TMI Blog2009 (6) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... thin six months from the date of transfer of the property - Held that: As per the provision of s. 263, neither by the conduct of the assessee there is loss to Revenue nor the conduct of the assessee is prejudicial to the interests of the Revenue; rather the assessee was fair enough to deposit the amount immediately after receipt of the same as advance payments on the basis of the agreement to sale - Thus, the assessee succeeds in this appeal - - - - - Dated:- 17-6-2009 - Member(s) : N. L. DASH., V. K. GUPTA. ORDER-N.L. DASH, J.M.: Aggrieved with the order passed under s. 263 by the CIT, the assessee-HUF has come in appeal before the Bench with the following six grounds: "1. The CIT erred in invoking the provisions of s. 263 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 10th May, 1983 [(1983) 36 CTR (TLT) 1] which was rejected by the CIT holding that it was not applicable as it was under the earlier s. 54E and s. 54E did not apply in the assessee's case. Para 3 of the order under s. 263 passed by the CIT is quoted below for better appraisal of the fact: "3. (i) The preliminary objection against the notice under s. 263 is that the AO had already considered the issue in the course of the assessment proceedings and that issue of notice on the same issue amounts to change of opinion. This objection has no merit. The AO could not have decided the issue in the assessee's favour since the statute is very clear on the issue. The AO committed a patent mistake and such a mistake cannot be allowed to remain unco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983 is inapplicable to the provisions of s. 54EC. Accordingly, I hold that the AO erroneously allowed the benefit of deduction under s. 54EC to the assessee." 4. Being specifically asked by the Bench, the learned Authorised Representative submitted the copy of sale deed dt. 9th Oct., 2003, copy of agreement dt. 30th April, 2002 and copy of certificate of investment made in specified assets i.e., bonds under s. 54EC. On a perusal of all these papers and documents it transpires that there is no dispute as to the factual contention made by the assessee, both the AO and the CIT do not dispute the same. 5. The fact remains that it is on an interpretation of the provision of s. 54EC that the CIT has invoked s. 263. Sub-s. (1) of s. 54EC rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he advance in consonance with the agreement. But factually we do not find any infirmity in the conduct of the assessee by depositing the amount on the basis of the advance received as per the agreement. Even legally the Revenue should not be so strict on interpretation as because the Act has to be read as a whole and different provisions of different sections are to be read together. It will not be out of place to mention here that as per the provisions of s. 2(47) the word "transfer" has a much wider meaning as contemplated in the IT Act, 1961 itself. Sec. 2(47) is quoted below: "'transfer', in relation to a capital asset, includes,- (i) the sale, exchange or relinquishment of the asset; or (ii) the extinguishment of any rights there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that me contract, though required to be registered, has not been registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come from the property in his own right. The requirement of registration of the sale deed in the context of s. 22 is not warranted. 7. Even without going to all the strict interpretations, even otherwise on receipt of advance as per the agreement, if the assessee deposited the amount as required under s. 54EC, he cannot be treated as a defaulter for the same. 8. With the aforesaid analytical observation on both the factual aspect as well as the aspect on legal interpretation, we decline to agree with the CIT for invoking s. 263 in this particular case. As per the provision of s. 263, neither by the conduct of the assessee there is loss to Revenue nor the conduct of the assessee is prejudicial to the interests of the Revenue; rather the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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