Smt. Pratibha Rajendra Chowdhary, Jalgaon V. Income-tax Officer, Ward - 2(3), Jalgaon

ITA 540/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3684 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 16-01-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 26-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Capital asset; Cost of acquisition; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.540/PUN/2018 / ASSESSMENT YEAR : 2012-13 SMT. PRATIBHA RAJENDRA CHOWDHARY, PATIL WADA, BEHIND SBI, WAKI ROAD, JAMNER, JALGAON. PAN : AGYPC1217F VS. ITO, WARD -2(3), JALGAON (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSE D BY THE CIT(A)-2, NASHIK ON 12-10-2017 IN RELATION TO THE ASSESSMENT YEAR 2012-13. 2. THIS APPEAL IS TIME-BARRED BY 105 DAYS. THE ASSESSE E HAS PLACED ON RECORD AN AFFIDAVIT EXPLAINING THE REASONS W HICH LED TO THE LATE FILING OF APPEAL. I AM SATISFIED WITH SUCH APPELLANT BY SMT. DEEPA KHARE RESPONDENT BY SHRI M.K. VERMA DATE OF HEARING 21-02-2019 DATE OF PRONOUNCEMENT 22-02-2019 ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 2 REASONS. THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED FOR HEARING ON MERITS. 3. THE ASSESSEE HAS FILED REVISED GROUNDS. THE FIRST ISS UE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION O F RS.9,68,561/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 4. SUCCINCTLY, THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER (AO) GOT INFORMATION THAT THE ASSESSEE HAD ENTERED INTO A LAND DEAL WITH M/S SANGAM CITY TOWNSHIP PVT. LTD., PUNE (HEREINAFTER CALLED SCTPL) VIDE AGREEMENT DATED 29-07-2011, AS PER WHICH SHE WAS TO RECEIVE TOTAL SALE CONSIDERATION OF RS.43,70,000/-, COMPRISING OF RS.20.00 LAKH AS MONETARY CONSIDERATION AND RS.23.70 LAKH AS NON-MONE TARY CONSIDERATION IN THE SHAPE OF ALLOTMENT OF 2000 SQ.FT. SALEA BLE AREA FLAT TO BE CONSTRUCTED BY THE DEVELOPER. SINCE THE ASSESSEE HAD NOT FILED HER RETURN OF INCOME, THE AO ISSUED NOTICE U/S.148. A RETURN WAS FILED IN RESPONSE TO NOTICE U/S.1 48 DECLARING TOTAL INCOME OF RS.25,600/-, BEING, INTEREST ON SAVINGS BANK ACCOUNT. ON BEING CALLED UPON TO EXPLAIN AS TO WHY NO CAPITAL GAIN WAS DECLARED ON THE TRANSFER OF 4000 SQ FT, THAT IS, 371.74 SQ.MTR AREA OF LAND SITUATED AT VILLAGE ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 3 YERAWADA, SANGAMWADI, PUNE, THE ASSESSEE SUBMITTED THAT SHE ENTERED INTO A DEVELOPMENT AGREEMENT WITH SCTPL FOR TRANSFER OF THIS PROPERTY, BUT ITS POSSESSION WAS NOT HANDED OVER AS THE LAND WAS IN GREEN ZONE WHICH WAS TO BE CONVE RTED INTO YELLOW ZONE AND THEREAFTER BECOMING ELIGIBLE FOR CONVERSION INTO NON-AGRICULTURAL LAND. THE SUM AND SUBSTANCE OF THE ARGUMENT WAS THAT IT WAS A MERE DEVELOPMEN T AGREEMENT WITH SCTPL WITHOUT TRANSFER OF ANY POSSESSION AND HENCE, THE SAME COULD NOT BE CONSIDERED AS TRANSFER OF ACTUAL POSSESSION, SO AS TO CALL FOR CHARGEABILITY UNDER THE HEAD CAPITAL GAINS. THE AO, AFTER NOTING DIFFERENT CLAUSES OF TH E DEVELOPMENT AGREEMENT WITH SCTPL, CAME TO HOLD THAT POSSESSION OF THE PROPERTY WAS HANDED OVER TO SCTPL. NOT ONLY THAT, A SUM OF RS.20.00 LAKH WAS ALSO RECEIVED AS MONETARY CONSIDERATION AND FURTHER THE ASSESSEE ALSO ACQUIR ED NON-MONETARY CONSIDERATION, BEING, A RIGHT IN THE PROPERTY TO BE DEVELOPED ON THE LAND TRANSFERRED, WHICH WAS VALUED BY THE PARTIES THEMSELVES AT RS.23.70 LAKH IN THE AGREEMENT DATED 29-07-2011. SINCE THE SAID PROPERTY WAS PURCHASED BY THE ASSESSEE FOR A SUM OF RS.20.00 LAKH IN LESS THAN 3 MONTH S ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 4 BEFORE THE DATE OF TRANSFER TO SCTPL, THE AO COMPUTED SHORT TERM CAPITAL GAIN OF RS.23.70 LAKH. THE LD. CIT(A) DID NOT CONCUR WITH THE SUBMISSIONS ADVANCED ON BEHALF OF THE ASSESSEE, IN PRINCIPLE, AND HELD THAT THE PROPERTY WAS, IN F ACT, TRANSFERRED BY THE ASSESSEE TO SCTPL. HE, HOWEVER, ACC EPTED THE ASSESSEES CONTENTION THAT THE VALUE OF CONSTRUCTED AREA WORTH RS.23.70 LAKH, TO BE ALLOTTED AFTER A PERIOD OF 8 YEA RS, COULD NOT BE CONSIDERED AS A PART OF FULL VALUE OF CONSIDE RATION AS SUCH. AFTER ALLOWING CERTAIN DISCOUNTING, HE DETERMINED TH E PRESENT VALUE AT RS.9,68,561/- AND SUSTAINED THE ADDITION PRO TANTO . THE ASSESSEE IS AGGRIEVED BY THE SUSTENANCE OF ADDITIO N. 5. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE R ELEVANT MATERIAL ON RECORD. IT IS CLEAR FROM THE FACTUAL MATRIX OF TH E CASE THAT THE ASSESSEE PURCHASED THE EXTANT AGRICULTURAL LAND ON 07-05-2011 FOR A SUM OF RS.20.00 LAKH AND ON 29-07- 2011 ENTERED INTO A DEVELOPMENT AGREEMENT WITH SCTPL FOR A CONSIDERATION OF RS.43.70 LAKH IN TOTAL, COMPRISING OF A SU M OF RS.20.00 LAKH BY CHEQUE IN MONETARY FORM; AND 2000 SQ. FT. OF CONSTRUCTED SALEABLE AREA TO BE ALLOTTED BY THE DEVELOPER WITHIN A PERIOD OF 8 YEARS AT A COST OF RS.23.70 LAKH. TH E CASE ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 5 OF THE ASSESSEE BEFORE THE TRIBUNAL IS THAT NO EFFECTIVE TRAN SFER OF THE LAND TOOK PLACE AND HENCE THERE COULD BE NO COMPUTATION OF CAPITAL GAINS. THE REASON BEHIND THIS ARGUMENT IS THAT THE LAND IS STILL IN GREEN ZONE AND WOULD BE CONSIDERED AS NON-AGRICULTURAL LAND, FIT FOR CONSTRUCTION, ONLY WHEN IT GOES TO YELLOW ZONE. SUM AND SUBSTANCE OF THE LD. ARS CONTENTION WAS THAT ALBEIT THERE WAS A DEVELOPMENT AGREEMENT BUT, IN FACT, THERE WAS NO TRANSFER OF POSSE SSION TO SCTPL WARRANTING THE INVOCATION OF THE PROVISIONS OF SECTION 45 OF THE ACT. 6. FIRST OF ALL, I PROCEED TO DETERMINE IF ACTUAL POSSESSION OF THE LAND WAS GIVEN OVER TO SCTPL. IN THIS REGARD, I NEED TO DELVE INTO THE DEVELOPMENT AGREEMENT DATED 29.7.2011 BETWEEN THE ASSESSEE AND SCTPL, WHOSE COPY HAS BEEN PLACED ON PAGE 25 ONWARDS OF THE PAPER BOOK. PREAMBLE OF THE AGREEMENT STATES THAT THE ASSESSEE PURCHASED RIGHTS, TITLE, OWNERSHIP OF THE SAID LAND ON 07-05-2011 AND WAS PLACED IN ACTUAL POSSESSION AS AN OWNER. IT FURTHER PROVIDES THAT PRESENTLY THE SAID PROPERTY IS SITUATED IN AGRICULTURAL ZONE AS PER THE SANCTIONED DEVELOPMENT PLAN OF PUNE CITY, BUT TAKING ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 6 INTO ACCOUNT THE POSITION, CONTOURS AND OTHER RELEVANT CONSIDERATION, THE SAID PROPERTY MAY BE CONVERTED INTO RESIDENTIAL ZONE. CLAUSE 27 OF THE AGREEMENT DEALS WITH `EXECUTION OF POWER OF ATTORNEY/DECLARATION. IT PROVIDES THAT : `ALONG WITH EXECUTING THESE PRESENTS, THE OWNERS (I.E. ASSESSEE) HAVE TODAY EXECUTED GENERAL POWER OF ATTORNEY IN FAVOUR OF THE DEVELOPER (I.E. SCTPL) AUTHORISING AND EMPOWERING THEM TO DO ONE OR MORE ACTIVITIES FOR DUE AND EFFECTIVE EXECUTION OF THE DEVELOPMENT OF THE SAID PROPERTY, AND SUCH POWER OF ATTORNEY SHALL REMAIN IN FORCE TILL THE COMPLETION OF THE SAID SCHEME, WHICH NOT ONLY INCLUDES CONSTRUCTION, POSSESSION AND INFRASTRUCTURE DEVELOPMENT BUT ALSO THE CONVEYANCES OF THE SAID PROPERTY AND ALL OTHER LAN DS COMPRISED IN THE SCHEME... IT IS APPARENT FROM THE ABOVE CLAUSE OF THE AGREEMENT THAT THE ASSESSEE EXECUTED POA ON TH E SAME DATE IN FAVOUR OF THE DEVELOPER FOR THE DEVELOPMENT O F THE SAID PROPERTY, AND SUCH POA WAS TO REMAIN IN FORCE TILL THE CONSTRUCTION, POSSESSION AND COMPLETION OF THE SCHEME UNDER WHICH THE RESIDENTIAL UNITS WERE EFFECTIVELY SOLD. THUS, IT IS VIVID THAT NO CONSTRUCTION COULD HAVE BEEN DONE WITHOUT ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 7 HANDING OVER POSSESSION OF THE LAND TO THE DEVELOPER. MOREOVER, IT HAS BEEN CATEGORICALLY PROVIDED IN THE CLAUSE FOR GIVING OF THE POSSESSION OF THE LAND. 7. CLAUSE 23 OF THE AGREEMENT WITH THE CAPTION `LICENCE IN RESPECT OF SAID PROPERTY PROVIDES : THAT THE OWNERS (I.E . THE ASSESSEE) HEREIN GRANT LICENCE IN RESPECT OF THE SAID PROPE RTY, IN FAVOUR OF THE DEVELOPER UPON THIS AGREEMENT BECOMING EFFECTIVE AS PER CLAUSE (4) [CLAUSE 4 GIVES EFFECTIVE DAT E OF THE AGREEMENT AS THE DATE OF ITS SIGNING] HEREIN. THE DEVELOPER SHALL BE ABSOLUTELY ENTITLED TO ENTER UPON THE SAID LAND AS WELL AS STRUCTURES STANDING THEREON BY THEMSELVES OR THROUGH .. . IN ORDER TO CARRY OUT DEVELOPMENT ACTIVITIES ON THE SAID LAND. THE SAME CLAUSE FURTHER STATES THAT THE OWNER SHALL NOT BE ENTITLED TO REVOKE THE SAID LICENSE AT ANY TIME ON ANY ACCOUNT . IT IS THUS EVIDENT THAT THE ASSESSEE, IMMEDIATELY ON SIGNING O F THE AGREEMENT, HANDED OVER THE POSSESSION TO THE DEVELOPE R FOR CONSTRUCTION AND FURTHER THIS AGREEMENT IS IRREVOCABLE AT THE INSTANCE OF THE EITHER PARTY. 8. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING S ISSUED SUMMONS U/S.133 TO THE DEVELOPER (SCTPL). IN REPLY , ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 8 THE DEVELOPER STATED THAT THE OWNER HAS GIVEN THE POSSESSION OF THE SAID LAND ON THE DATE OF SIGNING OF DEVELOPMENT AGREEMENT . 9. IN VIEW OF THE FOREGOING DISCUSSION, IT IS CRYSTAL CLEA R THAT THE ASSESSEE DID HAND OVER THE POSSESSION OF THE LAND TO THE BUYER AND THE CONTRARY CONTENTION PUT FORTH ON HER BEHALF IS DEVOID OF MERIT. THE PRESENT SITUATION IS COVERED WITHIN THE DEFINITION OF TRANSFER AS GIVEN IN SECTION 2(47)(V) AS : `A NY 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 SECTI ON 53A OF THE TRANSFER OF PROPERTY ACT, 1882. NOT ONLY THE ASS ESSEE TRANSFERRED THE POSSESSION OF THE LAND TO THE DEVELOPER PURSUANT TO THE AGREEMENT, BUT ALSO RECEIVED A SUM OF RS.20.00 LAKH BY CHEQUE IN PART PERFORMANCE. AS SUCH, IT IS HELD THAT THE ASSESSEE TRANSFERRED THE LAND U/S.2(47) OF T HE ACT AND RESULTANTLY THE PROVISIONS OF SECTION 45 ARE ATTRACTED. 10. THE LD. AR CONTENDED THAT THE LAND TRANSFERRED BY THE ASSESSEE IS AN AGRICULTURAL LAND IN THE GREEN ZONE AND THE SAME HAS STILL NOT BEEN TRANSFERRED TO YELLOW ZONE FOR ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 9 CONSTRUCTION OF RESIDENTIAL UNITS. IN THE LIGHT OF THIS ARGUMENT, SHE CANVASSED A VIEW THAT PRIMARILY, IT IS NOT A CASE OF TRAN SFER AND SECONDLY, EVEN IF IT IS CONSIDERED AS A TRANSFER, THE N THE CONSIDERATION TO BE RECEIVED IN KIND, THAT IS VALUE OF CONSTRUCTED AREA OF 2000 SQ.FT., TO BE ALLOTTED WITHIN EIGHT YEARS AT A COST OF RS.23.00 LAKH, SHOULD BE IGNORED FOR THE PURPOSE OF COMPUTING CAPITAL GAIN. SHE INVOKED REAL INCOM E THEORY TO BOLSTER HER PROPOSITION. IN SUPPORT OF HER CONTENTION, SHE RELIED ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN CIT VS. CHEMOSYN LTD. (2015) 371 ITR 427 (BOM.) . 11. IN MY HUMBLE OPINION, THIS CONTENTION OF THE LD. AR IS ALSO BEREFT OF ANY FORCE. SECTION 45(1) OF THE ACT PROVIDE S THAT : `ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAP ITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL, SAVE OR OTHERW ISE PROVIDED IN SECTIONS . BE CHARGEABLE TO INCOME- TAX UNDER THE HEAD CAPITAL GAINS AND SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE. IT IS MANIFEST FROM THE PRESCRIPTION OF SECTION 45(1) OF THE ACT THAT CAPITAL GAIN IS TO BE COMPUTED IN THE YEAR IN ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 10 WHICH THE TRANSFER TAKES PLACE. COMPUTATION OF CAPITAL GAIN IS ENSHRINED IN SECTION 48, WHICH PROVIDES THAT THE INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS SHALL BE COMPUTED BY DEDUCTING EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH TRANSFER AND THE COST OF ACQUISITION AND COST O F IMPROVEMENT THEREON FROM FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER OF CAPITAL A SSET. ON GOING THROUGH THE PRESCRIPTION OF SECTION 48, IT TRANSPIRES THA T WHAT IS CONTEMPLATED AS THE FULL VALUE OF CONSIDERATION IS THE AMOUNT WHICH IS RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF CAPITAL ASSET. NOT ONLY THE AMOUNT ACTUALLY RECEIVED BUT ALSO THE AMOUNT ACCRUING TO THE ASSESSEE IS LIAB LE TO BE INCLUDED IN THE SAME. AS THE ASSESSEE IN THE INSTANT C ASE ACQUIRED THE RIGHT TO RECEIVE 2000 SQ.FT. OF SALEABLE AREA IN THE NEW BUILDING TO BE CONSTRUCTED, WHICH RIGHT IS A PART OF CONSIDERATION AND HAS ACCRUED TO THE ASSESSEE, THE SAME IS HELD TO HAVE ACCRUED TO THE ASSESSEE QUALIFYING FOR INCLUSION IN THE FULL VALUE OF CONSIDERATION. IT IS RELEVANT TO NOTE THAT THE RIGHT TO RECEIVE CONSIDERATION IN KIND IS NOT MARRED BY ANY CONTINGENCY. FURTHER, IT IS A CRYSTALLIZED RIGHT, WHICH UNDER N O ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 11 SITUATION, CAN BE DENIED TO THE ASSESSEE BECAUSE THE AGREE MENT ITSELF IS IRREVOCABLE. IT IS NOT THE CASE OF THE ASSESSEE THA T THERE IS ANY CLOUD HOVERING OVER THE CONSIDERATION IN KIND. IN SU CH A SCENARIO, IT IS DIFFICULT TO ACCEPT THE CONTENTION OF THE LD. AR THAT THE VALUE OF CONSIDERATION IN KIND SHOULD BE IGNORED. 12. I HAVE GONE THROUGH THE FACTUAL PANORAMA PREVAILING IN THE CASE OF CHEMOSYN LTD. (SUPRA), RELIED ON BY THE LD. AR, WHEREIN THE ASSESSEE OWNED TWO PLOTS NOS. 256 & 257 AN D ENTERED INTO A DEVELOPMENT AGREEMENT ON 16-06-2006 WITH ONE M/S. DIPTI BUILDERS TO DEVELOP PLOT NO.257 FOR A CONSIDERATION OF RS.16.11 CRORE AND CONSTRUCTION OF 18,00 0 SQ.FT. OF BUILT UP AREA FREE OF COST ON PLOT NO.256. THER EAFTER ON 05-07-2007, A TRIPARTITE AGREEMENT WAS ENTERED INTO AMONGST M/S. DIPTI BUILDERS, A NEW BUYER AND THE ASSESSEE , UNDER WHICH BOTH THE PLOTS WERE TRANSFERRED TO THE NEW BUY ER AT A TOTAL CONSIDERATION OF RS.29.11 CRORE. IN THE RETURN OF INCOME FILED FOR THE A.Y. 2007-08, THE ASSESSEE REFLECTED CONSIDERATION ONLY OF RS.16.11 CRORE FOR THE PURPOSE OF CAPITAL GAIN TAX. THE AO HELD THAT THE VALUE OF 18000 SQ.FT. OF B UILT UP AREA WAS ALSO REQUIRED TO BE INCLUDED. THE TRIBUNAL ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 12 DECIDED THE ISSUE IN ASSESSEES FAVOUR. IN APPEAL BY THE REVENUE, THE HONBLE HIGH COURT OBSERVED THAT THE AGREEMEN T ENTERED INTO WITH M/S. DIPTI BUILDERS ON 16-06-2006 STOOD RESCINDED AND SUBSTITUTED WITH A NEW TRIPARTITE AGREEMENT ON 05-07-2007. THE ASSESSEE OFFERED CONSIDERATION OF RS. 16.11 RECEIVED FROM M/S. DIPTI BUILDERS PURSUANT TO THE FIRST AGREEMENT IN ITS RETURN OF INCOME FOR THE A.Y. 2007-08 AND THE REMAINING AMOUNT OF RS.13.00 CRORE (RS.29.11 RECEIVED V IDE TRIPARTITE AGREEMENT AS REDUCED BY RS.16.11 CRORE RECEIVE D FROM M/S. DIPTI BUILDERS PURSUANT TO THE FIRST AGREEMENT AND ALREADY DECLARED FOR TAXATION IN EARLIER YEAR) WAS OFFERED FOR TAXATION FOR THE A.Y. 2008-09. ONCE THE ORIGINAL AGREEMENT WITH M/S. DIPTI BUILDERS STOOD CANCELLED AND SUBSTITUTED WITH A NEW TRIPARTITE AGREEMENT, THE HONBLE HIGH COURT HELD THAT THERE WAS NO CASE OF INCOME ACCRUING OR ARISING IN THE FOR M OF 18000 SQ.FT. CONSTRUCTED AREA PURSUANT TO THE FIRST CONTRACT. 13. IT IS OBVIOUS THAT THE FACTS AND CIRCUMSTANCES OF TH AT CASE ARE NO MATCH TO THE FACTS UNDER CONSIDERATION. IN THAT CASE , THE ORIGINAL AGREEMENT, UNDER WHICH 18000 SQ.FT. OF CONSTRUCTE D AREA WAS TO BE ALLOTTED TO THE ASSESSEE ALONG WITH SUM OF ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 13 RS.16.11 CRORE, WAS CANCELLED AND SUBSTITUTED WITH A NEW AGREEMENT UNDER WHICH THE ASSESSEE WAS GIVEN A COMPOSITE CONSIDERATION OF RS.29.11 CRORE. THAT ASSESSEE OFFERED FULL AMOUNT OF RS.29.11 CRORE IN TWO YEARS IN WHICH THE AMOUNT S WERE RESPECTIVELY RECEIVED. OBVIOUSLY, WHEN THE AGREEMEN T PROVIDING 18000 SQ.FT. GOT CANCELLED, AND IN LIEU OF SUCH CONSIDERATION IN KIND, THE ASSESSEE WAS A ALLOTTED FURTHER SU M OF RS.13.00 CRORE, THERE COULD HAVE BEEN NO QUESTION OF TAXING THE VALUE OF 18000 SQ.FT. OF CONSTRUCTED AREA BECAUSE TH E CONSIDERATION OF RS.13.00 CRORE, GRANTED IN LIEU OF THE AR EA, WAS DULY OFFERED FOR TAXATION. AU CONTRAIRE, THERE IS ONLY ONE AGREEMENT BETWEEN THE ASSESSEE AND SCTPL WHICH IS EFFECTIVE AND SURVIVING. IT HAS BEEN CLEARLY MENTIONED IN THE AGREEMENT THAT THE ASSESSEE CANNOT REVOKE THE SAME. SIMILARLY, THE DEVELOPER IS ALSO DEBARRED FROM CANCELLING THE AGREEMENT UNDER ANY CIRCUMSTANCE. THE TOTAL CONSIDERATION ON TRANSFER OF THE ASSESSEES LAND HAS BEEN DIVIDED INTO TWO COMPONENTS, RS.20.00 LAKH IN CASH AND 2000 SQ.FT. SALEAB LE AREA IN THE NEW BUILDING TO BE CONSTRUCTED WITHIN 8 YEARS FROM THE DATE OF AGREEMENT WITH COST OF RS.23.00 LAKH. THERE CAN ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 14 BE NO SITUATION IN WHICH THE ASSESSEE WOULD LOSE HER RIGHT OF RECEIVING 2000 SQ.FT. OF AREA. IT HAS BEEN CLEARLY SE T OUT IN THE SAID AGREEMENT THAT IN CASE THE DEVELOPER FAILS TO DELIVER POSSESSION OF THE CONSTRUCTED 2000 SQ.FT. AREA WITHIN A PER IOD OF 8 YEARS, HE WILL BE LIABLE TO PAY INTEREST @12%. ONCE SU CH RIGHT HAS ACCRUED ON TRANSFER OF THE LAND, THE SAME IS REQ UIRED TO BE INCLUDED IN THE FULL VALUE OF CONSIDERATION IN TERMS OF SECTION 48 OF THE ACT. SINCE THE CONSIDERATION IN KIND IS A PAR T OF THE FULL VALUE OF CONSIDERATION, IN MY CONSIDERED OPINION , THE AUTHORITIES BELOW HAVE RIGHTLY DEALT WITH THE MATTER. IT IS FURTHER SEEN THAT THE LD. CIT(A) HAS APTLY DETERMINED THE PRESENT VALUE OF RS.23.00 LAKH, BEING, VALUE OF 2000 S Q.FT. OF CONSTRUCTED AREA, AT THE CURRENT VALUE OF RS.9,68,561/-, FOR WHICH THE ADDITION HAS BEEN SUSTAINED. 14. I, THEREFORE, UPHOLD THE IMPUGNED ORDER ON THIS SCORE. 15. NO ARGUMENT WAS ADVANCED IN SUPPORT OF GROUND NO. 3 FOR GRANT OF EXEMPTION U/S.54F IN RESPECT OF INVESTMENT IN TH E HOUSE TO BE RECEIVED AS CONSIDERATION. THE SAME IS, THERE FORE, DISMISSED. ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 15 16. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND FEBRUARY, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 22 ND FEBRUARY, 2019 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-2, NASHIK 4. THE PR. CIT-2, NASHIK 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO. 540/PUN/2018 SMT. PRATIBHA R. CHOWDHARY 16 DATE 1. DRAFT DICTATED ON 21-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 22-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *