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2019 (5) TMI 537 - ITAT MUMBAILong Term Capital Gain - Transfer of the possessory rights of the property under consideration - co-ownership of the property by Sh. Kishore B Dalal and Sh. Ashok Bhatia/his legal heirs - Transfer of a property on the basis of general power of attorneys - portion of property of Sh. Kishore B Dalal was also in possession of legal heirs of Late Sh. Ashok Bhatia - The legal heirs of Late Sh. Ashok Bhatia viz. the assessee i.e Sh. Prem Ashok Bhatia, Smt. Kavita Ashok Bhatia (widow) and Sh. Gaurav Bhatia (son), had in lieu of the aforesaid consideration of ₹ 5,85,00,000/- handed over the actual and physical possession of the plot of land therein described in the “third schedule” forming part of the registered conveyance deed to the aforementioned purchasers - capital gain OR income from other sources HELD THAT:- As regards the extract of the land records as per the land revenue records and the title search report of Mr. M.S Rodrigues, Advocate, we are of the considered view that as the said documents only affirm the undisputed fact of co-ownership of the property by Sh. Kishore B Dalal and Sh. Ashok Bhatia/his legal heirs, therefore, the same would in no way assist for either supporting or dislodging the claim of the assessee that the actual physical possession of the property under consideration had remained with Sh. Ashok Bhatia and thereafter with his legal heirs. Clause 19 of the registered conveyance deed categorically evidences the fact that the assessee along with the other two legal heirs of late Sh. Ashok Bhatia viz. Smt. Kavita Bhatia (mother of the assessee) and Sh. Gaurav Bhatia (brother of the assessee) had in equal shares received an amount aggregating to ₹ 5,85,00,000/- in lieu of handing over the actual and physical possession of the property under consideration to the purchasers who had agreed to pay the said amount to the legal heirs after obtaining the consent of the vendor i.e. Sh. Kishore B Dalal. In our considered view, it would be relevant to cull out Clause 19 of the registered conveyance deed which contemplates the reason for making of the payment of ₹ 5,85,00,000/- by the purchasers of the property to the legal heirs of late Sh. Ashok Bhatia. As was discernible from the registered conveyance deed, assessee who as acknowledged by all the concerned parties held a possessory right in the property under consideration had received the amount of ₹ 1,95,00,000/- on account of transfer of such rights or interest in the property under consideration, therefore, the same was rightly offered for tax by him under the head “Capital Gains”. In the backdrop of our aforesaid observations, we thus not finding any infirmity in the order passed by the CIT(A) who had rightly arrived at the aforesaid conclusion after deliberating on the facts of the case and distinguishing the judicial pronouncements relied upon by the A.O, uphold the same. - Decided against revenue
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