Question And Answer
Subject: capital gain
Querist: bs
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Date: November 25, 2022
Query asked by bs

Is it possible to defer tax on capital gain by making a clause in agreement that transfer is piecemeal on payment only ?

Is it possible to adopt cash basis of accounting for capital gain ?

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Answer given by

Depends on the facts of the case and clauses in the agreement . Capital gain is chargeable on handing over of possession . In PCIT v. Talwalkars Fitness Club. (2018) 409 ITR 37 (Bom.)(HC) the Court held that Vendor was in possession till total consideration was paid . Transfer is not complete though the agreement is registered. In CIT v. Hemal Raju Shete (Mrs.) (2016) 136 DTR 417 / 239 Taxman 176 (Bom.)(HC) the Court held that deferred consideration dependent on a contingency does not accrue unless the contingency has occurred and is not liable to capital gains tax in year of transfer .In CIT v. Eastern Ceramics Ltd. (2013) 219 Taxman 66(Mag.) (Bom.)(HC) held that as per Joint development agreement neither possession was given nor consideration was received only advance was received ,capital gains cannot be assessed In CIT v. Geetadevi Pasari (2009) 17 DTR 280 (Bom.)(HC) the court held that capital gain on sale of immovable property was chargeable to tax in the year in which actual physical possession of the property is given to the purchaser even though the agreement is entered into in earlier year.

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