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2019 (7) TMI 30 - HC - Income TaxCapital gain computation - year of taxation - transfer u/s 2(47) - Tribunal held that capital gain is taxable in the assessment year 2010-11 only because sale deed executed on 27.4.2009 ignoring part performance of a contract u/s 53A of TPA - HELD THAT:- Any 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 in Section 53A. Explanation 2 makes it abundantly clear that “transfer” includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether entered into in India or outside India) or otherwise, notwithstanding that such transfer of rights has been characterised as being effected or dependent upon or flowing from the transfer of a share or shares of a company registered or incorporated outside India. The above Explanation comes to the aid and assistance of the assessee and in the instant case, the assessee has received consideration, handed over possession of the property, executed registered Power of Attorney in favour of the holder empowering him to absolutely deal with the property and the arrangement is covered by an agreement for sale. Thus, the agreement for sale should not be read in isolation, but should be read in conjoint with the power of attorney which in sum and substance is irrevocable. We find from the circular issued by the CBDT in Circular No.495 dated 22.09.1987, which is Explanatory Notes on the provisions relating to direct taxes and in the said circular, the Board discusses about the definition of “transfer” which had been widened to include paragraph 11.2. In terms of the above circular, the newly inserted sub-Clause (vi) of Section 2(47) of the TP Act has brought into the ambit of “transfer”, practice of enjoyment of property rights through what is commonly known as Power of Attorney arrangements. Tribunal committed an error in holding that the transfer took place only on the date of sale deed which was executed on 27.04.2009. As observed earlier, in respect of the other co-owners, they have succeeded either before the CIT(A) or before the Tribunal and those orders are attained finality. Order passed by the Tribunal calls for interference. - Decided in favor of assessee.
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