no detriment to the cost of land rather the same had increased. No contrary decision of any High Court or Apex Court has been brought to our notice. Therefore, following the decision of Tribunal mentioned above no capital gain could be charged on the ground that no cost of acquisition was involved in the additional FSI.
13. In view of the foregoing discussion and for the reasons given earlier, we are of the view that charge of capital gain by the authorities below in the relevant year was not justified. The order of CIT (A) upholding the order of AO is, therefore, set aside. As we have set aside the order of CIT (A) on the legal grounds, it is not necessary for us to go into the dispute relating to computation of the capital gain.
14. In the result appeal of the assessee is allowed.
P.SENRegards
Prarthana Jalan
__._,_.___
No comments:
Post a Comment