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2010 (2) TMI 153 - HC - Income TaxCapital Gain- Transfer- The assessee the owner of the property entered into n agreement with a firm to sell the property for consideration of Rs. 25 lakhs. At the time of signing the agreement she received advances. She also obtained a no objection certificate from the authorities under Chapter XX-C of the Income Tax Act, 1961. However, she did not execute any sale deed in favour the agreement holder. But, on their request she executed a power of attorney in favour of an individual authoriging him to do various acts with reference to the property including execution of deed or deeds of conveyance. The property was sold four different lots. The assessee purchased a residential property for a total consideration of Rs. 10,70,000 and filed a return for the assessment year 1994-95 and reported a capital gain from the sale of the property treating the transfer of possession to the proposed vendees as having resulted in a transfer for the purpose of section 2(47). Thereafter she filed a statement revising the net capital gain claiming that there was no transfer during the assessment years 1993-95, 1994-95 and that the actual transfer was made in the assessment year 1995-96. The Assessing officer noticed that she had invested a sum of Rs. 4,60,000 in a site for the purpose of construction of residential house thereon and the unutilized capital gain had not been deposited in the capital gains scheme account and determined the long term capital gain and subjected it to tax. Held that- the subsequent act of the assessee in executing the power of attorney and the sale deed executed by power holder on the basis of such power of attorney would not in any way alter the status of the parties to the agreement for applicability of section 53A of the Transfer of property Act, 1882. The single judge rightly held that the assessee could no longer assert possessory rights against the firm to which possession was already given pursuant to the agreement and that too after receiving the full sale consideration.
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